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Vander Sanden v Johnson

Vander Sanden v Johnson

Case [2020] WASC 331 15 September 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   VANDER SANDEN -v- JOHNSON [2020] WASC 331
CORAM:   HILL J
HEARD:   11 SEPTEMBER 2020
DELIVERED          :   15 SEPTEMBER 2020
FILE NO/S:   SJA 1064 of 2020
BETWEEN:   ASHER FAYE VANDER SANDEN
Appellant

AND

DAVID JOHNSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A MATTHEWS
File Number            :   PE 37829 of 2020

Catchwords:

Criminal law - Appeal against sentence - Sentence of imprisonment of 6 months and 1 day imposed for failure to comply with Quarantine (Closing the Border) Directions made under the Emergency Management Act 2005 (WA) - Appellant entered Western Australia from Victoria - Purpose of Directions to manage risk of COVID‑19 pandemic - Matters to be taken into account when sentencing for failure to comply with Directions - Whether sentence manifestly excessive - Whether magistrate erred in failing to consider whether to suspend sentence of imprisonment - Appeal allowed - Appellant re-sentenced

Legislation:

Criminal Appeals Act 2004 (WA)
Emergency Management Act 2005 (WA), s 61, s 67, s 70, s 72A, s 86(1)
Official Prosecutions (Accused's Costs) Act 1973 (WA)

Result:

Application for leave to appeal granted on grounds 1 and 2
Appeal allowed on ground 1
Appellant re-sentenced

Category: A

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Hammond Legal
Respondent	:	Director Of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Birch v Binnekamp [2018] WASC 58
Cartwright v The State of Western Australia [2010] WASCA 4
Colbung v The State of Western Australia [2006] WASCA 239
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Fogg v The State of Western Australia [2011] WASCA 11
Lowndes v The Queen [1999] HCA 29; (1999) 185 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 257
Mikulic v The State of Western Australia [2009] WASCA 150; (2009) 197 A Crim R 94
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

HILL J:

On 15 March 2020, in response to the declaration by the World Health Organisation on 11 March 2020 that COVID-19 was a pandemic, a state of emergency was declared in Western Australia pursuant to s 56 of the Emergency Management Act 2005 (WA) (Act). On 5 April 2020, directions were made under s 61, s 67, s 70 and s 72A of the Act effectively closing the borders of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vander Sanden v Johnson

Details

AGLC: Vander Sanden v Johnson [2020] WASC 331
Case: [2020] WASC 331
Decision Date: 15 SEPTEMBER 2020

CaseChat Overview and Summary

Vander Sanden appealed against the sentence of imprisonment imposed for failing to comply with the Quarantine (Closing the Border) Directions made under the Emergency Management Act 2005 (WA). The appellant entered Western Australia from Victoria in contravention of the Directions, which were designed to manage the risk of the COVID-19 pandemic. The sentencing magistrate imposed a sentence of imprisonment of six months and one day, which the appellant contended was manifestly excessive. The appellant also argued that the magistrate erred by failing to consider whether to suspend the sentence of imprisonment.

The court identified the legal issues as whether the sentence was manifestly excessive and whether the magistrate erred in failing to consider whether to suspend the sentence of imprisonment. The court examined the statutory framework and relevant case law, considering the principles of sentencing for offences under emergency legislation and the purpose of the Directions. The court found that the sentence was manifestly excessive and that the magistrate had erred by failing to consider whether to suspend the sentence of imprisonment. The court held that the sentence should be quashed and the appellant re-sentenced.

The court quashed the sentence of imprisonment and remitted the matter to the sentencing magistrate for re-sentencing. The court emphasised the importance of considering the principles of sentencing for offences under emergency legislation and the purpose of the Directions, and the need for a sentence that is proportionate to the offending and the interests of justice. The court also noted that the appellant had no previous convictions and had cooperated with the authorities, and that the Directions did not explicitly state that imprisonment was the only appropriate sentence for failure to comply with them. The court's decision highlights the importance of considering the individual circumstances of each case and the need for a balanced approach to sentencing in emergency situations.

Orders