VANDER SANDEN -v- JOHNSON [2020] WASC 331 (15 September 2020)

1. There are two grounds of appeal against the sentence imposed by the learned magistrate. First, that the sentence of immediate imprisonment was manifestly excessive. Second, the learned magistrate erred and/or there was a miscarriage of justice in failing to consider, adequately or at all, the imposition of a suspended term of imprisonment.
2. The appellant requires leave to appeal.[2] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[3]

1. On 30 July 2020, the appellant was granted an approval to enter Western Australia from Victoria, where she had been for approximately one month visiting and assisting her sister who was unwell. On her arrival back into Western Australia, the appellant was required to comply with any terms or conditions of the approval, including a quarantine direction.[4] The approval included a requirement that she quarantine for 14 days at a quarantine centre at her own expense.[5]
2. Between 31 July and 1 August, the appellant was in Mildura, in north‑west Victoria and requested a lift to Perth from a truck driver, who agreed to take her to Perth. Between 3 and 4 August, she passed through the Eucla border control point hidden in a car being transported by the truck. On arrival, she contacted her partner to collect her from an unknown petrol station in Midland. The appellant's partner then drove her to an address in Scarborough.[6] Between 5 and 11 August 2020, the appellant was aware that police were trying to locate her but, despite numerous opportunities, failed to inform the police of her location.
3. On 11 August 2020, the police attended the address at which the appellant was located. She participated in an interview and made full admissions to the offence.[7]
4. On the same date, 11 August 2020, the appellant was charged with a failure to comply with 'a direction given under ss 61/67/70/72A' of the Emergency Management Act 2005, contrary to s 86(1)(a) of the Act. The particulars of the offence included that this failure occurred between 30 July 2020 and 11 August 2020. She was remanded in custody and appeared in the Perth Magistrates Court on 12 August, 13 August and 25 August 2020. I note that each of these appearances were for mention only.

1. When the appellant came before the learned magistrate on 25 August 2020, she pleaded guilty to the offence of which she was charged. Counsel for the respondent informed the court of the factual background of the offence as summarised above.
2. The statement of facts was admitted by the appellant.[8] In the plea in mitigation, counsel who appeared for the appellant before the learned magistrate emphasised that the appellant had pleaded guilty at the earliest opportunity and that after entering Western Australia, she had self‑quarantined at a friend's house and had no contact with any person other than this friend after her arrival in Western Australia.
3. In respect of her personal antecedents, counsel for the appellant drew the court's attention to the following matters. The appellant is 28 years old and has a criminal record. Her record was said to be related to her methylamphetamine habit which 'has been addressed'.[9] She is currently unemployed and has a very low capacity to pay a substantial fine. Counsel for the appellant contended that the sentences imposed for this offence had generally been fines and, by inference, submitted this was the appropriate sentence.[10]
4. Counsel for the respondent submitted that the only appropriate sentence was immediate imprisonment. Counsel who appeared for the respondent before the learned magistrate did not dispute the contention that the appellant had, in effect, self-quarantined since her arrival in Perth.
5. The learned magistrate proceeded to sentence the appellant, giving the following reasons:[11]

HIS HONOUR: Thank you. Ms Vander Sanden comes before ‑ and the penalty is 12 months imprisonment, isn't it? The maximum. Yes. Ms Vander Sanden, you are 28 years of age; you perhaps don't have the benefit of youth. But in relation to the offence for which you've now pleaded guilty and been convicted. It is a very serious offence. You've admitted the facts which disclose that you concealed yourself in a car inside a truck. You didn't declare yourself at the border at Eucla. Your full cooperation after that really is little mitigation for your conduct in coming back into Perth the way you did. If you had just declared yourself at the border, you perhaps wouldn't find yourself in custody. And how long have you been in custody now?

ACCUSED: Two weeks, your Honour.

HIS HONOUR: So since the 13th or the 12th?

ACCUSED: 12th.

HIS HONOUR: 12th. And, look, the fact that you've come from Victoria is particularly concerning, given that that's really the hot spot for COVID-19 in Australia. And your conduct and actions really undoes what this government in WA has done to, you know, prevent the community spread of this hideous virus. So you would understand yourself, you're going to see your sister and while I have some compassion and sympathy for noble efforts to see your sister and provide her with some comfort. You've really ‑ just counterproductive now is the fact that you've now potentially brought the spread of COVID-19 back into this state.

So, look, deterrence does loom large, both specific and general. Look, I will give you a full 25 per cent discount for your plea of guilty at the first reasonable opportunity. But having taken into consideration the discount 25 per cent, other mitigating factors personal to yourself are still ‑ and the fact that the police are seeking immediate imprisonment ‑ I'm inclined to impose that term of immediate imprisonment, but it will be for a term of six months and one (indistinct). That sentence will be backdated to 12 August and that's ‑ and you will be eligible for parole.

1. Before turning to the grounds of appeal, it is important to first consider the statutory regime of the specific offence to which the appellant pleaded guilty.
2. The purpose of the Emergency Management Act 2005 is to allow for prompt and coordinated organisation of emergency management in Western Australia.[12] Prior to March 2020, the Act had only been used in response to natural disasters where emergency situations had been declared under s 50 of the Act.[13]
3. Section 86(1) of the Act creates the offence of failure to comply with a direction under s 67, s 70, s 71 and s 72A of the Act. The maximum penalty is imprisonment for 12 months or a fine of $50,000.[14] The imposition of a term of imprisonment was introduced into the Act in April 2020 specifically in response to the COVID-19 pandemic.[15]
4. On 15 March 2020, a state of emergency was declared with effect from midnight on 16 March 2020. Since that date, the declaration has been regularly renewed.
5. Under s 61, s 67, s 70 and s 72A of the Act, Quarantine (Closing the Border) Directions (Directions) were made which came into effect at 11.59 pm on 5 April 2020.[16] These Directions have been amended from time to time as the circumstances of the COVID‑19 pandemic have developed. Specifically, the Directions include the following:

(a) a person must not enter Western Australia unless they are an exempt traveller (direction 4) which includes any person who obtains approval in writing to enter the state (direction 27(r)); and

(b) a person must comply with any direction given to them including any terms and conditions to which their entry or an approval granted to them is subject (direction 15).

1. In July 2020, in response to the significant increase in community transmission of COVID-19 in Victoria, the Directions were amended to impose further restrictions on people who had been in Victoria in the previous 14 days (direction 5(e))[17] and subsequently, in New South Wales.[18] The Directions require anyone entering Western Australia from these states to quarantine at a quarantine centre.

Principles governing appeals from the Magistrates Court

1. It was not in dispute that an appellate court is not entitled to intervene simply because it would have exercised the sentencing discretion differently to the sentencing judge.[19]
2. An appellate court may intervene where there is a material fact or error in the reasons of the sentencing judge. Where there is an express material error, the court can, without more, intervene. Error may be inferred if the result is manifestly excessive.[20]
3. Even if a sentencing judge has made an error, the court should only allow an appeal if, in its view, a different sentence should have been imposed.[21]
4. In considering the reasons of the learned magistrate, it is important to keep in mind the large volume of cases that they are required to manage and conduct efficiently. The court should not scrutinise their reasons for decision with a fine-tooth comb or with an eye keenly attuned to identify error.[22]

Ground 1 - Whether sentence was manifestly excessive

1. Buss JA(as he then was) in Mikulic v The State of Western Australia summarised the approach that the court should take on this ground of appeal in the following terms:[23]

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

'Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].'

And see Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] ‑ [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts‑Smith JA).

1. Where, as in this case, there are limited sentences that have been imposed for the offence, it is important to have regard to the fact that 'the administration of criminal justice works as a system; it should be systematically fair'.[24]
2. As was noted by Martin CJ in Rubin v The State of Western Australia:[25]

A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the type of sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment.

1. Different judicial officers may reasonably and legitimately differ as to the appropriate sentence that should be imposed within the exercise of sound discretionary judgment. In the absence of express error, appellate courts should not intervene unless the outcome is unreasonable or unjust.[26]
2. In sentencing the appellant, the learned magistrate was required, under s 6(1) of the Sentencing Act 1995 (WA), to impose a sentence that was commensurate with the seriousness of the offence taking into account the statutory penalty, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.
3. Relevantly:

(a) a sentence of imprisonment 'must not' be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it;[27]

(b) where the offender pleads guilty, the court may reduce the head sentence for the offence by up to 25%, where, as in this case, the offender pleaded guilty at the first reasonable opportunity.[28] In considering the discount to be given, the court will take into account, amongst other things, the strength of the prosecution case;[29]

(c) given the statutory penalty was imprisonment or a fine, the court could impose either a fine which was not more than the maximum fine or a 'sentencing option' in s 39(2) of the Sentencing Act, listed within the options set out after s 39(2)(c). This included the imposition of a community based order (d), an intensive supervision order (e), a suspended or conditionally suspended term of imprisonment ((f) and (g)), or imprisonment (h);

(d) before imposing a term of imprisonment, the court must be satisfied that it is not appropriate to impose one of the other options available to the court, including a suspended or conditionally suspended sentence;[30]

(e) the court is not required to expressly refer to a sentencing option if that option is not realistically open. However, if two or more options are realistically open, the court should refer to why the less severe option or options are not appropriate;[31] and

(f) the court must not sentence an offender to a term of six months or less unless, inter alia, the aggregate of the term imposed and any other term or terms imposed by the court is more than six months.[32]

1. The maximum sentence for the offence is 12 months.
2. In considering whether there are any standards of sentencing for the purpose of determining whether a sentence is manifestly excessive or inadequate, in this State, comparable cases comprise only decisions of the Court of Appeal or its predecessor.[33]
3. In this case, there are no relevant comparable cases. This is the first appeal to this court from a sentence imposed under the Act and there have been no appeals to the Court of Appeal. This is not surprising given the recency of the introduction of imprisonment as a penalty for this offence.
4. The respondent filed an affidavit which disclosed that sentences of partially suspended imprisonment have been imposed by various magistrates for this offence. This evidence was adduced to respond to the submission made by counsel for the appellant at the hearing before the magistrate that fines were 'generally' imposed for these offences.
5. These cases are not comparable cases for the purposes of determining whether there are any standards of sentencing. In any event, I note that in each of these matters, the accused had entered the quarantine regime and then failed to comply with the Directions.

1. It is likely that there will be a great variation in the facts and circumstances of the offence of which the appellant was charged. The sentence to be imposed in any particular case will depend on the individual facts and circumstances, after having regard to the maximum available penalty of 12 months.
2. The purpose of the Directions is to ensure, as far as is possible, that community transmission of COVID-19 is eliminated from Western Australia and that, once eliminated, it is not re-introduced. The directions seek to achieve this by, amongst other things, a 14 day quarantine regime for entrants into Western Australia. Compliance with the quarantine regime maximises the prospects that first, any cases of COVID-19 are identified before the person can move freely within the general population and second, contact tracing is simplified.
3. Given this purpose, the matters that are important to an assessment of the seriousness of an accused's conduct are the extent to which the accused has sought to avoid the quarantine regime operating under the Directions, the extent to which they have complied with the quarantine regime (including whether they have entered a quarantine facility), whether they have exposed members of the community of Western Australia to the risk of COVID-19, and whether they have been or are likely to have been exposed to COVID-19.
4. I also consider, for the following reasons, that the state or territory from where the appellant travelled from is a relevant factor in assessing the seriousness of the appellant's conduct. First, a distinction is made in the Directions between travellers from Victoria and New South Wales as opposed to visitors from other states or territories. Second, it was well publicised at the time the appellant entered Western Australia, that Victoria was experiencing sustained uncontrolled community transmission of COVID-19. At present, COVID-19 has caused the deaths of over 700 Victorians.
5. As was noted by the learned magistrate, which I accept, the major sentencing considerations for an offence of failure to comply with directions under the Act are general and personal deterrence. Matters personal to the offender will almost always be of limited consideration, although not irrelevant.
6. It is clear from the sentencing remarks of the learned magistrate that he considered that the appellant should be entitled to a discount of 25% as a consequence of her plea of guilty. While this ground of appeal is assessed by reference to the sentence imposed rather than a notional starting point, this implies that his Honour considered that a starting point of 8 months or more was appropriate. This would place the appellant's offending at the upper end of seriousness of the offence, given the maximum term of imprisonment of 12 months.
7. In this case, the appellant's culpability was significantly aggravated by her attempt to avoid the quarantine regime in Western Australia by her deception in entering Western Australia hidden in a truck and in knowingly avoiding police for seven to eight days. In addition, the appellant, as a traveller from Victoria, posed a far greater risk to public health in Western Australia than a traveller from a state with no community transmission.
8. However, the appellant's conduct did not have the aggravating factor of attendances at public places or events at private residences thereby potentially exposing other members of the public to COVID‑19. For this reason, I do not consider, nor was it contended by the respondent, that the appellant's offending fell into the most serious or worst case.
9. The fact that the appellant ultimately tested negative to COVID-19 is not relevant to the assessment of the seriousness of the appellant's offending and, as such, not a mitigating factor. This is because the Directions seek to address the risk of COVID-19 being reintroduced into Western Australia, and how this risk can best be managed. The Directions are not solely aimed at the management of people who have the virus.
10. In my view, by seeking to avoid the quarantine regime and failing to disclose her location to the police after becoming aware that they were trying to locate her, the appellant's offending was at the upper end of seriousness of the offence.

1. The appellant is 28 years old and has a criminal record. An offence is not aggravated by the fact that the offender has a criminal record; it simply means that there is no mitigation for good character. There were mitigating factors in the appellant's case, including, importantly, that the appellant entered a plea of guilty at the earliest possible stage.

1. Where the maximum sentence for the offence of failing to comply with a direction is considered with the appellant's personal circumstances, notwithstanding the seriousness of the appellant's conduct, the imposition of a term of imprisonment of 6 months and 1 day, after discounting the sentence by 25% for her plea of guilty, was unreasonable and plainly unjust and outside the range of a proper exercise of sentencing discretion.
2. As has been noted by this court previously, whenever a sentence of 6 months and 1 day is imposed, it raises a suspicion that the sentence has been increased to avoid the mandatory provisions contained in s 86 of the Sentencing Act. However, suspicion is not enough; it is necessary for an appellant to establish either an express or implied error.
3. Whilst there are no express errors in the sentencing remarks of his Honour, it is difficult to understand, with the greatest respect to the learned magistrate, how a sentence of immediate imprisonment could have been reached. In my view, while I do not consider that a pecuniary penalty was open given the seriousness of the appellant's conduct, options other than immediate imprisonment, including a suspended sentence or partially suspended sentence, were clearly both open and appropriate in all of the circumstances. In those circumstances, I consider a sentence of immediate imprisonment of 6 months and 1 day should not have been imposed.
4. For this reason, I would grant the appellant leave to appeal on ground 1 and allow the appeal on this ground.

Ground 2 - Whether learned magistrate erred in failing to consider whether to suspend part or all of the sentence

1. As the appellant has succeeded on ground 1 of the appeal, it is strictly not necessary for me to consider ground 2. However, for the sake of completeness, I will briefly consider this ground.
2. Before a court can impose a suspended term of imprisonment, it is necessary for the court to come to the view that an immediate term of imprisonment should be imposed. In determining whether or not to suspend or partially suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the accused.[34] In the absence of express error, it is for the appellant to satisfy the court that the discretionary judgment that suspension was not appropriate, was a conclusion that was not reasonably open.[35]
3. In this case, it was not in dispute that the learned magistrate did not expressly refer to whether the sentence should be suspended partly or at all. The respondent relied upon the statement by the learned magistrate that he was 'still ... inclined' to impose a term of immediate imprisonment as indicating that his Honour had considered whether a lesser sentence should be imposed.
4. The failure to expressly refer to a sentencing option does not require this court to conclude that the learned magistrate failed to consider and reject that as an alternative; it can be assumed that his Honour complied with his duties and considered all relevant matters.[36] However, in this case, where a wholly or partially suspended sentence was a realistic sentencing option open to the learned magistrate, I consider that his Honour should have explained, albeit briefly, why he did not consider either of these less severe options was appropriate.
5. In this case, for the reasons that I have set out in relation to ground 1, I consider that the learned magistrate's conclusion that the term of imprisonment should not be wholly or partially suspended was not a conclusion that was reasonably open to him.
6. Had I not considered that the appeal should succeed on ground 1, I would have granted leave to appeal and allowed the appeal on ground 2.

1. The appellant should have leave to appeal on both grounds of appeal. The appeal will be allowed on ground 1 and the sentence imposed by the learned magistrate set aside. Both parties agreed that in the event that I allowed the appeal, it was appropriate for me to re-sentence the appellant.[37]
2. Counsel for the appellant submitted that the appellant should receive either a wholly suspended sentence or a fine. Counsel for the respondent submitted that in the event I allowed the appeal on ground 1, which I have, a sentence of immediate imprisonment was not open.
3. In re-sentencing the appellant, I am required to take into account the time she has spent in prison. The appellant spent three weeks in prison before being released on bail.
4. Any sentence must take into account the appellant's plea of guilty and a discount of up to 25% on the head sentence. In this case, a discount of 25% is, in my view, higher than appropriate given the strength of the prosecution case. However, the plea of guilty demonstrated an acceptance of responsibility by the appellant for the offence she had committed and an expression of remorse.
5. While I consider a wholly or partially suspended sentence may well have been an appropriate sentence at first instance, it is not now possible for me to impose that sentence, taking into account the time the appellant has spent in custody. This is because it is not possible to impose a suspended sentence unless it is open to the court to impose a term of imprisonment of an equal length.[38]
6. In my view, given the seriousness of the offence of which the appellant has been convicted and the limited ability of the appellant to pay a fine, I do not consider that a fine is an appropriate sentence. If a fine was to be imposed, it would have to be a very significant penalty, given the maximum fine of $50,000, which is beyond the means of the appellant.
7. Having regard to the time the appellant spent in custody, the circumstances of the offence and the personal circumstances of the appellant, I consider that a community based order is the appropriate sentence. In imposing this sentence on the appellant, this should not be considered to be the sentence that should ordinarily be imposed for an offence against the Act where the offender has avoided the quarantine regime required by the Directions. I am imposing this sentence only because the appellant has spent three weeks in custody.
8. The appellant will be re-sentenced to a community based order of 6 months commencing today. The community based order will include a supervision requirement and community service requirement. The supervision requirement will require contact with a Community Corrections Officer as ordered, but at least once every eight weeks. The community service requirement will be that the appellant undertake 50 hours of community service work.

1. The appellant, in her written submissions, sought an order that the respondent pay her costs of the appeal.
2. The respondent in this case is a police officer acting in his official capacity. As such, s 20(1) of the Criminal Appeals Act expressly prohibits the court from making a costs order against him. While there is power under s 5 of the Official Prosecutions (Accused's Costs) Act 1973 (WA), to award costs to a 'successful accused', the appellant does not satisfy the definition of 'successful accused'.
3. Accordingly, there will be no order as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Quarantine (Closing the Border) Directions [5].

[2] Criminal Appeals Act 2004 (WA) s 9(1).

[3] Criminal Appeals Act s 9(2).

[12] See Western Australia, Second Reading Speech, Legislative Assembly, 17 August 2005 (Hon Michelle Hopkins Roberts).

[14] Emergency Management Act 2005 (WA) s 86(1)(a).

[15] Emergency Management Amendment (COVID-19 Response) Act 2020 (WA).

[16] Quarantine (Closing the Border) Directions, 5 April 2020.

[17] Quarantine (Closing the Border) Amendment Directions (No 2), 9 July 2020.

[18] Quarantine (Closing the Border) Amendment Directions (No 3), 19 July 2020.

[19] Lowndes v The Queen [1999] HCA 29; (1999) 185 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 257 [27].

[20] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [324] - [325].

[21] Criminal Appeals Act s 31(4)(a).

[22] Birch v Binnekamp [2018] WASC 58 [15]; Strahan v Brennan [2014] WASC 190 [90].

[23] Mikulic v The State of Western Australia [2009] WASCA 150; (2009) 197 A Crim R 94 [29] ‑ [30] (Buss JA).

[24] Mikulic v The State of Western Australia [33] citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [6] (Gleeson CJ).

[25] Rubin v The State of Western Australia [2016] WASCA 2; (2016) 75 MVR 274 [49] (Martin CJ).

[26] Fogg v The State of Western Australia [2011] WASCA 11 [9] - [10].

[27] Sentencing Act s 6(4).

[28] Sentencing Act s 9AA.

[29] Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [36].

[30] Sentencing Act s 39(3); Rubin v State of Western Australia [48].

[31] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ); Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 [42] (Pullin JA).

[32] Sentencing Act s 86.

[33] The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [55].

[34] DKN v The State of Western Australia [2018] WASCA 87 [36] citing with approval Cartwright v The State of Western Australia [2010] WASCA 4 [8].

[35] DKN v The State of Western Australia [39].

[36] Colbung v The State of Western Australia [2006] WASCA 239 [29].

[37] Criminal Appeals Act s 14(1).

[38] Sentencing Act s 76(2).