WOMAN BREAKS QUARANTINE BY CONCEALING HERSELF IN A CAR BEING TRANSPORTED BY A TRUCK AT THE EUCLA BORDER, APPEALS 6 MONTHS IMMEDIATE IMPRISONMENT
Vander Sanden v Johnson
[2020] WASC 331
This is an appeal against the sentence of 6 months and 1 day imprisonment for failure to comply with Quarantine Directions made under the Emergency Management Act 2005. Woman entered Western Australia from Victoria concealed in a truck and did not comply with 14-day quarantine upon arrival.
Facts:
- On 15 March 2020 a state of emergency was declared in Western Australia in response to the declaration by the WHO that COVID-19 was a pandemic. Pursuant to the Emergency Management Act 2005, directions were made effectively closing the borders of Western Australia to all except for exempt travellers.
- On 30 July 2020, Ms. Vander Sanden was granted an approval to enter Western Australia from Victoria, where she had been for approximately 1 month visiting and assisting her sister who was unwell. The approval included a requirement that upon arrival, she must quarantine for 14 days at a quarantine centre at her own expense.
- Between 31 July and 1 August, Ms. Vander Sanden was in Mildura, in north-west Victoria and requested a lift from a truck driver, who agreed to take her to Perth. She passed through the Eucla border control point hidden in a car being transported by the truck. On arrival, her partner drover her to an address in Scarborough. She was already aware at that point that the police was trying to locate her.
- On 11 August 2020, the police located Ms. Vander Sanden and obtained full admissions to the offence.
- Vander Sanden was charged with failure to comply with 'a direction given under the Emergency Management Act 2005, contrary to s 86(1)(a) of the Act.
- Vander Sanden pleaded guilty and was sentenced to immediate imprisonment of 6 months and 1 day.
- She appeals the sentence, claiming that it is manifestly excessive.
Issue: Was the sentence of immediate imprisonment of 6 months and 1 day manifestly excessive? Is it proper to suspend part or all of the sentence?
Law:
- Section 86(1) of the Emergency Management Act 2005 creates the offence of failure to comply with a direction under s 67, s 70, s 71 and s 72A of the Act. In July 2020, it was amended to require anyone entering Western Australia from Victoria and New South Wales to quarantine at a quarantine centre. The maximum penalty is imprisonment for 12 months or a fine of $50,000. The imposition of a term of imprisonment was introduced into the Act in April 2020 specifically in response to the COVID-19 pandemic.
- 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.
- 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.
- 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.
Analysis:
- 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.
- The sentencing judge considered that 8 months or more was appropriate for the offence. Thereafter, his Honour imposed a 25% discount to the head sentence, making it 6 months and 1 day. This would place the offending at the upper end of seriousness of the offence, given the maximum term of imprisonment of 12 months.
- Vander Sanden’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.
- However, her 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.
- In this case, where a wholly or partially suspended sentence was a realistic sentencing option open to sentencing judge, his Honour should have explained, albeit briefly, why he did not consider either of these less severe options was appropriate.
- 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.
Conclusion:
A sentence of immediate imprisonment of 6 months and 1 day should not have been imposed. Ms. Vander Sanden will be re-sentenced to a community-based order of 6 months, which 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.
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