MAN IMPRISONED FOR VIOLATING SAFETY PROTOCOLS DUE TO COVID APPEALS HIS SENTENCE

TONKIN -v- BUSBY [2021] WASC 6  (9 March 2021)

This is an appeal against a sentence for the appellant’s failure to comply with the direction under the Emergency Management Amendment (COVID-19 Response) Act 2020 alleging that the sentence imposed was manifestly excessive.

Facts:

The appellant was doing quarantine. He had a test on day 1 during his period of quarantine.  He wasn't coping, he was prescribed Valium.  He had a negative test on day 11, which returned on the next day, and, based on the fact he had no symptoms, he made a very poor decision to go out.  He consumed alcohol and behaved in a way that is out of character for him.

On 21  January 2021, the appellant pleaded guilty to one charge of failure to comply with a direction given under the  Emergency Management Amendment (COVID-19 Response) Act 2020. He was sentenced to imprisonment for 7 months, with 2 months to be served immediately and 5 months suspended for 12 months. The appellant seeks leave to appeal from that sentence. The appellant raised the ground that the sentence was manifestly excessive having regard to all relevant factors.

First, the respondent submitted that assessment of the seriousness of an offense by reference to the maximum penalty needs to take into account the range of conduct that the offense encompasses. Second, the respondent submitted that the seriousness of an offense constituted by a failure to comply with a direction will depend on, at least: the nature and seriousness of the hazard giving rise to the emergency; whether the direction is made in the context of an emergency situation or state of emergency; and the extent to which successfully containing the threat posed by the hazard depends upon compliance with the direction.

Issue: Should appeal against the sentence be allowed?

Law:

• S6 of the Sentencing Act.

Analysis:

In determining whether a sentence is manifestly excessive, the sentence must be considered in the light of: (1) the maximum sentence prescribed by law for the offense; (2) the standards of sentencing customarily imposed with respect to it; (3) the place that the criminal conduct occupies in the scale of seriousness of offenses of that type; and (4) the offender's personal circumstances.

The maximum sentence is imprisonment for 12 months. There is the alternative of a fine up to $50,000. The critical issue is the place this appellant's conduct occupies in the scale of seriousness for offenses of this type. The respondent submitted that the offense was so grave as to warrant a sentence approaching the maximum.

The sentencing magistrate expressly found that imprisonment was the only appropriate sentence. That conclusion, in the court’s opinion, is unreasonable and plainly unjust when regard is had to the particular circumstances of the appellant's offending and, in particular, the fact that the offense was committed on day 12 after receiving the negative test result from the second test on day 11.  The learned magistrate regarded those matters as irrelevant.  They were not.  But it is not necessary to identify specific error. The result was the imposition of a custodial sentence when that was not warranted.

Conclusion: The court hereby grants leave and allows appeal.

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