Applicant Opposes Sentence for Breach of Pandemic Orders

Gunn v Reardon and Rogers [2022] TASSC 10 (21 February 2022)

The applicant was charged with multiple breaches of family violence order and three breaches of COVID-19 pandemic public health requirements.  Two cumulative sentences totalling ten months' imprisonment with four months were imposed against him.  The Court, in determining whether or not to grant the applicant's motion for review, considered matters to be taken into account when sentencing for breach of public health requirements.

Facts:

On 21 April 2021, at the Albury Local Court the applicant was issued with an Apprehended Domestic Violence Order (ADVO), prohibiting any contact with Billie Dea Welsford.  New South Wales was deemed by Tasmania to be a high-risk jurisdiction, meaning that entry into Tasmania was not permitted without prior approval being granted.  Persons seeking entry into Tasmania from a high-risk jurisdiction were required to apply using the Good-2-Go (G2G) pass application.  Persons seeking entry from low-risk jurisdictions were required to complete a Tas E-Travel Pass. Neither the G2G or E-Travel passes have statutory force, but they were a mechanism for assisting entry to Tasmania.

The applicant applied for a G2G Pass on 28 September, which was rejected on 29 September. He applied for a second G2G Pass on 1 October, and in that application he gave the impression that he was returning home to Tasmania – which was not true, but was not the subject of any complaint.  On 11 October, the applicant arrived in Tasmania on a flight from Melbourne.  At the time of entry, he was not an authorised person allowed to enter Tasmania under directions issued by the Emergency Management Act on 24 September 2021. This unauthorised entry into Tasmania was the subject of complaint 91195/2021.

After the applicant's entry, police were alerted, and spoke with the applicant about his movements.  At this point, the applicant informed police about his true movements, that is, that he had been in Albury and had travelled from Wodonga to Melbourne.  He made admissions to falsely advising the biosecurity officer that he had been in Queensland.  He was advised that he would be completing quarantine at the Travelodge in Hobart, that he was not to leave the hotel unless authorised and he was warned that if he left the hotel he faced "fines and possibly imprisonment".

The applicant arrived at the Travelodge at 9.20pm. Sometime after 9.30pm he left the hotel without being authorised. This was the subject of count 2 on complaint 8280/2021.  The applicant attended Woolworths at Bridgewater in the company of Ms Welsford in the afternoon of 12 October, which was the subject of count 2 on complaint 8281/2021.  On 12 October, at a time subsequent to the trip to Woolworths, the applicant was located by police at the home of Ms Welsford.  Ms Welsford was present when he was arrested, and him being in company with her on 12 October is the subject of count 3 on complaint 8281/2021.

The applicant filed an application to review two cumulative sentences of imprisonment imposed by a magistrate, S Mollard, on 21 December 2021.  Complaints 8281/2021, 8282/2021, 9075/2021, and 9548/2021 all alleged breaches of a Nationally Recognised Domestic Violence Order, with 17 total breaches alleged across those complaints.  On his pleas of guilty to those complaints the applicant was sentenced to five months' imprisonment, with two months of that sentence being suspended.  Complaint 8280/2021 alleged one count of knowingly providing false information and failing to comply with lawful requirement of an emergency management worker, and complaint 91195/2021 alleged one count of failure to comply with lawful requirement of an emergency management worker. 

The applicant was sentenced to a cumulative term of imprisonment of five months with two months of that sentence being suspended. 

The public health complaints were for failure to comply with a lawful requirement or direction of an emergency management worker by entering Tasmania on 11 October 2021 when prohibited from doing so by the directions of the Deputy State Controller (Complaint 91195/2021); for providing false or misleading information by stating to a biosecurity officer on arrival to Hobart Airport on 11 October 2021 that he had come from Queensland (Complaint 8280/2021 charge 1); failure to comply with a direction to remain in hotel quarantine for 14 days (Complaint 8280/2021 charge 2); and for falsely stating that he had remained at a premises at Bridgewater from 11 October to 12 October 2021 (Complaint 9549/2021 charge 1 as amended).

The applicant contends that the sentences were manifestly excessive in all of the circumstances.

Issue:

Whether or not the sentences are manifestly excessive.

Applicable law:

Emergency Management Act 2006 (Tas), s 60 - prohibits failure to comply with a lawful requirement or direction of an emergency management worker. 

Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 - provides that magistrates have a very wide sentencing discretion, and an appellate court must not interfere unless a material error is shown.  

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 - provides that it must be shown that the sentence imposed is "unreasonable or plainly unjust". 

Braslin and Cowen v Tasmania [2010] TASCCA 1 - provides that the Court has no charter to "tinker" with sentences imposed.

House v The King (1936) 55 CLR 499  - provides that that where, as here, no specific error is alleged the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust". 

Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 - provides that it must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion. 

Analysis:

Counsel for the applicant submits that a cumulative sentence of 10 months' imprisonment with 4 months suspended is not reflective of the totality of the criminal conduct, and that the sentence is manifestly excessive in all of the circumstances.  The respondent points out that the applicant pleaded guilty to 17 breaches of a family violence order across four complaints.  Counsel for the respondent points out that the maximum penalty for each of those breaches, being a fourth or subsequent offence, is five years' imprisonment.  Counsel for the respondent points out that the maximum penalties for each of the three breaches of s 60 of the Emergency Management Act were 100 penalty units or six months imprisonment. 

Although the breaches were with the consent of Ms Welsford, specific deterrence was a significant sentencing consideration given that the breaches were premediated, occurred shortly after the applicant's release from custody in New South Wales on 26 September 2021 and were numerous.  Family violence orders operate to protect complainants who are complicit as they often are not well placed to recognise their own best interests and their own security.  The breaches were numerous and were in blatant disregard of the court ordered ADVO.  Whilst the consent of the complainant is not a factor that always militates in favour of a non-custodial penalty, that fact coupled with the conduct itself not being of an abusive or threatening nature ought to have led to a finding that the conduct was at the lower end of the scale. However, the bar is set very high on a motion to review a magistrate's sentence as manifestly excessive.

Conclusion:

The motion to review is refused.  The Court concluded that the sentence imposed by the learned magistrate was well within the wide discretion afforded to him by the law.  The sentence was justified on grounds of general deterrence and denunciation.