Phillips vs. Wroe - (15 Feb 2022)

The discretion to impose a sentence cannot be appropriately exercised, if the magistrate is under a misapprehension as to what conduct constitutes the offence

Civil

Present is an appeal against sentence. On 4 January 2022, the Appellant appeared in the Magistrates Court and pleaded guilty to three offences of failing to comply with directions made under the Emergency Management Act 2005 (EM Act). She was sentenced to a total effective sentence of imprisonment of 6 months and 1 day, partially suspended after serving 2 months of the sentence. The Appellant sought leave to appeal against the sentence.

The discretion to impose a sentence cannot be appropriately exercised if the magistrate is under a misapprehension as to what conduct constitutes the offence. The maximum penalty for an offence of this nature is 12 months' imprisonment or a fine of $50,000. Imprisonment is always a penalty of last resort, that is it is a sentence that should not be imposed unless all other sentences have been considered and found to be inappropriate. Offences against the EM Act of failing to comply with directions must be seen in the light of the context in which they occur. Where directions are given, as here, in the context of a pandemic, public safety depends upon uniform compliance. Personal and general deterrence is a significant factor in sentencing for such offences.

In present case, there are three offences though they all arose out of the same course of conduct. The Appellant left the quarantine premises after only one day and could not have failed to understand that in doing so, she was not complying with the directions, she had been given. She did not attend for testing as required, though she later tested negative. Her breach of the self-quarantine direction was not a momentary aberration but continued for a period of approximately a week. Her actions resulted in the unnecessary expenditure of police resources in locating, apprehending and transporting her to Perth. Whilst she was distressed at being arrested, her conduct in relation to the police, including refusing to wear a mask, was disrespectful and foolish.

The Appellant is relatively young woman, being 27 years old at the time of the offences. She has no prior convictions. She is a Canadian national and has been living and working in Australia for four years on various working and bridging visas. As a result of her conviction of these offences, her current bridging visa was cancelled. After being arrested, she was held in custody until being granted bail pending appeal on 12 January 2022. She was then taken into immigration detention where she remained until bail was revoked on 28 January 2022. She was then returned to prison. Accordingly, the Appellant has been in custody, either in a prison or an immigration detention centre, for 6 weeks. That loss of liberty is a relevant factor to be taken into account in considering what penalty should now be imposed. Appellant is re-sentenced. Appeal allowed.

Tags : DIRECTION COMPLIANCE SENTENCE