Gim Eng Moh v Shaun Pine - [2010] ACTSC 27

HUMAN RIGHTS ACT

GIM ENG MOH v SHAUN PINE
[2010] ACTSC 27 (6 APRIL 2010)

CRIMINAL LAW – Appeal from Magistrates Court of the ACT – s 208(1)(e)(i), Magistrates Court Act 1930 (ACT) – principles on which appeal decided.
CRIMINAL LAW – Brief sentencing remarks – Court duty to ensure offenders understands why penalty has been imposed – lack of explanation on what factors were taken into account to sentence offender.
CRIMINAL LAW – sentencing principles – irrelevant considerations – plea of guilty – manifestly excessive – failure to take into account relevant considerations.
CRIMINAL LAW – Self representation – Limited English language skills of offender – use of interpreters.

Human Rights Act 2004 (ACT) preamble 1, 2 s 19(1), 18(2)
Crimes (Sentencing) Act 2005 (ACT) Pt 3.2, ss 33, 33(1)(j), 33(1)(m), 33(1)(o), 33(1)(r)
Criminal Code 2002 (ACT) ss 326, 348, 312
Magistrates Court Act 1930 (ACT) Pt 3.10, 208(1)(e)(i)

The Australian Macquarie Dictionary

Campbell v Fortey (1987) 85 FLR 462
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Hawkins & Hawkins [2009] ACTSC 148
Pettit v Dunkley (1971) 1 NSWLR 376
Cameron v The Queen (2002) 209 CLR 339
Cotter v Corvisy (2008) 1 ACTLR 299
R v Tsui (1985) 1 NSWLR 308
Islam v The Queen (2006) ACTCA 21

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 85 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 6 April 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 85 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:GIM ENG MOH
Applicant

AND:SHAUN PINE
Respondent

ORDER

Judge:  Refshauge J
Date:  26 March 2010
Place:  Canberra

THE COURT ORDERS THAT:

The sentence imposed on 16 December 2009 for dishonestly attempting to deprive, SLR Camera, is set aside

The other sentences imposed on 16 December 2009 remain

Mr Moh is re-sentenced to 3 months imprisonment, sentence to commence on 20 November 2009.

Accordingly, Mr Moh has served those sentences and he is free to be released.

Despite some controversy and dispute, the ACT is fortunate to have enacted the Human Rights Act 2004 (ACT) (the Human Rights Act), introduced and strongly supported by the then Attorney-General and Chief Minister.
The preamble to the Act states
(1)Human rights are necessary for individuals to live lives of dignity and value;
(2)Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community.
The Act then lists in Part 3 certain rights including s19(1) which provides
(19)(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
In my view, this means that when a judicial officer is sentencing an offender, he or she, particularly if a sentence of imprisonment is to be imposed, must act with courtesy, respect the inherent dignity of the offender who, despite being an offender, and even where the offender has committed a serious offence of which the community rightly seeks…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gim Eng Moh v Shaun Pine

Details

AGLC: Gim Eng Moh v Shaun Pine [2010] ACTSC 27
Case: [2010] ACTSC 27
Decision Date: 6 APRIL 2010

CaseChat Overview and Summary

In the case of Gim Eng Moh v Shaun Pine, the appellant, Gim Eng Moh, challenged the sentence imposed on him by the Magistrates Court of the ACT for dishonestly attempting to deprive SLR Camera of property. The appeal was heard on the grounds that the sentence was manifestly excessive and that the court had failed to adequately explain the factors considered in sentencing. Moh, who had limited English language skills and self-represented during the proceedings, argued that the court's sentencing remarks were insufficient, particularly in the context of his plea of guilty and the need for the court to ensure he understood the reasons for his punishment.

The legal issues before the court included whether the sentence was manifestly excessive, whether the court had failed to take into account relevant considerations in sentencing, and whether the sentencing remarks provided adequate explanation of the factors considered. The court was required to determine whether the appeal was validly taken under section 208(1)(e)(i) of the Magistrates Court Act 1930 (ACT), and if the sentence imposed was manifestly excessive, whether it should be set aside and the matter remitted for re-sentencing.

In delivering the judgment, the court found that the sentence was indeed manifestly excessive, primarily because the court did not adequately explain the factors taken into account in sentencing. The court held that when an offender pleads guilty, the sentence should reflect this by being less severe, and in this case, it was not. Furthermore, the court found that the sentencing remarks were insufficient and failed to provide Moh with an understanding of why the penalty had been imposed. Consequently, the sentence for the offence of dishonestly attempting to deprive SLR Camera was set aside, and the matter was remitted for re-sentencing. The court re-sentenced Moh to three months imprisonment, with the sentence to commence on the date of his original arrest. Given that Moh had already served the sentences, he was free to be released.

Orders

Orders of the court

1. The sentence imposed on 16 December 2009 for dishonestly attempting to deprive, SLR Camera, is set aside

2. The other sentences imposed on 16 December 2009 remain

3. Mr Moh is re-sentenced to 3 months imprisonment, sentence to commence on 20 November 2009.

4. Accordingly, Mr Moh has served those sentences and he is free to be released.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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