Mabior v Sims
[2012] ACTSC 106
•June 26, 2012
ISAIAH AJAK MABIOR v COLIN ALEXANDER SIMS
[2012] ACTSC 106 (26 June 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 15 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 26 June 2012
IN THE SUPREME COURT OF THE )
) No. SCA 15 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ISAIAH AJAK MABIOR
Appellant
AND:COLIN ALEXANDER SIMS
Respondent
ORDER
Judge: Higgins CJ
Date: 26 June 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The four month suspended sentence made on 19 January 2012 is deleted.
In lieu thereof, the appellant’s community service obligations are increased to 240 hours.
Taking into account what both Mr Crispin and Mr Allison have said, it does seem to me that although this was a second offence committed within about a month from the previous one, the two readings are comparable. They are both indicative of that which emerges from the report of Dr George, namely, that at the time when the offence occurred, Mr Mabior had a serious alcohol problem related probably to, and I need put it no more highly than that, his unfortunate experiences in Africa and amounting to, not surprisingly in my view, a Post Traumatic Stress Disorder.
According to the evidence before his Honour, it would seem that the appellant has addressed that problem, being undoubtedly made very aware of it by the two charges which he was then facing. He had commendably taken some steps to give up drinking, which was entirely appropriate.
The appellant does not complain of the first sentence, which was a $1000 fine, court costs, etc, payable at the rate of $100, a fortnight and a disqualification for a period of six months. The second sentence, the cumulative penalty, was not just the suspended sentence, but also 120 hours of community service and a disqualification for a period of twelve months. I take it from his Honour’s remarks that it was to be cumulative and therefore a total disqualification of eighteen months. I assume that would be from 19 January 2011, although I do not know whether any account was taken of the administrative suspension of the appellant’s licence. That is probably not a matter of great concern.
It does seem to me, in looking at the penalties to be imposed, that it was somewhat excessive to add four months of imprisonment, albeit suspended, for the very good reasons advanced in respect of the appellant’s personal circumstances. I do think that an appropriate penalty would be that the penalties stand, but for the deletion of that sentence, but increasing the amount of community service to 240 hours. There seems to me no other amendment that needs to be made to the penalties his Honour imposed. I think the good behaviour order stands as his Honour pronounced it, and for the period that his Honour pronounced.
The penalties are now reimposed. I will make the commencement date for all orders to be 1 September 2012. The disqualification has already been imposed in respect of the suspension order, so I will simply allow that to follow on from the previous suspension, as his Honour ordered, and from the first of those periods, being the date upon which his Honour dealt with the matter. That is not extended in any way, but it is obviously the second period. In any event, the period is continuous for 18 months from the time his Honour convicted the appellant. The other sentence though, the community service and good behaviour order, will commence as from 1 September 2012.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins
Associate:
Date: 12 July 2012
Counsel for the Appellant: Mr T Crispin
Solicitor for the Applicant: Legal Aid Office (ACT)
Counsel for the Respondent: Mr B Allison
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 26 June 2012
Date of judgment: 26 June 2012
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