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Mahanay v Phelan

Mahanay v Phelan

Case [2023] ACTSC 162 29 June 2023

Appeal

Jurisdiction

Sentencing

Unconscionable Conduct

Discretionary Sentencing Factors

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mahanay v Phelan
Citation:	[2023] ACTSC 162
Hearing Date:	28 June 2023
DecisionDate:	29 June 2023
Before:	McCallum CJ
Decision:	(1) The appeal is allowed. (2) Vacate the sentences imposed by the sentencing magistrate on 17 May 2023 and impose new sentences.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – whether the sentencing magistrate considered alternatives to full-time imprisonment – whether discounts for plea and assistance were applied – where errors conceded – consideration of admissibility of evidence in an appeal governed by s 214 of the Magistrate’s Act CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – re-sentencing – making off without payment – driving a motor vehicle without consent – failure to stop – unauthorised possession of prohibited firearm – disposing of a prohibited firearm – where the offender has no prior convictions – application of Bugmy principles
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 10, 35(4) Criminal Code 2002 (ACT) ss 318(2), 323(1) Firearms Act 1996 (ACT) ss 42(1)(a)(iii), 177(1)(a) Magistrates Court Act 1930 (ACT) s 214 Road Transport (Driver Licensing) Act 1999 (ACT) s 32(2)(a) Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C
Cases Cited:	Betts v The Queen [2016] HCA 25; 258 CLR 420 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 Dang v Li [2021] ACTSC 179; 16 ACTLR 143 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Kibblewhite v Buik [2020] ACTSC 132 Kristiansen v Yeats [2022] ACTSC 351 Millard v Pomeroy [2022] ACTSC 319 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137
Parties:	Elena Mahanay ( Appellant) Christian James Phelan ( First Respondent) Jessica Slater ( Second Respondent) Minh Tien Vu ( Third Respondent)
Representation:	Counsel P Bevan ( Appellant) E Roff ( Respondents)
Solicitors Bevan & Co ( Appellant) ACT Director of Public Prosecutions ( Respondents)
File Number:	SCA 30 of 2023
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 17 May 2023 Case Title: Mahanay v Phelan Court File Number: AM 1694 of 2022

McCALLUM CJ:

Elena Mahanay appeals from the sentences imposed on her in the Magistrates Court on 17 May 2023. Ms Mahanay was sentenced that day to terms of imprisonment totalling 7 months and 13 days. The individual offences and sentences imposed were as follows.

The offences

There were three series of offences. The first consisted of three offences of making off without payment contrary to s 323(1) of the Criminal Code 2002 (ACT). Those offences were committed on separate dates between 24 January 2022 and 20 May 2022. The maximum penalty for those offences is imprisonment for a period of 6 months or a fine of $8,000.

Each of those offences involved Ms Mahanay attending a petrol station, refuelling her car and driving off without paying for…

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 Mahanay v Phelan

Details

AGLC: Mahanay v Phelan [2023] ACTSC 162
Case: [2023] ACTSC 162
Decision Date

CaseChat Overview and Summary

Elena Mahanay appealed against the sentences imposed on her in the ACT Magistrates Court on 17 May 2023. Mahanay was sentenced to a total of 7 months and 13 days of imprisonment for various offences, including making off without payment, driving without consent, failing to stop for police, and possessing and disposing of a prohibited firearm. The appeal was based on the grounds that the sentences were manifestly excessive, that the magistrate failed to consider alternatives to full-time imprisonment and apply the criteria for sentencing, and that discounts for plea and assistance were not properly applied. The prosecution conceded specific errors, allowing the court to intervene and re-sentence Mahanay.

The court considered the subjective circumstances of Mahanay's background, which included a history of abuse, trauma, and limited support. The court found that the magistrate did not adequately consider these factors when imposing the sentences. The court also discussed the admissibility of evidence in the appeal, finding that while evidence can be admitted to establish error, it cannot be used to establish a ground of manifest excess without first determining whether error exists.

The court found specific errors in the sentencing process for each series of offences. For the first series of offences (making off without payment), the court found that the magistrate failed to properly consider alternatives to imprisonment and that the sentences imposed were manifestly excessive. For the second series of offences (driving without consent and failing to stop for police), the court found that while the sentences were appropriate, the magistrate failed to consider alternatives to full-time imprisonment. For the third series of offences (firearms offences), the court found errors in the application of discounts for plea and assistance.

The court re-sentenced Mahanay, imposing good behaviour orders for the first series of offences and suspending the sentences for the second and third series of offences, to be served from 3 July 2023. The court imposed additional conditions on the good behaviour orders, including requiring Mahanay to reside at the accommodation provided by Toora Women Inc. and to accept supervision and direction from the Director General of ACT Corrective Services.

Orders