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) 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 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…
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- AGLC
- Mahanay v Phelan [2023] ACTSC 162
- Case
- [2023] ACTSC 162
- Decision Date
CaseChat Overview and Summary
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.
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