Mahanay v Phelan
[2023] ACTSC 162
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 the fuel. The magistrate found that those offences were at the lower end of the scale. The amounts or values of petrol involved were $43, $55 and $65 respectively.
At the time Ms Mahanay committed those offences she was 23 years old and had no prior convictions. She had been dealt with in New South Wales for an offence of stalking or intimidating for which she was released without conviction on a conditional release order for a period of nine months. The fact that she was released without conviction indicates a level of culpability at the lowest end of the scale for that offence. She was, however, still subject to the conditional release order at the time of the first two offences and it may be accepted that that was a relevant aggravating factor in determining the appropriate sentence.
The magistrate sentenced Ms Mahanay as follows: for the first offence, to a term of imprisonment for one month backdated commence on 2 February 2023 and expire on 1 March 2023; for the second offence, to a term of imprisonment for one month from 10 February 2023 to 9 March 2023; and, for the third offence, to a term of imprisonment for two months from 20 February 2023 to 19 April 2023.
The second series of offences consisted of driving offences all committed on 15 August 2022. The facts of those offences were as follows.
Ms Mahanay was seen by police driving a Kia Cerato that had been reported stolen. Police activated their lights and sirens and indicated for her to pull over. Instead, she accelerated away, reaching speeds of up to 120 kilometres per hour in an 80 zone. She pulled over only after a tyre deflation device used by police had deflated the front left tyre.
At the time of those offences, Ms Mahanay’s licence had been suspended due to loss of demerit points. She was arrested and charged with driving a motor vehicle without consent contrary to s 318(2) of the Criminal Code, which carries a maximum penalty of 5 years or a fine of $80,000; failing to stop a motor vehicle for police contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), which carries a maximum penalty of imprisonment for 12 months or a fine of $16,000; and driving while suspended, which carries a maximum penalty of 6 months imprisonment or a fine of $8,000 under s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
The day after her arrest, Ms Mahanay pleaded guilty to two of those charges but not guilty to the charge of driving without consent. She was granted bail that day.
After a hearing on 9 March 2023, the magistrate found Ms Mahanay guilty of the offence of driving without consent. His Honour’s judgment is not before me, but I was informed that he found the offence proved on the grounds of recklessness rather than knowledge that the vehicle was stolen.
For those offences, the magistrate sentenced Ms Mahanay to the following: for the offence of driving a motor vehicle without consent, imprisonment for six months from 10 March 2023 to 9 September 2023 and, for the offence of failing to stop for police, a term of imprisonment for four months wholly concurrent with the first sentence.
The third series of offences consists of firearms offences. The circumstances of those offences are as follows.
On 27 November 2022, Ms Mahanay was arrested for breach of the conditions of the bail granted when she first appeared on the driving offences. She offered to provide information about a firearm in exchange for leniency in relation to that breach of bail.
The information Ms Mahanay provided to police included the fact that there was a 12-gauge pump action shotgun stored in a storage cage in an underground car park in an apartment complex where a man she knew lived. The value of the information was high in that it resulted in the recovery of the shotgun. However, the information given to police by Ms Mahanay was incomplete and inaccurate, in particular as to how the shotgun came to be stored in that storage cage.
Ms Mahanay told police that it had been delivered to the occupant of the apartment the previous day by a person in an Uber. CCTV footage obtained by police in fact showed that Ms Mahanay and the occupant had brought the shotgun into the building together.
Upon being confronted with that evidence, Ms Mahanay admitted during an interview with police on 5 February 2023 that she had been given the shotgun by an unknown woman and had stored it in another storage cage for a period of time before delivering it to the man she knew on 26 November 2022, the day before she was arrested for the breach of bail.
As a result of the information Ms Mahanay had provided to police and their additional inquiries, she was charged with the two firearms offences. Those offences were, first, an offence of possessing a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT), which carries a maximum penalty of imprisonment for 10 years, and secondly an offence of disposing of an unregistered prohibited firearm contrary to s 177(1)(a) of the Firearms Act, which also carries a maximum of imprisonment for 10 years.
There was no evidence as to whether the firearm was capable of discharging or was loaded at the time it was in Ms Mahanay’s possession. Accordingly, she stood to be sentenced on the basis that it was not loaded. For those offences, the magistrate sentenced Ms Mahanay to concurrent terms of imprisonment for two months from 15 July 2023 to 14 September 2023.
As noted in the prosecutor’s written submissions, it follows that the additional period of imprisonment for those offences was five days beyond the conclusion of the sentence imposed for the offence of driving a motor vehicle without consent.
Grounds of appeal
The grounds of appeal specified in the further amended notice of appeal are:
a) The sentences were manifestly excessive.
b) The Learned Magistrate erred in:
(i) Failing to consider and\or improperly consider or apply the criteria contained in s 33 of the Crimes (Sentencing) Act 2005;
(ii) Not considering alternatives to full time imprisonment.
c) His Honour erred in reducing the plea of guilty discounts based on the strength of the prosecution case.
d) His Honour erred in failing to comply with s 37(2)(a) of the Crimes (Sentencing) Act 2005 when affording discounts for assistance to authorities in relation to [the firearm offences].
The prosecution conceded that the errors alleged in grounds (c) and (d) were made out and, consequently, that the Court’s power to intervene and resentence the appellant was enlivened in accordance with the principles stated by the High Court in Kentwell v The Queen [2014] HCA 37; 252 CLR 601.
In order to understand the significance of that concession, is necessary to explain which grounds of appeal apply to which sentences.
Ground (c) concerning the discount for the pleas of guilty relates to all of the sentences apart from the sentence imposed for the offence of driving a motor vehicle without consent to which, as I have already noted, Ms Mahanay pleaded not guilty. As to that offence, Mr Bevan, who appeared for Ms Mahanay, relied principally in the appeal on the failure to consider alternatives to full-time imprisonment alleged in ground (b) and, perhaps to a lesser extent, also on the ground of manifest excess.
Ground (d) concerning the discount for assistance to authorities relates only to the firearms offences.
In a case where specific error in the exercise of the sentencing discretion is established, it is not ordinarily necessary also to consider a ground of manifest excess. However, there are complexities in the present case as a result of which it is convenient to address the appeal sentence by sentence, rather than by reference to the grounds of appeal seriatim, as I ordinarily would. Before turning to address the individual sentences, however, it is appropriate to summarise the evidence concerning the appellant's subjective case.
Circumstances of the offender
There was before the magistrate a pre-sentence report which addressed the offender’s background in careful detail. It is helpful to quote parts of that report to explain how compelling the subjective case was:
Ms Mahanay was born in Liverpool, New South Wales (NSW). Her parents separated when she was five years old. Her father was incarcerated for most of her formative years. She reported that her mother worked excessive hours and was preoccupied with her own love interests. She noted that as a result her and her sister were often left home alone. Ms Mahanay resumed contact with her father in 2012 [which, by my calculation, was when she was aged 14 years] then relocated to Canberra to reside with her father in 2015 [when, by my calculation, she was aged 17 years]. She described a reasonable relationship with her father and stepmother until they became heavily addicted to heroin in 2020 [at that time, by my calculation, the appellant was aged 20 years herself]. She claimed [her father and stepmother] became paranoid and obsessed she was divulging family secrets. They abused her verbally, emotionally and financially. Her stepmother was also physically abusive. Ms Mahanay claimed that her father often supplied her with drugs in exchange for completing tasks for them.
Ms Mahanay described a supportive but complicated relationship with her mother who resides in Sydney, NSW. They have frequent contact, but her mother detests her daughter’s drug use and criminal lifestyle. Ms Mahanay has a sister who resides in the ACT.
I interpolate to note that the evidence before me established that Ms Mahanay’s mother has also now relocated to Canberra. Returning to the pre-sentence report:
Between 2020 and 2021, Ms Mahanay advised she was in a relationship for approximately 18 months. She described this as “horrific” noting that it negatively impacted her life. She claimed she was subjected to ongoing domestic violence including physical, emotional, and financial abuse. She was relocated to Boorowa, NSW for a period and prohibited from leaving. She eventually fled this domestic violence situation and returned to Canberra. Shortly thereafter, Ms Mahanay entered into a relationship with an offender who was the subject of a warrant. This relationship lasted for approximately four months and was focused primarily on using drugs and committing crimes.
The pre-sentence report also recorded that Ms Mahanay had limited education, having left school in Year 10. When she was living in Canberra at the time of her arrest for the present offences, her only income was Centrelink. She had a Centrelink debt and was spending her entire income at that time on drugs and hotels. The pre-sentence report records a history of abuse of prohibited drugs. It is not necessary to record the detail of that, save to say that it supports the proposition that she would at the time of her arrest have been spending her entire Centrelink income on drugs and basic living needs.
Ms Mahanay has previously been diagnosed with Post Traumatic Stress Disorder, depression and anxiety. That was in 2015, before her abusive relationship, and I infer that she developed that disorder as a result of the traumas of her upbringing. She has also been diagnosed with anorexia. She has engaged in self-harm behaviours consistently from 2014 to the present day. There was an attempted suicide during the period of her abusive relationship in 2021. The evidence before me indicates that the appellant has had little assistance in terms of mental health treatment for the many traumas to which she has been subjected in her relatively short life.
It cannot be doubted that the principles stated in the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are enlivened in this case. The magistrate did refer to those principles but it is not clear, particularly from the sentences that he imposed, how he took those principles into account.
At the time Ms Mahanay was sentenced, the pre-sentence report indicated that she had available to her that day accommodation provided by the Justice Housing Program. As she was sentenced to terms of imprisonment that day, she was unable to take up that accommodation. Fortunately, the offer is still available now and I will return to the evidence on that issue.
It is necessary in that context, however, to say something about the fact that evidence was admitted at the hearing of the appeal.
Admissibility of evidence
The notice of appeal did not foreshadow reliance by the appellant on any evidence in support of any of the grounds of appeal. However, at the hearing of the appeal, Mr Bevan led evidence directed exclusively to the issue of resentence.
Uninformed by authority, I would have taken that to be an entirely orthodox approach in an appeal against sentence. Ordinarily and subject to established exceptions, error is established (or not) by reference to the material that was before the sentencing court. Where evidence is admitted on the issue of error in an appeal against sentence, it is admitted because it establishes error or that the sentencing process otherwise miscarried; it is not admitted to obviate the need to establish one or other of those propositions. Upon the establishment of error or miscarriage of the proceedings before the sentencing court, updating evidence is then admissible (and is often tendered) for the limited purpose of assisting the court in the fresh exercise of the sentencing discretion.
However, Ms Roff, who appeared for the prosecution, drew my attention to decisions of this Court that might be understood to support a different approach (indeed, a different view of the kind of appeal created by s 208(1)(d) of the Magistrate’s Court Act 1930 (ACT)). The resolution of any conflict within those authorities is not necessary for today’s purposes for the reason I have already indicated, namely, that error was conceded on behalf of the prosecution. I emphasise that what follows is by way of obiter dicta only. I nonetheless consider it appropriate to address the issue, lest the apparent conflict in the authorities and their present uncertain state should set a hare running.
So far as the material I have considered overnight establishes, the issue is first analysed or identified in the decision of Mossop J in Kibblewhite v Buik [2020] ACTSC 132. His Honour there noted competing approaches to the consequences of admitting evidence pursuant to s 214 of the Magistrates Court Act1930 (ACT) at an appeal.
The issue is identified at [5]-[7] of his Honour's judgment as follows:
5.While the parties identified the competing approaches, the written submissions did not address this issue and their oral submissions were limited. As identified in [IT v Knight [2020] ACTSC 101], the approach contended for by the appellant has been adopted by single judges of this court in a number of cases: Edwards v Marinus [2010] ACTSC 57; Saga v Reid [2010] ACTSC 59; Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms); Islam v Wasley [2014] ACTSC 127; Subasic v Williams [2018] ACTSC 207; 85 MVR 209 and Fallon v Baker [2018] ACTSC 319 (Fallon). I confess that Fallon is a decision of mine and I followed the approach derived from the decision in Eliasen v The Queen (1991) 53 A Crim R 391 at 396.
6. On the other hand, in SE v Ruhen [2019] ACTSC 190 (Ruhen) at [30] the Chief Justice said:
The admission of further evidence does not change the nature of the appeal to a hearing de novo, and it is only if error is demonstrated that the appeal court can substitute its own decision based on the evidence before it.
Her Honour’s reasons do not make reference to the authorities referred to above other than Grooms and, in relation to that decision, the reasons do not make reference to that part of the decision which is contrary to the approach adopted in Ruhen.
7. If the issue was determinative, it would be necessary to attempt to reconcile these cases. However, because, for the reasons in the balance of this judgment, I have found a specific error in the approach taken by the magistrate, it is not necessary to consider whether in the absence of such error, the appellant should be resentenced. I observe, however, that when the issue is properly argued, because the appeal is by way of rehearing, careful attention may need to be paid to the formulation of the circumstances in which admission of further evidence avoids the need for further inquiry as to error. Attention should also be had to the consequences of the terms of s 214, insofar as they permit admission of further evidence in a broad range of circumstances.
Those remarks were considered by McWilliam AsJ in Dang v Li [2021] ACTSC 179; 16 ACTLR 143 at [94]. Her Honour noted however that, in the circumstances of the matter before her, error had been established and that the Court accordingly could receive evidence concerning the period since the original sentence hearing in accordance with the principles stated in Kentwell and in Betts v The Queen [2016] HCA 25; 258 CLR 420 at [11].
Mossop J returned to the issue in SBT v Wright [2021] ACTSC 322; 17 ACTLR 137. It appears that the issue arose more starkly in that case and required closer consideration. His Honour referred again to the divergence of authority at [43] and following:
43.As I pointed out in Kibblewhite v Buik [2020] ACTSC 132 at [4]-[7], there has been a divergence of approach on the part of single judges of this court in relation to the consequences of the admission of further evidence under s 214 of the Magistrates Court Act. On the one hand there are a number of cases which have followed an approach associated with the decision of the Victorian Court of Criminal Appeal in Eliasen v The Queen (1991) 53 A Crim R 391 (Eliasen) at 396. The approach in Eliasen involved treating the admission of further evidence as reopening the sentencing discretion so that it is no longer necessary to establish error prior to the court engaging in a resentencing exercise. The cases that have followed the Eliasen approach are Edwards v Marinus [2010] ACTSC 57 (Edwards); Saga v Reid [2010] ACTSC 59 (Saga); Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms); Islam v Wasley [2014] ACTSC 127; Subasic v Williams [2018] ACTSC 207; 85 MVR 209; Fallon v Baker [2018] ACTSC 319 (Fallon) and IT v Knight [2020] ACTSC 101.
44.On the other hand, in SE v Ruhen [2019] ACTSC 190 (SE), Murrell CJ maintained the position that having regard to the nature of the appeal, it was still necessary to establish error in a case where further evidence is admitted.
45.In my view, notwithstanding my acquiescence to the Eliasen approach in Fallon, as a general proposition, the position is as outlined in SE. That is because the admission of further evidence under s 214 of the Magistrates Court Act does not alter the nature of the appeal. The decision in Eliasen does not require any different approach.
After a careful analysis of relevant authority, Mossop J reiterated at [65] that the approach consistent with the terms of the statute (s 214 of the Magistrates Court Act) is that identified by Murrell CJ in SE v Ruhen. His Honour concluded at [67]:
In the present case, the position is made easier by the fact that the only relevant statutory provision is s 214(4) as there was no consent for the purposes of s 214(3)(b). Section 214(4) incorporates within it, a requirement that the evidence provide a basis for allowing the appeal. Having regard to the nature of an appeal, that necessarily contemplates the establishment of error, even if by way of additional evidence. It invites an examination of the material in order for the court to be satisfied that the criterion that “the evidence would not afford any ground for allowing the appeal” does not exist. In a case alleging manifest excess, that involves asking whether, in light of the additional evidence, manifest excess is established. For the reasons that I give below, I consider that “the evidence would not afford any ground for allowing the appeal” and therefore I do not admit it.
McWilliam AJ then returned to the issue in Millard v Pomeroy [2022] ACTSC 319. It is here that care must be taken to ensure that the principles discussed by Mossop J are not misapprehended. Her Honour said at [19]:
While of general assistance by way of guiding principle, the terms of the statute under consideration in Betts were different from s 214 of the Magistrates Court Act. Previously, there has been some uncertainty about the proper exercise of the Court’s discretion in relation to evidence admitted under s 214 and the consequences of admitting the evidence. However, the issue was comprehensively addressed by Mossop J in SBT v Wright [2021] ACTSC 322 at [43]-[67]. His Honour ultimately concluded that in a case alleging manifest excess, the words of s 214(4), and in particular the requirement to consider whether the evidence “would not afford any ground for allowing the appeal”, involved asking whether, in light of the additional evidence, manifest excess was established. I have taken the same approach here. Effectively, the material is provisionally admitted for the purpose of determining whether it would afford a ground for allowing the appeal.
I respectfully agree with Mossop J’s conclusion in SBT v Wright at [45] and [65] that the correct approach is that outlined by Murrell CJ in SE v Ruhen. The admission of further evidence does not change the nature of the appeal. That is a subversion of the issue; the nature of the appeal governs the admission of further evidence. Having regard to the nature of an appeal governed by s 214 of the Magistrates Court Act, it is necessary to establish error before the discretion to resentence is enlivened.
However, to the extent that Mossop J held in SBT v Wright at [67] that evidence can be admitted under s 214(4) in order to establish a ground of manifest excess (and McWilliam AJ adopted that principle in Millard v Pomeroy at [19]), I respectfully disagree. I accept that I have not had time in determining the present appeal to consider the relevant authorities in the detail their Honours did. It nonetheless seems to me that, in considering the permissibility of admitting evidence under s 214 for the purpose of establishing error, what may have been overlooked is the distinction between the kind of error where evidence can assist in determining whether the error occurred and the kind of error the determination of which is properly confined to the material that was before the sentencing judge.
For my part, I would consider that evidence is not admissible under s 214 except in support of the kind of ground that rests on extraneous facts; for example, where through no fault on the part of an offender the sentencing judge mistook the facts such as to give rise to a miscarriage of justice (in which case evidence might be led to show that the true facts were in evidence before the sentencing judge but were misapprehended); where a ground of appeal of incompetence of counsel is relied upon and it is necessary to adduce evidence to establish whether a decision of counsel was a deliberate forensic choice or something else; or where it is alleged that there has been a denial of procedural fairness and it is necessary to adduce evidence to establish what would have happened had procedural fairness been afforded.
Those kinds of grounds readily lend themselves to the admission of additional evidence on appeal. A ground of manifest excess, in my respectful opinion, does not. A complaint of that kind falls to be determined by reference to the material that was before the sentencing judge.
[NOTE: After I published these reasons orally, my attention was drawn to the decision of Baker J in Kristiansen v Yeats [2022] ACTSC 351 where her Honour considered this issue at [39]-[46]. I do not apprehend any inconsistency between her Honour’s reasoning and mine. The decision in that case was concerned with an alleged miscarriage of justice resulting from an incorrect assumption made by the offender’s legal representative as a result of which he did not appreciate the significance of an expert report and so did not tender it at the proceedings on sentence: at [33]].
In any event, as I have already explained, the issue does not arise here because the prosecution has conceded specific error and further conceded that the discretion and indeed obligation to exercise the sentencing discretion afresh arises in accordance with the principles stated in Kentwell.
I turn then to consider the offences and the manner in which error is established in respect of each series.
Error in sentencing
As to the first series, being the three offences of making off without payment, the conceded error in relation to the application of the plea enlivens the discretion to resentence.
The prosecution’s submissions were helpful in explaining the vice of the Magistrate’s approach in relation to the plea. In particular, it was acknowledged that his Honour took it upon himself in his sentencing remarks to reduce the discount (unstated) that he would otherwise have applied to 20 per cent “having regard to a relatively strong prosecution case”.
Ms Roff noted in accordance with the decision of the ACT Court of Appeal in Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 that the strength of the prosecution case is only a relevant consideration in fixing a discount for a plea of guilty in circumstances where a submission has been made that s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) applies. No such submission was made in the present case.
Returning to the first series offences, while the error is conceded, when the discount is unwound and a proper discount applied, it might be thought that the error is de minimis and of the kind that would not ordinarily warrant the intervention of an appellate court. However, there is a larger difficulty with the first series offences which fits within the ground that the magistrate failed to consider alternatives to full-time imprisonment.
In my assessment, the conclusion that the threshold in s 10 of the Crimes (Sentencing) Act was met for those offences (that no penalty other than imprisonment was appropriate) was not open to his Honour. That is particularly so having regard to the very low level of seriousness of those offences considered in the context of the appellant’s living circumstances at the time. She was on Centrelink benefits, addicted to prohibited drugs and dealing with the traumas of her childhood compounded by the trauma of having escaped from what she described as a horrific relationship of domestic violence.
To sentence a person of her age in those circumstances to a term of full-time imprisonment for three offences of making off without paying for relatively small values of petrol in my assessment was manifestly excessive and, as I have indicated, I do not think the s 10 threshold was met for those offences.
For those offences, I propose to resentence the appellant to a good behaviour order.
Turning to the second series, my assessment of those offences is complicated by the fact that the magistrate heard evidence concerning the nature of the driving without consent and I have not heard that evidence. His Honour recorded (albeit opaquely) a relatively stern assessment of that conduct, stating:
I am satisfied it falls towards the medium point on the scale of objective seriousness, having regard to the manner by which those factual matters were proved at hearing and what I found by way of your conduct.
It is difficult for me to reach any different view and therefore appropriate to proceed on the basis that the nature of the offence was towards the medium point on the scale of objective seriousness, whatever that might be taken to mean. In short, I am not satisfied that it is appropriate to interfere with the term of the sentence imposed by the magistrate for that offence. However, I do think it is appropriate to consider whether the sentence is required to be served by full-time imprisonment, in accordance with the single ground relied upon by Mr Bevan in relation to that offence.
Turning to the third series of offences, the firearms offences, both errors conceded by the prosecution apply. That is, that the magistrate erred in the discount he allowed for the plea of guilty for the reason already explained and also, as reflected in ground (d), in the way in which he addressed the question of assistance. The police would not have known about those offences were not for Ms Mahanay volunteering information about the firearm. Further, as already noted, the assistance was of a high level, a firearm having been recovered from the community.
Again, the submissions provided in writing by Ms Roff on behalf of the prosecution provided a helpful analysis of the relevant principles. In short, the magistrate’s reasons failed to engage with the proper approach to affording a discount for assistance. His Honour confined his remarks to the following: “I note the factual circumstances which give rise to you being both in possession and having a prohibited firearm”.
After the magistrate had given his sentencing decision, Mr Bevan politely inquired whether his Honour’s reasons specified any discount given for the assistance. His Honour replied that he had indicated the discount afforded for assistance when in fact he had not.
The prosecutor’s submissions in this Court noted that it seems likely his Honour in fact applied a combined discount of 40 per cent for both assistance and for the plea, as that is what was sought on the appellant’s behalf. However, if the discount is unwound on that basis, it gives a curious starting point of 100 days. In all the circumstances, it is not clear to me whether the learned magistrate did take the assistance provided by the appellant into account.
The difficulty with this series however is that, for my part on resentence, I would regard the firearms offences as being significantly more serious than his Honour evidently did. I accept that the appellant would be entitled to a combined discount in the order of 40 per cent for those offences, possibly even higher (acknowledging that exceptional circumstances must be established for anything higher than about 40 per cent as a combined discount). However, I would have taken a higher starting point for the sentences imposed for those offences.
Ordinarily therefore I would have declined to interfere with the sentences imposed for the third series of offences. However, I would accede to Mr Bevan’s submission, which applies across the board, that the magistrate failed to consider alternatives to serving the sentences he had imposed by way of full-time imprisonment.
Re-sentence
In all the circumstances, I am of the view that the sentences should be suspended immediately to reflect the strong subjective case I have described.
The appellant’s moral culpability is considerably reduced by reason of the many difficulties she has faced in her relatively short life. She has had little if any structured support in her upbringing to assist her to develop the capacity to make good choices. Indeed, it appears her father at least has enabled and encouraged her unlawful behaviour. The evidence on resentence establishes that she now has available to her supportive accommodation with wrap-around services. That offers a strong prospect of her continuing the rehabilitation that has, in effect, been enforced upon her by the period of imprisonment she has served thus far.
The evidence includes a letter (exhibit A) from Toora Women Inc., a domestic violence and homelessness service which provides outreach support and short-term emergency accommodation to women who are homeless for reasons such as domestic and family violence, mental health, alcohol and other drug use and to those reintegrating into the community following incarceration. Ms Mahanay ticks a number of those boxes and has been offered a bed which will continue to be available to her, as the evidence indicated yesterday, at least until early next week.
The witness who gave evidence yesterday, Ms Jeffries, indicated that it is preferable for a person being taken into the services of Toora to be admitted to accommodation early in the week. In particular it is desirable, Ms Jeffries said, to avoid the weekend as an admission time. For that reason and as today is Thursday, I propose to suspend the sentences from next Monday, 3 July.
For those reasons I make the following orders:
(1)I allow the appeal.
(2)I vacate the sentences imposed by the sentencing magistrate on 17 May 2023 and instead impose the following sentences:
(3)For the offences for making off without payment, in each case I impose a good behaviour order for six months commencing on 3 July 2023 and expiring on 2 January 2024.
(4)For the offence of driving a motor vehicle without consent, I impose a sentence of 6 months imprisonment, commencing on 2 February 2023 and expiring on 1 August 2023.
(5)For the offence of failing to stop a motor vehicle for police, I impose a sentence of 3 months and 3 weeks imprisonment, commencing on 2 February 2023 and expiring on 22 May 2023.
(6)For the firearm offences, in each case I impose a sentence of 2 months imprisonment commencing on 2 July 2023 and expiring on 1 September 2023.
(7)I direct that the sentences of imprisonment be suspended from 3 July 2023 and impose a good behaviour order for each of the offences for which the term of the imprisonment was suspended, commencing on 3 July 2023 and expiring on 2 January 2024.
(8)The conditions of the good behaviour orders are the core conditions listed in s 86 of the Crimes (Sentencing Administration) Act 2005 (ACT), as well as the following additional conditions:
(a) The offender is to accept the supervision of and comply with any reasonable direction given by the Director General of ACT Corrective Services or their delegate, including to undertake counselling and rehabilitation and submit to random urinalysis at times arranged with persons in charge of the Toora Women Inc. accommodation;
(b) The offender is to reside at the accommodation provided by Toora Women Inc. or other accommodation authorised by the Director General of ACT Corrective Services or their delegate.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 8 August 2023 |
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