Mahanay v Phelan

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.