Mansour v Watkins - [2014] ACTSC 361

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mansour v Watkins & Anor
Citation:	[2014] ACTSC 361
Hearing Date(s):	17 December 2014
DecisionDate:	17 December 2014
Before:	Murrell CJ
Decision:	Sentence for damage property confirmed. For drive while disqualified confirmed, resentenced to 4 months and 2 weeks’ imprisonment. Disqualification period of 2 years confirmed. For assault resentenced to 7 months and 2 weeks’ imprisonment. Unserved sentences suspended upon offender entering into a good behaviour order for 18 months.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Appeal from decision of a Magistrate – severity of sentence – discount for plea of guilty – procedure – error of law
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 35, 37, 61
Cases Cited:	Cotter v Corvisy [2008] ACTSC 64 House v The King (1936) 55 CLR 499
Parties:	Fali Mansour (Appellant) Nicole Jane Watkins and Nathan Daniel Macklin (Respondents)
Representation:	Counsel Mr T Sharman (Appellant) Mr T Hickey (Respondents)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondents)
File Number(s):	SCA 57 of 2014
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Doogan Date of Decision: 3 July 2014 Case Title: Edwards & Ors v Mansour Court File Number(s): CC 10918 of 2013; CC 4566 of 2014; CC 5461 of 2014

Murrell CJ:

Contents of the Appeal

The appellant appeals sentences imposed in the Magistrates Court on 3 July 2014. The offences, sentences imposed and maximum available penalties were as follows:

(1)6 November 2013, damage property.
Sentenced to two months' imprisonment from 5 June to 4 August 2014.
Maximum available penalty: two years' imprisonment.
(2)3 May 2014, drive while disqualified as a repeat offender.
Sentenced to five months' imprisonment from 5 August 2014 to 4 January 2015 and disqualified from driving for two years.
Maximum available penalty: one year imprisonment.
(3)20 May 2014, assault.
Sentenced to nine months' imprisonment from 5 January 2015 to 4 October 2015.
Maximum available penalty: two years' imprisonment.

The sentences were made entirely cumulative. The Magistrates Court ordered that the appellant serve ten months. The remaining six months (which attached to the sentence for the assault) was to be suspended from 4 April 2014 on the appellant entering into a two year good behaviour order.

The notice of appeal raised only one ground, being that the sentences were manifestly excessive in all the circumstances. Without objection, the appellant amended the notice of appeal to argue further grounds that raised specific error, and the grounds that were argued were as follows:

(a)The proceedings before the Magistrate miscarried due to uncertainty in relation to the appellant's criminal record.
(b)The sentence imposed for the offence of damage property was manifestly excessive.
(c)In imposing the sentence for drive while disqualified the Magistrate failed to take into account the appellant's plea of guilty.
(d)In imposing the sentence for assault the Magistrate failed to take into account the appellant's plea of guilty.
(e)The sentence imposed for assault was manifestly excessive.
(f)In totality the sentences were manifestly excessive.

Nature of…

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 Mansour v Watkins

Details

AGLC: Mansour v Watkins [2014] ACTSC 361
Case: [2014] ACTSC 361
Decision Date: 17 December 2014

CaseChat Overview and Summary

Mansour appealed against his convictions and sentences for various offences, including damaging property, driving while disqualified, and assault. The appeal was heard by the Magistrates' Court of Victoria. The respondent, Watkins, was the state represented in the appeal. The case involved a detailed examination of the severity of the sentences imposed, the appropriate discount for the appellant's plea of guilty, and whether there was an error of law in the sentencing procedure.

The central legal issues before the court were whether the original sentences were excessive or inappropriate given the offences committed and whether there was an error in the application of the discount for the appellant's plea of guilty. Additionally, the court needed to determine whether there were any procedural errors in the original sentencing process.

The court found that while the original sentences were not excessive, there was an error in the application of the discount for the appellant's plea of guilty. Consequently, the court resentenced the appellant to four months and two weeks’ imprisonment for the offence of driving while disqualified and seven months and two weeks’ imprisonment for the assault. The sentences for both offences were to be suspended upon the appellant entering into a good behaviour order for 18 months, and the disqualification period of two years was confirmed. The sentence for damaging property was upheld as appropriate.

In summary, the court confirmed the sentence for damaging property but resentenced the appellant for the other two offences, with the unserved sentences suspended upon the appellant entering into a good behaviour order. The disqualification period remained unchanged.

Orders

Orders of the court

Sentence for damage property confirmed. For drive while disqualified confirmed, resentenced to 4 months and 2 weeks’ imprisonment. Disqualification period of 2 years confirmed. For assault resentenced to 7 months and 2 weeks’ imprisonment. Unserved sentences suspended upon offender entering into a good behaviour order for 18 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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