Morales v Faccin and Wiseman
[2018] ACTSC 100
•7 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Morales v Faccin and Wiseman |
Citation: | [2018] ACTSC 100 |
Hearing Date: | 7 March 2018 |
DecisionDate: | 7 March 2018 |
Before: | Murrell CJ |
Decision: | Appeal allowed. See [28]–[29]. |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentences – whether sentences manifestly excessive – consideration of the prospects of rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 33 |
Cases Cited: | Moutrage v Haines [2008] ACTSC 36 |
Parties: | Rachel Morales (Appellant) Monique Faccin (Respondent) Joel Wiseman (Respondent) |
Representation: | Counsel Mr L Vozella (Appellant) Ms V Conliffe (Respondent) N/A (Respondent) |
| Solicitors Bevan and Co Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) N/A (Respondent) | |
File Numbers: | SCA 50 of 2017; SCA 51 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Cook Date of Decision: 15 June 2017 Case Title: R v Morales Citation: CC16/11233; CC16/11246; CC17/11247; CC17/2244; CC17/2030; CC17/2031 |
MURELL CJ
The appellant appeals against the severity of sentences imposed on 15 June 2017 in the Magistrates Court.
The sentences referred to five offending episodes:
(a)26 February 2016—unlawful possession of stolen property (count 1) and obtaining property by deception (count 2).
(b)1 April 2016—unlawful possession of stolen property (count 3) and obtaining property by deception (count 4).
(c)28 September 2016—driving with a prescribed drug in oral fluid, use of an unregistered vehicle, use of an uninsured vehicle, numberplate not properly issued.
(d)15 January 2017—use of an unregistered vehicle, use of an uninsured vehicle, numberplate not properly issued, driving while license suspended (count 12).
(e)9 February 2017—use of an unregistered vehicle, use of an uninsured vehicle, driving while license suspended (count 15).
On 15 June 2017, the Magistrate imposed fines for many of the offences.
However, his Honour also imposed the following sentences of full-time imprisonment:
(a)Count 1—one month's imprisonment, 15 June 2017 to 14 July 2017 (maximum penalty: six months' imprisonment);
(b)Count 2—two months' imprisonment, 15 June 2017 to 14 August 2017 (maximum penalty: 10 years' imprisonment);
(c)Count 3—one month's imprisonment, 15 June 2017 to 14 July 2017 (maximum penalty: six months' imprisonment);
(d)Count 4—two months' imprisonment, 15 June 2017 to 14 August 2017 (maximum penalty: 10 years' imprisonment);
(e)Count 12—two months' imprisonment, 24 June 2017 to 23 August 2017 (maximum penalty: six months' imprisonment);
(f)Count 15—two months' imprisonment, 28 June 2017 to 27 August 2017 (maximum penalty: six months' imprisonment).
The total sentence was two months and 13 days imprisonment from 15 June 2017 to 27 August 2017.
The total amount of the fines was $4260.00. His Honour allowed no time to pay. Consequently, the fines could be acquitted by serving sentences of imprisonment.
On 7 July 2017, the appellant was granted bail. Prior to her release, she had served 23 days of the sentences.
Appeal
The grounds of the appeal were:
(a)The sentences are manifestly excessive in all respects.
(b)The Magistrate failed to have regard to relevant considerations under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).
(c)The Magistrate failed to elucidate the purpose of the sentences.
(d)The Magistrate failed to adequately consider alternative sentencing options and failed give reasons as to why imprisonment was the only appropriate sentence.
(e)The Magistrate failed to determine an appropriate sentence for each offence before considering totality.
(f)The Magistrate failed to give appropriate weight to the appellant’s lack of criminal history.
Facts
The facts for the offences on 26 February 2016 were that, on 19 November 2015, a STIHL blower had been stolen from a garden shed. On 26 February 2016, the appellant went to a pawnbroker and exchanged the stolen blower for the sum of $60.00. The possession of the blower was the subject of the offence of unlawful possession of stolen property and the obtaining of the $60.00 was the subject of the offence of obtaining property by deception.
As the Magistrate himself said, these offences were of low objective seriousness. There is no indication of the real value of the blower, although the sum of $60.00 that was obtained from the pawnbroker may provide some indication. The appellant was not charged with stealing the blower. The pawning incident was not associated with any particular subterfuge. Both offences are of very low objective seriousness.
Much the same can be said of the offences of 1 April 2016. On 30 March 2016, someone broke into a secured toolbox fitted to the rear of a vehicle and stole tools. On 1 April 2016, the appellant attended the same pawnbroker that she had attended on the previous occasion and handed some of the stolen tools to the pawnbroker, receiving the sum of $165.00 in exchange. Again, no particular subterfuge was involved. The appellant provided her ACT driver’s licence and her passport to the pawnbroker, clearly identifying herself as the alleged owner of the property.
The pawned value of the property was relatively low, given the number and nature of the items. No doubt they were valuable to their owner, but the appellant herself did not obtain a very substantial sum of money from the pawnbroker. As the Magistrate noted, the objective seriousness of these matters was low. It was very much towards the lower end of the spectrum.
The offence of 15 January 2017 occurred when police observed the appellant driving into the driveway of the address she had given. They pulled up behind her. She identified herself correctly. She had a front seat passenger. In the rear seat, her four‑year‑old child was seated. Her licence had been suspended on 12 October 2016—i.e., three months earlier—due to an unpaid traffic infringement notice.
As the Magistrate observed, some seriousness attached to the offence because there were passengers in the vehicle. However, there was no suggestion that the appellant had driven a long distance or driven negligently. The offence is not at the lowest end of the spectrum in terms of objective seriousness, but nor was it was a matter of great objective seriousness.
The facts of the incident on 9 February 2017 were that the police were patrolling in the street in which the appellant resided. They observed the appellant driving a vehicle, which they stopped. They found that her licence had been suspended seven days earlier—on 2 February 2017—due to a fine default.
This offence was not at the bottom end of the spectrum of objective seriousness but it was very much towards the lower end given that the licence had been suspended only seven days earlier. There is no suggestion of any associated poor driving and the appellant was apprehended very close to her address; there was no suggestion of driving over an extended period.
Subjective features
The appellant was a 32-year-old woman with no prior criminal history. She was in a relationship. There was a child of that relationship, who had been removed from her care. However, the appellant maintained contact with the child. As the Magistrate found, she was genuinely motivated to rehabilitate in order to resume care of the child on a more fulltime basis.
The appellant's partner was a negative influence who supported the appellant’s use of illicit substances, particularly from 2016 onwards, i.e., from about the time that the offences occurred. There is no suggestion of a longstanding serious drug problem. The appellant asserted that, at the time that she came before the Court, she was no longer using illicit substances. There was no evidence to the contrary. Although the appellant’s partner was a bad influence, there were also positive influences, including strong support from her family.
Other matters considered by the Magistrate
First, the Magistrate referred in passing to sentencing purposes. His Honour referred to general deterrence and specific deterrence, noting that both were relevant. He also referred to accountability and protection of the community. His Honour went on to say that he was "not ruling out rehabilitation." That was the beginning and end of any reference to rehabilitation as a relevant sentencing purpose.
When dealing with the question of a discount for a plea of guilty, his Honour referred to the timing of the pleas, noting that different pleas had been entered at different times and observing that, in respect of some matters, a discount of 25 per cent might be appropriate. His Honour then decided that he would, in effect, impose a discount of 15 per cent for all matters. That is an odd approach. Discounts should be applied to individual charges, reflecting the individual circumstances in which pleas of guilty have been entered. Further, it is very difficult to see how the discount of 15 per cent was reflected in the outcome for any matter.
His Honour was clearly troubled by the fact that, although the appellant was before the Court for the first time, the appearance related to five episodes of criminality spanning a period of about 12 months. His Honour had regard to an observation of Penfold J in Moutrage v Haines [2008] ACTSC 36 at [40], in which her Honour said, "The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend." It would appear that his Honour considered that observation to be apposite to the circumstances with which he was dealing, although it is plain that Penfold J was concerned with the self-evident proposition that, just because a person has not been to prison, that does not mean that they will never go to prison.
His Honour was very concerned with the fact that the series of offending had spanned 12 months. His Honour said:
I am satisfied there remains an obligation to discourage you and others through general deterrence, and given, of course you do not have any previous convictions specific deterrence is not entirely relevant, other than the fact that I need to put in place something that deters you from doing this type of series of offending again going forward.
Then on the next line:
They are all relevant considerations in sentencing to bring you to account for your continuing failure to comply with your legal obligations. As a consequence, your conduct should attract an appropriate punishment, but it must be balanced against the other requirements that I mentioned to you earlier in section 7 and section 33 criteria of the Crimes (Sentencing) Act.
His Honour went on to discuss subjective features. Again, his Honour said:
The real issue for me coming forward is that these matters are all being dealt with at one time, even though they occurred over a period of time from 2016 to 2017. If they had been dealt with in a relatively short period of time, of course you would have an established criminal history and then that could be seen. In one sense, I am sort of driven to have a look at it that way, that these matters go back into 2016 and come forward into 2017, although there is a lateness in the presentation of those matters before the court.
On the next line, his Honour remarked "No-one is to blame for that, but I am just saying how I need to view it."
It is unclear what his Honour was dealing with in that passage, but if his Honour was saying that a person who comes before the court for a series of offences is to be treated as a repeat offender for the later of those offences, then his Honour was wrong.
An important sentencing purpose is the purpose of rehabilitation. If an offender comes before the court and is given a lenient sentence that allows them one or perhaps several opportunities to rehabilitate, but the offender continues to defy the criminal law, then that is one thing. But if an offender has not previously been before the court, has been afforded no prior opportunity to rehabilitate and has demonstrated no continuing defiance of the criminal law, then earnest consideration should be given to sentencing options that support rehabilitation.
Manifest Excess
As the Crown in effect conceded, the sentencing outcome was surprising. A 32 year old first-time offender with some capacity to rehabilitate committed offences of low objective seriousness, but she received a sentence of full-time imprisonment without a clear explanation as to why. Prima facie the sentences of imprisonment were outside the available range and call for intervention.
The reasons of the Magistrate disclose some matters which may have led his Honour into error. I have already referred to the question of discount. In addition, his Honour did not consider the appellant's rehabilitation prospects and did not consider how or why lesser sentencing options might have supported rehabilitation.
Further, while his Honour did impose individual sentences, his Honour does not appear to have given any considered thought to the appropriate sentence for a particular matter. Take, for example the offence of obtaining property by deception on 26 February 2016. This was the first occasion that the appellant had engaged in criminal misconduct. The value of the property was $60.00. I cannot understand how such an offence could warrant a sentence of two months' imprisonment. That is perhaps the most glaring example of a sentence that does not seem to match the objective seriousness of the offence, but in respect of other offences similar comments could be made.
In relation to the six offences where sentences of imprisonment were imposed, the appeal is allowed. Otherwise, the appeal is withdrawn and dismissed.
I resentence the appellant as follows:
(a)In respect of counts 1 and 2: a six-month good behaviour order; in respect of counts 3 and 4: a 12-month good behaviour order; in respect of counts 12 and 15, an 18-month good behaviour order. The good behaviour orders are concurrent.
(b)The good behaviour orders are to include the additional conditions that the appellant submit to the supervision of Community Corrections for a period of six months from today or such lesser period as Corrections deems appropriate. The appellant is to report to the duty corrections officer in the Magistrates Court, and if that person is unavailable, then to the Community Corrections office in London Circuit, by 4:00 PM on 7 March 2018.
(c)The appellant is disqualified from holding or obtaining a driver’s licence for a period of one month commencing 7 March 2018.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: |