Morales v Faccin and Wiseman

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

1. The appellant appeals against the severity of sentences imposed on 15 June 2017 in the Magistrates Court.

1. 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).

1. On 15 June 2017, the Magistrate imposed fines for many of the offences.

1. 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).

1. The total sentence was two months and 13 days imprisonment from 15 June 2017 to 27 August 2017.

1. 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.

1. On 7 July 2017, the appellant was granted bail. Prior to her release, she had served 23 days of the sentences.

Appeal

1. 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