Moutrage v Haines

[2008] ACTSC 36

MOHAMED MOUTRAGE v HARRY THOMAS HAINES [2008]
ACTSC 36 (8 May 2008)

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – error of law by Magistrate – manifestly excessive sentence – Magistrates Court Act 1930 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – repeat offenders – when maximum penalties are appropriate – availability of alternative sentencing options – significance of early plea of guilty – principle of totality – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – offences – traffic offences – breach of good behaviour order – Road Transport (Driver Licensing) Act 1999 (ACT).
CRIMINAL LAW – subjective features of defendant – mental health issues – impact of general and specific deterrence.

Road Transport (Driver Licensing) Act 1999 (ACT), par 32(1)(a), subs 31(2)
Criminal Code 2002 (ACT), s 321
Crimes (Sentencing) Act 2005 (ACT), s 35

R v Thomson; R v Houlton [2000] NSWCCA 309
Mill v R (1988) 166 CLR 59

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 89 of 2007

Judge:             Penfold J
Supreme Court of the ACT

Date:              8 May 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 89 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:MOHAMED MOUTRAGE

Appellant

AND:HARRY THOMAS HAINES

Respondent

ORDER

Judge:  Penfold J
Date:  8 May 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. (a)      the appeal is allowed; and

(b)      the appellant is sentenced to imprisonment for a total period of 4½ months (including time already served), made up as follows:

(i)3 months in respect of the breach of the good behaviour order imposed in respect of the 2006 offence of driving while unlicensed, backdated to 20 January 2008;

(ii)3 months in respect of the 2007 offence of driving while disqualified, concurrent with the first sentence as to 2 months and consecutive as to one month, and therefore backdated to 20 February 2008; and

(iii)one month in respect of the offence of minor theft, concurrent with the second sentence as to 15 days and consecutive as to the remainder of the month, and therefore backdated to 5 May 2008, expiring on 4 June 2008.

Introduction

1. This is an appeal from three sentences of imprisonment imposed in the Magistrates Court.  These relate to:

(a)one offence of driving while disqualified contrary to par 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 of the ACT (referred to in these reasons as the new driving offence);

(b)one offence of minor theft under s 321 of the Criminal Code 2002 of the ACT; and

(c)a breach of a good behaviour order in connection with a suspended sentence imposed on 23 January 2007 for the offence of driving while unlicensed contrary to subs 31(2) of the Road Transport (Driver Licensing) Act 1999 (referred to in these reasons as the earlier driving offence).

1. At the same hearing, the appellant was convicted and fined in respect of three additional charges, but these are…