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:
(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
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).
At the same hearing, the appellant was convicted and fined in respect of three additional charges, but these are…
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- Moutrage v Haines [2008] ACTSC 36
- Case
- [2008] ACTSC 36
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CaseChat Overview and Summary
The legal issues before the court included whether the Magistrates Court had the authority to impose a sentence of imprisonment for a total of 12 months and whether the sentence was manifestly excessive. The court was also required to consider the principles for determining appeals, the significance of early plea of guilty, and the availability of alternative sentencing options. Additionally, the court needed to address the subjective features of the defendant, including his mental health issues and the impact of general and specific deterrence.
The court found that the sentence imposed by the Magistrate was manifestly excessive and an error of law. The court considered the principles of sentencing, including the principle of totality and the maximum penalties for the offences. The court noted that the appellant had a history of repeat offences and that the maximum penalties were appropriate. However, the court also considered the availability of alternative sentencing options and the subjective features of the defendant, including his mental health issues. The court found that the sentence imposed by the Magistrate did not adequately take into account the appellant's early plea of guilty and the principle of proportionality.
The court ordered that the appeal be allowed and that the appellant be sentenced to imprisonment for a total period of 4 months, including time already served. The court made specific orders in relation to the sentences for each offence, including the imposition of concurrent and consecutive sentences. The court also ordered that the sentences be backdated to specific dates to reflect the time already served by the appellant.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.(a) the appeal is allowed; and
(b) the appellant is sentenced to imprisonment for a total period of 4? 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.
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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