SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | TD v Mainey |
Citation: | [2017] ACTSC 420 |
Hearing Date: | 27 October 2017 |
DecisionDate: | 30 October 2017 |
Before: | Mossop J |
Decision: | 1. The sentences on charges CC2017/4755 and CC2017/5938 are confirmed. 2. The sentence on charge CC2017/4555 is set aside and the appellant is re-sentenced as follows: The appellant is convicted and required to enter into a Good Behaviour Order for a period of 12 months commencing on 30 May 2017 and ending on 29 May 2018 on the same conditions as were imposed by the magistrate. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – contravention of a domestic violence order – family violence – alleged manifestly excessive sentences imposed by magistrate – appellant seeking a non-conviction order – consideration of mental health concerns – disregard of court orders – appeal partially upheld – appellant resentenced on one count – Good Behaviour Order |
Legislation Cited: | Crimes Act 1900 (ACT), s 309 Crimes (Sentencing) Act 2005 (ACT), s 17 Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | Dalton v The Queen [2015] ACTCA 48 R v Ellis [2014] ACTSC 389 R v Longstaff (Unreported, Nield AJ, ACT Supreme Court, |
Parties: | TD (Appellant) Peter Joseph Mainey (First Respondent) Robert James Morgan (Second Respondent) Chloe Anderson (Third Respondent) |
Representation: | Counsel A Fraser (Appellant) S Janackovic (Respondents) |
| Solicitors Armstrong Legal (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 49 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 30 May 2017 Case Title: Peter Joseph Mainey v TD Robert James Morgan v TD Chloe Anderson v TD Court File Numbers: CC2017/4555 CC2017/4755 CC2017/5938 |
MOSSOP J:
Introduction
This is an appeal from a decision of the ACT Magistrates Court on 30 May 2017. The appellant, TD, appeals from three convictions and prison sentences, two of which were wholly suspended upon the appellant entering a Good Behaviour Order for 12 months and the other wholly suspended after eight days upon entering a Good Behaviour Order. The grounds of appeal are that the sentences were manifestly excessive.
The sentences
The appellant was sentenced on 30 May 2017. The first two charges related to the contravening of a domestic violence order (Domestic Violence and Protection Orders Act 2008 (ACT), s 90(2)). The maximum penalty for that offence was five years imprisonment, or 500 penalty units, or both. The third charge was a charge of contravening a family violence order (Family Violence Act 2016 (ACT), s 43(2)). This section carries the same maximum penalty as the first two charges. The charges, the offence dates and the sentence imposed were as follows:
Charge Date of offence Sentence imposed CC2017/4555 21 April 2017 One month imprisonment suspended upon entering into a 12 month Good Behaviour Order
CC2017/4755 27 April 2017 Two months…
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CaseChat Overview and Summary
The primary legal issues revolved around the severity of the sentences imposed and the court's failure to take into account the appellant's mental health circumstances. The appeal argued that the sentences were excessively harsh and that the court had not appropriately balanced the need for deterrence and punishment against the appellant's personal circumstances. Additionally, the appellant contended that the court had not adequately considered his mental health issues, which could have warranted a more lenient sentence or a non-conviction order.
The Court of Appeal found that while the sentences on two charges were confirmed, the sentence on the third charge was set aside due to its manifestly excessive nature. The court acknowledged the appellant's mental health issues and recognised that these should have been a significant factor in the sentencing process. The Court of Appeal concluded that the original sentence was disproportionate and ordered that the appellant be re-sentenced on the third charge. The new sentence required the appellant to enter into a Good Behaviour Order for a period of 12 months, mirroring the conditions imposed by the magistrate. This outcome recognised the need for appropriate punishment while taking into account the appellant's mental health circumstances.
The final orders confirmed the sentences on two charges, set aside the sentence on the third charge, and re-sentenced the appellant to a Good Behaviour Order for a period of 12 months, effective from 30 May 2017 to 29 May 2018, under the same conditions as originally imposed by the magistrate. This decision highlights the importance of considering individual circumstances, including mental health, in the sentencing process.
Orders
Orders of the court
1. The sentences on charges CC2017/4755 and CC2017/5938 are confirmed.
2. The sentence on charge CC2017/4555 is set aside and the appellant is re-sentenced as follows:
The appellant is convicted and required to enter into a Good Behaviour Order for a period of 12 months commencing on 30 May 2017 and ending on 29 May 2018 on the same conditions as were imposed by the magistrate.
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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