[2010] NSWCCA 194
R v Metal Trades Employers' Association
Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208
[1951] HCA 3
R v Monteiro [2021] NSWDC 340
State of NSW v Monteiro (Final) [2020] NSWSC 881
Wilde v NSW [2015] NSWCA 28
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
R v Metal Trades Employers' AssociationEx parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208[1951] HCA 3
R v Monteiro [2021] NSWDC 340
State of NSW v Monteiro (Final) [2020] NSWSC 881
Wilde v NSW [2015] NSWCA 28
Judgment (5 paragraphs)
[1]
Judgment
THE COURT: On 17 February 2022, the Court issued orders the effect of which was to release the applicant, Mr Monteiro, on that day. The Court reserved reasons. These are the reasons of the Court.
Mr Monteiro was sentenced in the District Court to an aggregate sentence of imprisonment of 2 years and 8 months with a non-parole period of 2 years after pleading guilty to 10 counts of failing to comply with the requirements of an extended supervision order (hereinafter "ESO") and an interim supervision order (hereinafter "ISO"). [1] On 9 February 2022, Mr Monteiro (hereinafter "the applicant") brought an application before the Court for bail based on an appeal he lodged in relation to the severity of his sentence. The applicant is self-represented.
The applicant has also lodged an appeal to the Court of Appeal against the terms of the ESO imposed upon him in the Supreme Court and has given notice that he also desires to appeal against his conviction for breach of the ESO.
During the proceedings in the Court for bail, it became apparent that the Court would be required to determine, as an element of the exercise of its discretion to grant bail, the merits of the severity appeal. Given the need for the applicant for bail, in the circumstances of this application, to establish "special or exceptional circumstances", there are hurdles to the grant of bail that may not exist in relation to the severity of sentence. [2]
The applicant sought, during the grounds raised and the written submissions, to attack the validity of the making of the ESO and the appropriateness of the plea of guilty. Further, he relied upon an interpretation of the conditions imposed as part of the ESO as the basis for submitting that it was impossible, on the facts, to have been in breach of the ESO and there was an error of law in the District Court in accepting the plea.
These collateral attacks on the validity of the ESO or its interpretation and the appropriateness of accepting a plea to a breach of the ESO are not before the Court, as presently constituted. Moreover, there are significant issues associated with collateral attacks of this kind and whether this Court has jurisdiction, inherent or otherwise, to deal with such issues.
Any appeal against the imposing of an ESO is an appeal that is in the jurisdiction of the Court of Appeal. On the other hand, an appeal against conviction in the District Court is an appeal to this Court.
This Court does not have the jurisdiction, given its statutory jurisdiction and notwithstanding the provisions of s 12 of the Criminal Appeal Act 1912 (NSW), to entertain an appeal against an order of the Supreme Court otherwise than in the exercise of its criminal jurisdiction. Further again, the imposition of an ESO, as an order of a superior court of record, is valid and must be obeyed until such time as it is set aside. [3]
Thus, for the purposes of the appeal against severity of sentence, the Court treats the imposition of the ESO as valid and does not entertain a collateral attack on its validity. Further, the Court is not dealing with the conviction appeal. Nothing in these reasons for judgment are intended either to support or undermine the validity or appropriateness of the imposition of the ESO, its conditions or the plea and conviction.
Nevertheless, it is necessary to deal briefly with the objects of the Crimes (High Risk Offenders) Act 2006 (NSW). Its primary purpose is to provide for extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders to ensure the safety and protection of the community. A further object is the encouragement of rehabilitation amongst such persons.
The Supreme Court, in determining whether to impose an ESO, evaluates whether the defendant to the proceedings is a high-risk offender of a particular kind and whether he poses an unacceptable risk such that, relevantly, an ESO should be imposed. The satisfaction that the defendant in such proceedings poses an unacceptable risk requires the Court to be satisfied of that circumstance to a high degree of probability.
This requires weighing the likelihood of the commission of a further offence with the consequences of such an offence, were it to be committed. The likelihood that the defendant, in such proceedings, will commit a serious offence is not required to be determined as more likely than not. [4]
The conditions that are imposed in an ESO are conditions that are considered appropriate by the Supreme Court for the amelioration of the unacceptable risk that has otherwise been determined. [5] Nevertheless, s 11 of the Crimes (High Risk Offenders) Act does not require a specific and demonstrated link to past offending. Rather, it requires the Court to determine that the condition is appropriate to address the risk of future offending of the kind that formed the basis for the ESO being imposed. [6]
[2]
Offences
The applicant was sentenced in relation to 10 offences. There were two offences dealt with pursuant to the terms of s 166 of the Criminal Procedure Act 1986 (NSW), being offences that would otherwise be dealt with in the Local Court. Those offences were failure to comply with ESO by the use of another name, being Simon White; a second count in relation to the name Adam Lowe; and a failure to comply with Extended Supervision Order by use of a device not notified, being an iPhone X and a HUAWEI NOVA 3E.
The other eight offences are best illustrated in the following table, which sets out the count number, the offence, and the indicative sentence set by the District Court including the relevant reduction for the plea of guilty. The maximum sentence for the offence of failing to comply with the requirements of an ESO or ISO is 500 penalty units or imprisonment for 5 years, or both. We set out the table:
Count Offence Indicative Sentence
1 Breach of condition 23 ISO - Use of iPhone X, Huawei Nova 3E and MacBook Pro 1 year and 2 months (after 10% reduction for guilty plea)
2 Breach of condition 17 ESO - sending and receiving emails and text messages and access websites while subject to ESO 10 months (after 10% reduction for guilty plea)
3 and 4 Breach of conditions 33 and 34 ISO - set up email address under name of Anthony Winter to send emails to the Community Corrections Officer Each 10 months (after 10% reduction for guilty plea)
5,6 and 7 Breach of conditions 17, 24 and 16 ESO - use of 6 email addresses, 10 alternate names and 4 social media accounts Counts 5 and 6: 1 year; Count 7: 1 year and 2 months (after 10% reduction for guilty plea)
8 Breach of condition 13 ESO - use of alternate name to facilitate business venture that purchased, advertised and distributed torches 1 year (after 10% reduction for guilty plea) taking into account the Form 1
9 Breach of condition 23 ESO - use of Gumtree account with two alternate names Taken into account on a Form 1 in Count 8
Section 166 certificate offences
Sequence 1 Breach of conditions 17 and 24 ESO: use of alternate name and unregistered devices (see above) 3 months (after 25% reduction for guilty plea)
Sequence 2 3 months (after 25% reduction for guilty plea)
Sequence 3 12 months (after 25% reduction for guilty plea)
[3]
Remarks on Sentence
As earlier stated, the applicant was sentenced in the District Court on 16 June 2021. In her remarks on sentence, Bright DCJ summarised the agreed facts and the terms of the ESO and its conditions that were imposed upon the applicant.
Further, her Honour noted the objects of the Crimes (High Risk Offenders) Act and the circumstances that must be satisfied for an ESO to be imposed. Her Honour also referred to the judgment imposing the ESO. [7]
Her Honour extracted passages that recited the opinion of two forensic psychiatrists, whose reports were ordered by the Supreme Court in the earlier orders that imposed an ISO, and upon whose reports Fagan J relied in reaching the conclusion necessary for the making of the ESO.
As earlier stated, Bright DCJ summarised the facts in relation to each count. The foregoing table sets out in very general terms the circumstances of the offending. It is unnecessary to do more because the remarks on sentence of Bright DCJ are reported. [8]
In determining the objective seriousness of each count, her Honour, at [73], set out the factors upon which she relied. In relation to Count 1, they were:
"1. The nature of the breach of the interim supervision order being that the offender had not declared two phones and one laptop, an Apple MacBook.
2. The period of the offending was between 30 April 2020 and 6 July 2020 a period of two months and one week. The offender during that period had sent and received emails and text messages on each of these devices.
3. On 6 April 2020, the offender had told a Community Corrections officer that he had no relevant devices other than the one phone that he had provided information about."
In relation to Count 2, the factors that her Honour recited were, at [74]:
"1. The nature of the breach was that the offender had not declared his laptop, the Apple MacBook, during the terms of the extended supervision order.
2. The period of the offending was between 5 July 2020 and 19 August 2020, approximately six weeks. The offender had been using this device during that time.
3. The offender had told a Community Corrections officer that he had no devices other than his phone."
Her Honour made clear that the offences prevented inspection of the devices for the purposes of monitoring compliance with the ESO. In relation to Count 1, her Honour regarded the objective seriousness as mid-range. In relation to Count 2, her Honour determined that the objective seriousness was below mid-range.
Her Honour determined that Counts 3 and 4 were each below mid-range and took into account the following factors, at [78]:
"1. That at the time of the offending the offender was required to provide a weekly schedule of his movements.
2. He used a false name and email to deliberately deceive Community Corrections New South Wales in relation to his movements.
3. Each name and email address was used between 7 May 2020 and 15 May 2020."
In relation to Count 5, her Honour determined that the objective seriousness was "just below the mid-range" and took into account the following factors, at [80]:
"1. The nature of the breach was using six email addresses that were not declared.
2. The duration of the offending was between 5 July 2020 and 19 August 2020.
3. On 22 July 2020, the offender had told a Community Corrections officer that he only uses one email address and had disclosed that address."
In relation to Count 6, her Honour determined that the objective seriousness was, again, "just below the mid-range". There was some confusion in her Honour's published remarks in that there are two statements as to the factors taken into account in determining the objective seriousness in relation to Count 6, which are not the same. Her Honour remarked at [81] of her remarks [9] that the following factors were taken into account in assessing objective seriousness:
"1. The nature of the breach was using a name other than the offender's name.
2. The offender used ten names during the offending period between 7 July 2020 and 19 August 2020. That is a period of six weeks.
3. The offender used a combination of false names with email accounts that were not declared."
At [86] of her Honour's remarks, supra, her Honour set out different factors, being:
"1. The nature of the breach was using four social media applications that were not declared.
2. The duration of the offending was between 5 July 2020 and 19 August 2020 a period of approximately six weeks.
3. During that time 80 searches have been conducted on a Facebook account, including the name of at least one Corrective Services New South Wales female staff member. An Instagram account was used that had 236 followers. A WhatsApp application was used, that is an encrypted service. This account was regularly used by the offender. A Line application was also located. There was no evidence in relation to how regularly this account was used by the offender."
The confusion arises from what seems to be a typographical error and the reference in [86] should be to the objective seriousness factors in Count 7. Count 7 was determined by her Honour to be at the mid-range and Count 8 was determined by her Honour to be "just below the mid-range" in objective seriousness. In so finding, her Honour took into account the following factors in relation to Count 8, at [89]:
"1. The nature of the breach was a failure to declare the nature and place of employment.
2. The duration of the offending was between 5 July 2020 and 19 August 2020, a period of approximately six weeks.
3. During his employment, the offender used a name and an email account that had not been declared. Again, this prevented Corrective Services New South Wales from remotely inspecting that email account for the purpose of ensuring compliance with the extended supervision order (see condition 18 of the extended supervision order)."
Her Honour then dealt with the subjective circumstances of the applicant who was at the time of sentencing, 54 years old. Her Honour set out the applicant's criminal history which included an assault on police and an assault occasioning actual bodily harm; destroy and damage property; supplying prohibited drug; stalk and intimidate; and aggravated sexual assault. The foregoing related to his NSW criminal history and there was a Queensland history involving assault occasioning actual bodily harm and a Commonwealth offence of improper use of a telecommunication service.
The applicant has a history of Post-Traumatic Stress Disorder (PTSD), which was the result of sexual abuse suffered at a boarding school in his youth. He gave evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse and attended counselling on a weekly or fortnightly basis over a six-year period. He has also been diagnosed with antisocial and narcissistic personality disorder and/or personality disorder with borderline, narcissistic and antisocial traits.
In the course of dealing with the applicant's attitude to offending, her Honour remarked that the applicant "disputed the justification for the Extended Supervision Order". It is not clear how that aspect impacted upon her Honour's sentencing discretion. The offences in question relate to a breach of the Extended Supervision Order and the fact, if it were the fact, that the applicant disputed the justification for the ESO may inform a view that it was unnecessary to comply with it, but her Honour did not express that opinion.
The applicant gave her Honour what was described as a "rational albeit indignant account" of the breaches of the order, emphasising the practical difficulties encountered as a result of the restrictions. In part at least, the applicant made clear that using a false name was designed to avoid "discrimination, exclusion or persecution" which would have resulted from the media attention that he had received. He expressed the view to her Honour that none of the breaches committed were committed with a harmful or exploitative intention.
The applicant also perceives that his safety in custody is in danger from violence from other inmates.
Her Honour summarised the parties' submissions before coming to the view that custody would be more onerous for the offender as a result of his physical ailments. Her Honour also took into account on sentence the detrimental effect the applicant's incarceration would have on the applicant's father but did not find that this amounted to exceptional hardship. Her Honour referred to the expressions of remorse but gave them limited weight because they were not on oath and expressed the view that the prospects of rehabilitation were very guarded.
Lastly, her Honour referred to the well-known passage relating to the manner in which one takes into account mental health from De La Rosa. [10] Her Honour took the view that the offender's moral culpability was not reduced because there was no expert evidence to establish a causal link between the applicant's mental condition and the offending. However, her Honour did take into account the mental condition on the basis that it will make custody more onerous. Her Honour does not deal with any effect of the mental condition on general deterrence nor whether the applicant is a proper vehicle for general deterrence.
In relation to the applicant's prospects of rehabilitation, her Honour expressed the view that rehabilitation "must necessarily be very guarded, having regard to the risk assessment undertaken during the Extended Supervision Order hearing and his previous response to supervision being considered poor". To the extent that her Honour referred to the risk assessment undertaken for the ESO, this was a risk assessment relating to the commission of serious offences and/or recidivism related to the index offences. Her Honour was dealing with offences that related to the breach of the ESO, none of which, on the material before the sentencing court and before this Court, related to offending of the kind that gave rise to the necessity for an ESO.
[4]
Consideration
In dealing with offences for breach of an ESO, there is a fine but important distinction to be drawn between offences that point to planning for, or the commission of, serious sexual or violence offences, on the one hand, and, on the other hand, breaches of the regime that are not in that category. The offences committed by the applicant are not in the category of planning for, or preparation for, or the commission of, serious sexual or violent offences. There may be occasions in certain offences that have given rise to an ESO where the breach of a supervisory condition discloses an increased risk of serious offending such as to give rise to additional factors affecting the seriousness of the breach. This is not such a case.
The range of sentences prescribed by the legislature for a breach of an ESO range from fines to imprisonment and, of course, include all the options available under the Crimes (Sentencing Procedure) Act 1999 (NSW). Nevertheless, the sentence for some of the offences for breach of an ESO could be achieved by the imposition of a fine. Some breaches of an ESO will be highly technical and not warrant imposition of a custodial sentence, either full-time or otherwise.
Other breaches will be less technical, but not concerned with issues that, on their face, involve themselves in a greater risk of the commission of an offence that can be described as a serious sexual or violent offence. Many of the conditions included in an ESO imposed on a defendant to those proceedings are conditions that facilitate the supervision itself.
The breaches here in question are breaches of conditions that facilitate supervision. They go to the use of a different name; the use of electronic equipment; and, the use of programs of a kind that were either prohibited or not approved by the applicant's supervising officer.
Compliance with such conditions is important, but in circumstances where it is known that the breaches were not related to serious offending, either the commission of it or in preparation of it, nor increase the risk of serious offending, the breach may be assessed as mid-range, but that will be or ought to be uncommon.
The assessment of the breaches as mid-range or just below mid-range, as earlier stated, was incorrect. It seems, albeit implicitly, that her Honour dealt with the offences of breaching an ESO, bearing in mind the seriousness of the index offences that gave rise to the ESO, when that which is required to be determined is the breach of the ESO itself. The Court takes the view that the offending is not at the lowest level but is, otherwise, well below mid-range.
No doubt, if the breach of the ESO gave rise to an increased risk of the commission of a serious offence of the kind for which the ESO was imposed, that would impact upon the assessment of objective seriousness. In this case, none of the offences are in that category.
On the other hand, given that the applicant is already under an ESO, the imposition of a Community Service Order or an Intensive Correction Order may not result in any punishment whatsoever. In such circumstances, a fine may be far more effective than the imposition of a non-full-time prison sentence.
The offences in question, because they go to the heart of the supervision process, and, whatever be the motive, amount to a significant impediment to the supervision process being fully implemented, satisfy the bar set by s 5 of the Crimes (Sentencing Procedure) Act, and no penalty other than imprisonment is appropriate. Further, for the reasons just mentioned, we do not consider that a Community Services Order or an Intensive Corrections Order is appropriate.
Nevertheless, on the basis of the comments already contained within these reasons, we consider that the sentence imposed upon the applicant is manifestly excessive. It is necessary for the Court to re-sentence.
We take into account all the foregoing matters and each of the subjective elements to which her Honour referred. The Court also has regard to the mental illness to ameliorate moral culpability and to lessen slightly the appropriateness of general deterrence as a factor in the sentence. The manifest excess arises, at least in part, from a breach of the principle of totality. Given the similarity in the offending, the nature of the offending and the motivation of the offending, there is, in effect, one course of offending and the aggregate sentence is unreasonable or plainly unjust.
As submitted by the Crown, specific deterrence is an important factor. Whatever be the view of the applicant as to the appropriateness of the ESO or any condition, during the subsistence of the ESO, the conditions imposed must be obeyed.
The Court is required to re-sentence and would set the following indicative sentences: in relation to the offences with which the Court is dealing under s 166 of the Criminal Procedure Act we would, taking into account a reduction of 25% on account of the utilitarian value of the plea of guilty and rounding to whole months, set an indicative sentence of 2 months for each of them.
In relation to the indictable offences and taking into account on Count 8 the Form 1 offence of the use of "Gumtree" to sell matters in alternate names, we would set the following indicative sentences:
1. Count 1: use of devices - 12 months' imprisonment,
2. Count 2: sending and receiving emails and text messages and accessing websites - 9 months' imprisonment,
3. Count 3 and Count 4: establishing email addresses under a false name in order to send emails to community corrections officers - 9 months' imprisonment,
4. Count 5 and Count 6: use of 6 email addresses, 10 alternate names and 4 social media accounts - indicative sentence of 1 years' imprisonment each,
5. Count 7: indicative sentence of 12 months' imprisonment,
6. Count 8: taking into account the Form 1, facilitating the business venture - 9 months' imprisonment.
Applying the principle of totality, and bearing in mind that any parole period and the conditions on parole would be less restrictive than the conditions imposed as a result of the ESO, we would impose a fixed sentence, with no parole period, of 18 months' imprisonment.
The foregoing are the reasons for orders made on 17 February 2022, which were in the following terms:
1. Grant leave to appeal;
2. Allow the appeal against severity of sentence;
3. Quash the sentence imposed by the District Court on the applicant, Simon Monteiro, on 16 June 2021. In lieu thereof sentence the applicant to a fixed term of imprisonment of 18 months, commencing 18 August 2020 and expiring 17 February 2022.
4. The applicant is to be released on 17 February 2022.
[5]
Endnotes
R v Monteiro [2021] NSWDC 340.
Bail Act 2013 (NSW), s 22.
R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241 (Latham CJ); [1951] HCA 3.
Crimes (High Risk Offenders) Act, ss 5B and 5C.
Crimes (High Risk Offenders) Act, s 11.
Wilde v NSW [2015] NSWCA 28; (2015) 249 A Crim R 65.
State of NSW v Monteiro (Final) [2020] NSWSC 881 (Fagan J).
R v Monteiro [2021] NSWDC 340.
R v Monteiro [2021] NSWDC 340.
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 February 2022