Monteiro v State of New South Wales

Judgment

1. Mr Monteiro, who is presently in custody, commenced these proceedings by summons filed in 2014. On 26 October 2016, at the commencement of the hearing of two motions - one of 20 May 2016 brought by the Commissioner for Corrective Services seeking orders dismissing an earlier motion filed by Mr Monteiro in April 2016 and the other filed by Mr Monteiro on 13 May 2016, seeking to have the hearing of the Commissioner's motion vacated- Mr Monteiro made, and I refused, an application that I disqualify myself.
2. These are the reasons for the refusal of that application.
3. The basis of Mr Monteiro's application was that I was a member of the bench which dismissed an appeal he had brought against his sentence on account of Muldrock error (see Monteiro v R [2014] NSWCCA 277). There I and Gleeson JA agreed with reasons given by Bellew J for the dismissal of the appeal.
4. Additional evidence was received on that appeal. Bellew J described at [100] - [112] part of the case there advanced for Mr Monteiro to be: "100 In oral submissions, counsel for the appellant relied upon a number of matters in support of Grounds 5 and 6, as well as in support of the re-exercise of the sentencing discretion if any other ground was made out. 101 The first matter to which counsel referred was the additional medical evidence which included a further report of Dr Westmore of 29 September 2014. Dr Westmore diagnosed the appellant as suffering from an adjustment disorder with depressed, anxious and angry mood. He reported that the appellant was finding his period in custody "extremely difficult" and concluded that he was not able to diagnose the appellant as suffering from "a serious mental illness, such as a psychotic condition or a serious Mood Disorder such as Major Depressive Disorder or Bipolar Affective Disorder." He was unable to pass comment on any relationship between the appellant's mental state and his offending. 102 Dr Westmore also said: "He is a man who had a number of pre-existing psychological problems before he came into custody and, in my respectful view, the custodial experience has not actually assisted him resolve (sic) any of those problems. Indeed his custodial experience is likely to have aggravated and exacerbated those difficulties". 103 Two other medical reports are also before the Court. The first is that of Dr Stephen Allnutt, Psychiatrist, who examined the appellant on 10 February 2014. Dr Allnutt expressed the view that the appellant did not manifest symptoms consistent with Bipolar Disorder, but did exhibit a number of depressive symptoms. Dr Allnutt said that there was insufficient evidence to conclude that the appellant was a "mentally ill person" or a "mentally disordered person". He recommended (inter alia) that the appellant be moved to a main area of the gaol and that he be placed "one out". 104 The other report is that of Dr Stephen Woods, Clinical Psychologist, of 25 February 2014. Dr Woods reported: "Mr Monteiro presents with a number of "issues" that potentially result in him suffering a greater level of hardship as a result of being incarcerated than might otherwise be the case. Specifically Mr Monteiro suffers from an ear complaint that is apparently aggravated by cold weather.... Arising from this history, (a) he was reportedly classified as not suitable to share a cell with other inmates and (b) it was recommended that he not be held in gaols located in cold climate regions. Notwithstanding Mr Monteiro has reportedly spent most of the time served in gaols located in cold climate regions and was recently forced to share a cell with a person who he believes is a convicted child sex offender and possibly murderer, and is currently facing a charge of attempted murder of another inmate." 105 Dr Woods concluded that the appellant was not suffering from any active symptoms of a mental illness but was suffering from symptoms of Post-Traumatic Stress Disorder. He also noted that the appellant continued to assert his innocence. 106 Counsel submitted that this additional evidence established that as a consequence of his mental and physical health, the appellant's custodial sentence had become more onerous. 107 Secondly, counsel relied upon the fact that since the determination of his appeal by this Court four years ago, the appellant had been moved in custody no less than 43 times. Counsel pointed out that the longest continuous period in which he had been in the one custodial facility was 18 months. It was submitted that this had made it difficult for the appellant to settle in custody, undertake rehabilitative courses, and pursue studies. 108 Thirdly, counsel pointed to the fact that the appellant has been subject to various levels of protection since his incarceration. 109 Fourthly, counsel relied upon the fact that despite recommendations that the appellant be held in custodial facilities located in areas with a moderate climate due to health issues, he had spent periods in areas where the temperature was cold, and had been denied permission by the authorities to have access to a heater. It was further submitted that the various hardships suffered by the appellant in custody had been extreme, and that little rehabilitative purpose had been served, or would be served in the future by his continuing incarceration. 110 Fifthly, counsel submitted that it was relevant to consider that the principal offence was committed in the context of a relationship between the offender and the victim. It was submitted that even if it were accepted that the relationship had ended, it had done so only a short time beforehand and that the offending should be viewed in that context. 111 Sixthly, reliance was placed upon media publicity surrounding the appellant and his offending. It was submitted that on the basis of the appellant's affidavit evidence, that publicity had caused him to be, in effect, "targeted" in custody, giving rise to fears for his safety. 112 Finally, and in the event that this Court were to intervene and re-sentence the appellant, it was submitted that a finding of special circumstances should be made, based upon the appellant's need for psychiatric or psychological counselling, and an associated need for assistance to adjusting to living in the community."