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Court of Criminal Appeal 26 November 2014

Monteiro v R

[2014] NSWCCA 277

Sexual offences
APPEAL MULDROCK ERROR SEXUAL OFFENDING SENTENCE SEXUAL OFFENDING CONDITIONS OF CUSTODY

Citation: Monteiro v R [2014] NSWCCA 277
Court: Court of Criminal Appeal, NSW
Date: 26 November 2014
Judge(s): Gleeson JA, Schmidt J, Bellew J

Background

The appellant was convicted after trial in the District Court of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW). The offence involved sexual intercourse with the victim without her consent, preceded by the intentional infliction of actual bodily harm. The appellant had previously shared the victim's Bellevue Hill flat during an intimate relationship that had ended. The principal offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The sentencing judge imposed a total sentence of 12 years and 3 months imprisonment, with a non-parole period of 7 years and 9 months. The appellant's earlier appeal against conviction was dismissed, as was his initial appeal against sentence and the Crown's appeal against the adequacy of that sentence (reported as Monteiro v R [2011] NSWCCA 113).

Following the High Court's decision in Muldrock v R [2011] HCA 39, the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his sentence. That application was granted and the matter was referred to the Court of Criminal Appeal as a fresh appeal.

  • Whether the Court of Criminal Appeal's earlier sentencing judgment contained a Muldrock error (that is, erroneous treatment of the standard non-parole period as a primary or determinative factor).
  • Whether the sentencing judge erred in finding that the appellant was on conditional liberty (bail) at the time of the offending.
  • Whether the sentencing judge erred in assessing the evidence of the appellant's mental illness and its connection to the offending.
  • Whether the location of the offending (premises previously shared by the appellant and the victim) constituted an aggravating factor.
  • Whether, having identified errors, the Court should exercise its sentencing discretion afresh and impose a lesser sentence.
  • Whether the original sentence was manifestly excessive.

Decision

The Court found error was established on three grounds. First, the earlier Court of Criminal Appeal judgment contained a Muldrock error, meaning it had treated the standard non-parole period in an impermissible way. Second, the sentencing judge erred in finding that the appellant was on bail at the time of the offending, when he was not on conditional liberty. Third, the sentencing judge erred in assessing the psychiatric evidence concerning the appellant's mental illness and its causal connection to the offending.

The Court did not accept that the location of the offending, in the premises the appellant had previously shared with the victim, constituted a separate aggravating factor. The other grounds of appeal, including manifest excess, also failed.

Despite identifying errors on three grounds, all three judges exercised the sentencing discretion afresh, as required by Kentwell v The Queen [2014] HCA 37, and unanimously concluded that no lesser sentence was warranted in law. The court weighed the objective seriousness of the offending, the two statutory guideposts (the 20-year maximum and the 10-year standard non-parole period), the appellant's mental and physical condition, the conditions of custody, and the absence of remorse.

Schmidt J added that the sentence imposed at first instance was in fact lenient, given the gravity of the overall offending. Her Honour noted that the causal connection between the appellant's mental condition and the offending ameliorated the role of general deterrence, but that specific deterrence remained relevant given his lack of contrition. The total sentence of 12 years and 3 months was, in all the circumstances, held to be appropriate.

Orders Made

The provided orders section addresses procedural matters concerning the scope of the appeal arising from the Review Act referral, rather than final sentencing orders. The dispositive order of the Court was:

  • The appeal is dismissed.

Key Takeaways

  • Even where multiple sentencing errors are established on appeal, the Court of Criminal Appeal may decline to impose a lesser sentence if, after exercising its discretion afresh across all relevant factors, the original sentence remains appropriate.

  • A causal connection between an offender's mental illness and the commission of offences is a relevant factor that can reduce the weight given to general deterrence in the sentencing exercise, though this does not automatically result in a lighter sentence.

  • Under the approach confirmed in Kentwell v The Queen [2014] HCA 37, once error is detected the appellate court must exercise the sentencing discretion afresh, taking into account all circumstances including post-sentencing developments.

  • Consistent with Louizos v R [2014] NSWCCA 242, an appellant whose matter is referred to the Court of Criminal Appeal following a Review Act inquiry is not confined to the grounds identified in the original referral and may raise additional errors, without needing separate leave, to be assessed as if on a standard appeal.

  • Schmidt J's observation that the sentence was lenient rather than excessive illustrates that the two statutory guideposts, the maximum penalty and the standard non-parole period, remain significant yardsticks in the sentencing exercise for serious sexual offences, even where individual factors (such as mental illness) operate to reduce the sentence below those benchmarks.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 117, 195(1)(a)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Key Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v The Queen [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357
- Louizos v R [2014] NSWCCA 242
- Monteiro v R [2011] NSWCCA 113
- Application by Simon Monteiro pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 710
- R v Engert (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1