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District Court 16 June 2021

R v Monteiro

[2021] NSWDC 340

Public order & justice offences

Citation: R v Monteiro [2021] NSWDC 340
Court: District Court of New South Wales
Date: 16 June 2021
Judge: Bright DCJ

Background

The offender, a 54-year-old man, had been sentenced in 2009 to 11 years imprisonment for aggravated sexual assault, among other offences. His full sentence expired in April 2020. In the days before that expiry, the Supreme Court placed him on an interim supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW), which was later replaced by a five-year extended supervision order commencing 6 July 2020.

The offender repeatedly failed to comply with both the interim and extended supervision orders. He appeared before the District Court for sentence on eight counts of non-compliance, together with three further offences dealt with by certificate from the Local Court, totalling eleven offences.

He had been held in custody on a bail-refused basis since 18 August 2020, and that date was used as the commencement date for the sentence imposed.

  • What sentences were appropriate for eleven offences of failing to comply with supervision orders under s 12 of the Crimes (High Risk Offenders) Act 2006?
  • How should the applicable guilty plea discounts be applied, given that pleas were entered at different stages and in different courts?
  • What total aggregate sentence properly reflected the principles of accumulation, concurrency, and totality?
  • Whether the sentence, or any part of it, should be served by way of an intensive correction order rather than full-time custody.
  • Whether special circumstances existed to justify a longer-than-standard parole period.

Decision

Bright DCJ sentenced the offender on eight counts on indictment, to which he pleaded guilty on 7 May 2021, attracting a 10% guilty plea discount. The three offences brought up from the Local Court by s 166 certificate attracted a 25% discount, reflecting the earlier stage at which those pleas were entered. The Court worked through indicative sentences for each count before considering the aggregate.

The Court referred to the psychiatric evidence from the extended supervision order proceedings, in which two forensic psychiatrists assessed the offender as posing a well-above-average risk of reoffending. Both experts considered that risk unlikely to change in the short to medium term. The offender's diagnosed severe personality disorders, psychopathic traits, lack of insight, and ongoing refusal to engage with rehabilitation were identified as central concerns.

The Court considered whether an intensive correction order was appropriate, as required under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which places community safety as the paramount consideration. Bright DCJ was not satisfied that an intensive correction order would more effectively address the risk of reoffending, particularly given the offender's consistent refusal to engage in any rehabilitation. The Court further held that only a full-time custodial sentence adequately served the purposes of specific and general deterrence.

The Court declined to find special circumstances, meaning the standard ratio between non-parole period and total sentence was maintained.

Orders Made

  • Convicted on all counts.
  • Total aggregate sentence of 2 years and 8 months, backdated to 18 August 2020, expiring 17 April 2023.
  • Non-parole period of 2 years, expiring 17 August 2022, with release to parole directed on that date.
  • Special circumstances not found.
  • Intensive correction order declined.

Key Takeaways

  • The District Court confirmed that repeated failures to comply with interim and extended supervision orders under s 12 of the Crimes (High Risk Offenders) Act 2006 are capable of attracting full-time custodial sentences, with the maximum for each offence being 5 years imprisonment.
  • Different guilty plea discounts applied depending on the court and stage at which the plea was entered: 10% for pleas at the District Court after committal, and 25% for pleas entered in the Local Court at an earlier stage.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when assessing an intensive correction order; where an offender has consistently refused rehabilitation, full-time custody may be the only sentencing option consistent with deterrence objectives.
  • Psychiatric assessments made in related Supreme Court proceedings formed part of the factual matrix on sentence, illustrating how findings in high risk offender order proceedings can carry forward into subsequent sentencing exercises.
  • Refusing to engage with rehabilitation programs is a factor that weighs against alternative sentencing arrangements, reinforcing the rehabilitative objects stated in s 3 of the Crimes (High Risk Offenders) Act 2006.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 117, 195(1A)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5I, 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37, 66, 166

Cases:
- State of New South Wales v Monteiro (Final) [2020] NSWSC 881
- State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350
- State of New South Wales v McQuilton (Final) [2019] NSWSC 265
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1
- Imbornone v R [2017] NSWCCA 144
- R v Edwards (1996) 90 A Crim R 510