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Court of Criminal Appeal 28 February 2022

Monteiro v R

[2022] NSWCCA 37

Public order & justice offences
CRIME APPEAL SENTENCE APPEAL BREACH OF ESO MANIFEST EXCESS

Citation: Monteiro v R [2022] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 28 February 2022
Judges: Payne JA; Rothman J; Harrison J

Background

The appellant was subject to an extended supervision order (ESO) and an interim supervision order (ISO) imposed by the Supreme Court under the Crimes (High Risk Offenders) Act 2006 (NSW). That legislation authorises supervision orders for high-risk sex offenders and high-risk violent offenders where a court is satisfied, to a high degree of probability, that the person poses an unacceptable risk of reoffending.

The appellant pleaded guilty in the District Court to ten counts of failing to comply with the requirements of those orders. The breaches included using undisclosed electronic devices, operating under multiple false names, setting up unauthorised email addresses and social media accounts, and running a small business using an alternate identity. The District Court sentenced him to an aggregate term of 2 years and 8 months' imprisonment with a non-parole period of 2 years.

The appellant, who was self-represented, applied to the Court of Criminal Appeal for bail and pressed a severity appeal. He also sought, during proceedings, to collaterally attack the validity of the ESO itself and the appropriateness of his guilty pleas. The Court had to untangle the jurisdictional boundaries before addressing the sentence.

  • Whether the sentence imposed for the ESO and ISO breaches was manifestly excessive
  • Whether the Court of Criminal Appeal had jurisdiction to entertain a collateral attack on the validity of the Supreme Court's ESO
  • Whether the conditions of the ESO could, as a matter of law, give rise to valid breach charges on the agreed facts
  • How the objects of the Crimes (High Risk Offenders) Act 2006 (NSW) should inform the sentencing exercise for breach offences

Decision

The Court drew a clear jurisdictional line at the outset. An appeal against the imposition of an ESO lies to the Court of Appeal, not the Court of Criminal Appeal. The latter Court therefore refused to entertain the appellant's collateral challenges to the validity of the ESO or its conditions, and it did not deal with the conviction appeal. An order of a superior court of record remains valid and must be obeyed until it is set aside.

On the sentence appeal, the Court found the aggregate sentence of 2 years and 8 months with a 2-year non-parole period was manifestly excessive. The Court's central reasoning was that the breaches, while serious, did not in themselves demonstrate an increased risk of the kind of offending that formed the basis for the original ESO. The ESO conditions exist to ameliorate an unacceptable risk of future serious offending; breaching those conditions, absent evidence connecting the breaches to that underlying risk, does not automatically warrant a sentence calibrated to that original risk level.

Applying the totality principle, the Court also took into account that parole conditions would be less restrictive than the ESO conditions the appellant would continue to face. On that basis, the Court considered a fixed term with no parole period was appropriate. The Court reduced the aggregate sentence to a fixed term of 18 months' imprisonment, commencing 18 August 2020 and expiring 17 February 2022, which meant the appellant was released on the day the orders were made.

Orders Made

  • Leave to appeal granted
  • Appeal against severity of sentence allowed
  • Sentence imposed by the District Court on 16 June 2021 quashed
  • In lieu thereof, the appellant sentenced to a fixed term of imprisonment of 18 months, commencing 18 August 2020 and expiring 17 February 2022
  • Appellant released on 17 February 2022

Key Takeaways

  • Breaches of an ESO do not, without more, establish an increased risk of the serious offending that justified the original order, and sentencing for those breaches should reflect that distinction.
  • A collateral attack on the validity of a Supreme Court ESO cannot be pursued in the Court of Criminal Appeal on a severity appeal. An appeal against the making of an ESO lies to the Court of Appeal.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), ESO conditions must be appropriate to address the risk of future offending of the kind that formed the basis for the order, but s 11 does not require a specific and demonstrated link to the offender's past conduct.
  • Applying the totality principle, a sentencing court may take into account that post-release parole conditions will be less onerous than the ESO conditions continuing to apply, making a fixed term without parole the appropriate outcome in some cases.
  • The Court of Criminal Appeal confirmed that an order of a superior court of record remains binding and must be obeyed until formally set aside, regardless of any pending challenge to its validity.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 22
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5C, 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 12
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [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; (2015) 249 A Crim R 65