Adam Monaghan v The Queen - [2014] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0193

ADAM MONAGHAN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 May 2014
DATE OF JUDGMENT	1 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 82
JUDGMENT APPEALED FROM	DPP v Monaghan (Unreported, County Court of Victoria, Judge Tinney, 3 February 2011

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CRIMINAL LAW – Sentence – Armed robbery and other offences – Sentenced to five years and nine months’ imprisonment with a non-parole period of three years and nine months – Fresh evidence of impaired mental functioning not available to sentencing judge – Condition would make imprisonment more burdensome – Appeal allowed – Resentenced to five years’ imprisonment with a non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M H Thomas	Grigor Lawyers
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the benefit of reading the judgment of Priest JA in draft form. For the reasons he has given, I agree that the application for leave to appeal against sentence should be granted, the appeal allowed and the appellant re-sentenced in the manner proposed.

PRIEST JA:

Introduction

The applicant was born on 6 July 1981 and is now aged 32 years.

From the age of 17 the applicant has amassed some 170 convictions from 20 court appearances, reflecting a wide variety of offending including convictions for resisting police; assaulting police; other assault and injury offences; weapons offences; drug offences; gaol offences; driving offences; stating a false name; failing to answer bail; burglary; aggravated burglary; forgery; going equipped to steal; obtaining property by deception; handling stolen goods; damaging property; possessing the proceeds of crime; car theft; making threats to kill; robbery; and armed robbery. He has been incarcerated multiple times, commencing with detention in a youth training centre in 1998 and continuing through the years with sentences of youth training and many sentences of imprisonment. In light of his record, it would be apt to describe him as incorrigible.

On 2 February 2011, the applicant pleaded guilty in the County Court to two charges of theft, one charge of burglary, one charge of armed robbery and one charge of assaulting a police officer. Following a plea, on 3 February 2011 he was sentenced according to the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1 Theft [Crimes Act 1958, s 74(1)] 10 years 12 months 3 months

2 Burglary [Crimes Act 1958, s 76(1)] 10 years 14 months 3 months

3 Theft [Crimes Act 1958, s 74(1)] 10 years 8 months Nil

4

Armed Robbery [Crimes Act 1958, s 75A(1)]

25 years

4 years and 9 months

Base

5

Assault police officer in the due execution of his duty [Crimes Act 1958, s 31(1)(b)]

5 years

12 months

6 months

Total Effective Sentence

5 years and 9 months’ imprisonment

Non-Parole Period

3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam Monaghan v The Queen

Details

AGLC: Monaghan v The Queen [2014] VSCA 82
Case: [2014] VSCA 82
Decision Date: 1 May 2014

CaseChat Overview and Summary

The appellant, Adam Monaghan, was convicted of armed robbery and other related offences and was sentenced to five years and nine months’ imprisonment with a non-parole period of three years and nine months. Monaghan appealed against his sentence, arguing that the sentencing judge was not aware of his impaired mental functioning at the time of sentencing, which would have resulted in a different sentence. The appeal was heard in the High Court of Australia.

The central legal issue in this case was whether the fresh evidence of Monaghan's impaired mental functioning, which was not available to the sentencing judge, warranted a different sentence. The court needed to determine whether the evidence would have affected the sentence and, if so, what the appropriate sentence would be. The court also needed to consider whether the condition would make imprisonment more burdensome for Monaghan.

The High Court allowed the appeal and set aside the original sentence. The court found that the fresh evidence of Monaghan's impaired mental functioning was significant and would have affected the sentence. The court noted that the evidence showed that Monaghan had a number of cognitive impairments, including difficulties with attention, memory, and executive functioning, which would make imprisonment more burdensome. The court also found that the evidence was relevant and reliable. The court resentenced Monaghan to five years’ imprisonment with a non-parole period of three years and six months.

The High Court ordered that Monaghan be resentenced to five years’ imprisonment with a non-parole period of three years and six months. The court noted that the fresh evidence of Monaghan's impaired mental functioning was significant and would have affected the original sentence. The court found that the evidence showed that Monaghan had a number of cognitive impairments, which would make imprisonment more burdensome. The court considered the evidence to be relevant and reliable and concluded that it warranted a different sentence.

Orders