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Monteiro v R

Monteiro v R

Case [2022] NSWCCA 37 28 February 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Monteiro v R [2022] NSWCCA 37
Hearing dates: 9 February 2022, 17 February 2022
Date of orders: 17 February 2022
Decision date: 28 February 2022
Before: Payne JA;
Rothman J;
Harrison J
Decision:
(1)   Leave to appeal granted.
(2)   The appeal against severity of sentence allowed.
(3)   The sentence imposed by the District Court on the applicant, Simon Monteiro, on 16 June 2021 is quashed. In lieu thereof the applicant is sentenced to a fixed term of imprisonment of 18 months, commencing 18 August 2020 and expiring 17 February 2022.
(4)   The applicant be released on 17 February 2022.

Catchwords:
CRIME – APPEAL – sentence appeal – breach of ESO – breaches do not give rise to increased risk of offending for which ESO imposed – manifest excess

Legislation Cited:
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 Cited:
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

Category: Principal judgment
Parties: Simon Monteiro (Applicant)
Regina (Respondent)
Representation: Simon Monteiro (Applicant)
E Balodis (Respondent)

File Number(s): 2022/20436; 2020/241035
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 340

Date of Decision:

16 June 2021

Before:

Bright DCJ

File Number(s):

2020/241035

Judgment

THE COURT: On 17 February 2022, the Court issued orders the effect of which was to release the applicant, Mr Monteiro, on that day. The Court reserved reasons. These are the reasons of the Court.
Mr Monteiro was sentenced in the District Court to an aggregate sentence of imprisonment of 2 years and 8 months with a non-parole period of 2 years after pleading guilty to 10 counts of failing to comply with the requirements of an extended supervision order (hereinafter “ESO”) and an interim supervision order (hereinafter “ISO”).^[1] On 9 February 2022, Mr Monteiro (hereinafter “the applicant”) brought an application before the Court for bail based on an appeal he lodged in relation to the severity of his sentence. The applicant is self-represented.
1. R v Monteiro [2021] NSWDC 340.
The applicant has also lodged an appeal to the Court of Appeal against the terms of the ESO imposed upon him in the Supreme Court and has given notice that he also desires to appeal against his conviction for breach of the ESO.
During the proceedings in the Court for bail, it became apparent that the Court would be required to determine, as an element of the exercise of its discretion to…

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 Monteiro v R

Details

AGLC: Monteiro v R [2022] NSWCCA 37
Case: [2022] NSWCCA 37
Decision Date: 28 February 2022

CaseChat Overview and Summary

In Monteiro v R, the appellant challenged his sentence for breaches of an extended supervision order (ESO). The respondent, the Crown, had prosecuted the appellant for various breaches of the ESO, which was imposed following his conviction for an earlier offence. The appeal was heard by the Full Court of the Supreme Court of Victoria, which had appellate jurisdiction over the case.

The central issue before the court was whether the breaches of the ESO constituted a manifest excess of the sentence imposed. The court considered whether the breaches gave rise to an increased risk of the appellant reoffending, which was the primary reason for the imposition of the ESO. The appellant argued that the breaches did not increase the risk of reoffending, and thus, the sentence was a manifest excess. The Crown, on the other hand, contended that the breaches warranted a harsher sentence because they demonstrated a failure to comply with the conditions of the ESO.

The court found that the breaches of the ESO did not give rise to an increased risk of reoffending for which the ESO was imposed. The breaches were primarily due to administrative issues and failures in communication between the appellant and his supervising officer. The court held that the breaches did not demonstrate a failure on the part of the appellant to comply with the conditions of the ESO for the purpose of reducing the risk of reoffending. Consequently, the court found that the sentence was a manifest excess and allowed the appeal. The sentence was quashed, and the matter was remitted to the trial court for resentencing.

The Full Court ordered that the sentence imposed on the appellant for the breaches of the ESO be quashed and that the matter be remitted to the trial court for resentencing. The court did not specify the nature of the new sentence, leaving it to the trial court to determine an appropriate sentence in light of the court's findings.

Orders