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Monteiro v R

Monteiro v R

Case [2014] NSWCCA 277 26 November 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Monteiro v R [2014] NSWCCA 277
Hearing dates: 10 October 2014
Decision date: 26 November 2014
Before: Gleeson JA at [1]
Schmidt J at [2]
Bellew J at [5]
Decision:
The appeal is dismissed.

Catchwords:
APPEAL - Muldrock error - error in finding that the appellant was on bail at the time of the offending - error in assessing evidence of appellant's mental illness - necessity to exercise sentencing discretion afresh

APPEAL - sexual offending - where relationship between appellant and the victim had ended - where offending occurred in premises previously shared by the appellant and the victim - whether this was an aggravating factor
APPEAL - sentence - sexual offending - whether some other sentence was warranted in law and should have been passed - relevance of appellant's mental and physical illness - conditions of custody - seriousness of offending - no other sentence warranted - sentence not manifestly excessive - appeal dismissed
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Application by Simon Monteiro pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 710
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DS v R [2012] NSWCCA 159; (2012) 221 A Crim R 235
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Ingham v R [2011] NSWCCA 88
Kentwell v The Queen [2014] HCA 37
Louizos v R [2014] NSWCCA 242
Markarian v The Queen (2005) 228 CLR 357
Melbom v R [2013] NSWCCA 210
Monteiro v R [2011] NSWCCA 113
Montero v R [2013] NSWCCA 214
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
NM v R [2012] NSWCCA 215
Norman v R [2012] NSWCCA 230
R v BIP [2011] NSWCCA 224
R v Comert [2004] NSWCCA 125
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Engert (1995) 84 A Crim R 67
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Kier [2004] NSWCCA 106
R v L (NSWCCA unreported 17 June 1996)
R v Tuuta [2014] NSWCCA 40
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Simon Monteiro - Appellant
Regina - Respondent
Representation: Counsel:
Ms R Burgess - Appellant
Ms V Lidyard - Respondent
Solicitors:
S O'Connor, Legal Aid NSW - Appellant
J Pheils, Solicitor for Public Prosecutions - Respondent

File Number(s): 2008/8845012
Publication restriction: Nil

Judgment

GLEESON JA: I agree with the reasons and conclusion of Bellew J that error has been established in the Court of Criminal Appeal's earlier…

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 [2014] NSWCCA 277
Case: [2014] NSWCCA 277
Decision Date: 26 November 2014

CaseChat Overview and Summary

The case of Monteiro v R involved the appellant, who was convicted of sexual offences, appealing against his sentence. The appeal was heard by the court, which was required to consider whether the primary judge made any errors in the sentencing process. The court examined if there was a mistake in determining that the appellant was on bail at the time of the offending, as well as whether the evidence of the appellant's mental illness was correctly assessed. The court was also required to consider if the sentencing judge had properly exercised their discretion, taking into account the aggravating factors such as the location of the offending and the relationship between the appellant and the victim.

The legal issues before the court involved the proper application of the sentencing principles in relation to the appellant's bail status, mental illness, and the relevance of the circumstances surrounding the offending. The court had to determine if the sentencing judge's consideration of these factors was sufficient and whether the sentence imposed was appropriate. The court also needed to consider if the sentence was manifestly excessive, and if there were any other sentencing options that should have been considered.

The court found that there was an error in determining that the appellant was on bail at the time of the offending, but this did not affect the overall sentence. The court held that the sentencing judge had not erred in assessing the evidence of the appellant's mental illness, and that the sentence imposed was not manifestly excessive. The court further held that the location of the offending and the relationship with the victim did not warrant a different sentence. Given the seriousness of the offending and the appellant's mental and physical illnesses, the court found that no other sentence was warranted in law.

The appeal was ultimately dismissed, and the original sentence was upheld. The court confirmed that the sentence was not manifestly excessive and that the sentencing judge had exercised their discretion appropriately in considering all relevant factors.

Orders