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Monteiro v R

Monteiro v R

Case [2011] NSWCCA 113 17 May 2011

Appeal

Criminal Liability

Sentencing

Conduct of Defence Counsel

Error in Judgment

Special Circumstances

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Monteiro v R; R v Monteiro [2011] NSWCCA 113
Hearing dates: 13 September 2010; 15 September 2010; 17 September 2010
Decision date: 17 May 2011
Before: Simpson J at 1; Hoeben J at 253; Price J at 254
Decision:
(1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted, appeal dismissed.
(3) Crown appeal dismissed.

Catchwords: CRIMINAL LAW - particular offences - offences against the person - sexual offences - aggravated sexual assault - s 61J Crimes Act 1900 - property offences - malicious damage - stealing
CRIMINAL LAW - appeal against conviction - trial by jury - unrepresented at hearing of appeal - unreasonable verdict - credibility of complainant - implausibility of account - fresh evidence - finding of guilt open on the evidence - appeal dismissed
CRIMINAL LAW - appeal against conviction - trial by jury - conduct of defence counsel - failure to comply with instructions - absence of cross-examination on particular matters - no evidence given by accused at trial - exercise of forensic judgment - no miscarriage of justice - appeal dismissed
CRIMINAL LAW - application for leave to appeal against sentence - applicant unrepresented - plea of guilty to property offences - aggravated sexual assault - finding of guilt following trial - offences related - numerous grounds - conditions of incarceration - mental illness - bias - failure to order sentences be served wholly concurrently - fresh evidence - error in finding no evidence of causal relationship between mental illness and sexual assault offence - error in finding offences committed while on conditional liberty - sentences within available range - no manifest excess - leave granted - appeal dismissed
CRIMINAL LAW - Crown appeal against sentence - s 5D Criminal Appeal Act 1912 - manifest inadequacy - special circumstances - degree of departure from standard non-parole period - conduct reaching the "cusp" of mid-range of seriousness - evidence of causal relationship between offences and mental illness - error in finding offences committed while on conditional liberty - errors favour applicant on appeal - finding of special circumstances - no manifest inadequacy
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Hili v The Queen [2010] HCA 45
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Birks (1990) 19 NSWLR 677
R v Ehrenburg (NSWCCA, 14 December 1990, unreported)
R v Engert (1995) 84 A Crim R 67
R v Gallagher [1986] HCA 26; 160 CLR 392
R v Hemsley [2004] NSWCCA 228
R v Kertebani; Kertebani v R [2010] NSWCCA 221
R v Smith [1987] 44 SASR 587
R v Way

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 [2011] NSWCCA 113
Case: [2011] NSWCCA 113
Decision Date: 17 May 2011

CaseChat Overview and Summary

The case of Monteiro v R involved an appeal against conviction and sentence by the applicant, who was convicted of aggravated sexual assault and malicious damage. The trial court found the applicant guilty of the offences after a jury trial. The applicant appealed against his conviction and sentence, arguing various grounds including the credibility of the complainant, the conduct of his defence counsel, and the appropriateness of his sentence. The case was heard in the High Court of Australia.

The legal issues in the appeal included whether the verdict was unreasonable, whether the defence counsel's conduct amounted to a miscarriage of justice, and whether the sentence was manifestly inadequate. The court had to consider the credibility of the complainant's evidence and whether the jury could reasonably have found the applicant guilty based on the evidence presented. The court also examined the conduct of the defence counsel and whether it affected the outcome of the trial. Finally, the court assessed the sentence imposed, including whether it was within the appropriate range and whether special circumstances warranted a departure from the standard non-parole period.

The court found that the jury's verdict was not unreasonable and that the defence counsel's conduct did not amount to a miscarriage of justice. The court held that the verdict was open on the evidence and that the defence counsel's exercise of forensic judgment did not result in a miscarriage of justice. Regarding the sentence, the court found that while there were errors in the trial court's reasoning, the sentences imposed were within the appropriate range and did not represent a manifest excess. The court concluded that the appeal against conviction and sentence should be dismissed.

In summary, the High Court dismissed the applicant's appeal against conviction and sentence, upholding the trial court's findings and the sentences imposed. The court found that the jury's verdict was reasonable, the defence counsel's conduct did not prejudice the applicant, and the sentences were appropriate. The court also found that the special circumstances did not warrant a significant departure from the standard non-parole period, and thus the sentence was not manifestly inadequate.

Orders