R v Justin Monfries (No 3) - [2011] ACTSC 210

R v JUSTIN MONFRIES (No 3)
[2011] ACTSC 210 (9 December 2011)

Bail Act 1992 (ACT), ss 9D, 22
Crimes (Sentencing) Act 2005 (ACT)

EX TEMPORE JUDGMENT

No. SCC 435 of 2008
No. SCC 201 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 9 December 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCC 435 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 201 of 2011

R

v

JUSTIN MONFRIES

ORDER

Judge:  Refshauge J
Date:  9 December 2011
Place:  Canberra

THE COURT ORDERS THAT:

Justin Monfries be granted bail on the same conditions as his previous bail undertaking.

Earlier today, I have found that Mr Monfries has breached a condition of his bail. It is a less serious condition of his bail than some of the others, but in another respect it is a more serious condition because it is the method by which the court assures itself that a significant condition, namely the curfew, is being complied with and, of course, compliance is important.
That is important because in the absence of some method by which compliance can be assured, the conditions can be flouted and, if they are flouted, then as Mr A Williamson, who appears for the prosecution, rightly says, the trust that the court imposes in granting bail to ensure that the grant of bail achieves the purposes of bail, as reflected in s 22 of the Bail Act 1992 (ACT), can be diminished.
There are three matters that are of concern here. The first is that Mr Monfries has breached his bail on a number of occasions. I have outlined those in my earlier reasons, although I have not identified the reasons in each case, although the reasons are obviously not so significant that they justify the revocation of bail. In that sense, the continuing breach of bail makes, to some extent, what is a less serious breach of bail somewhat more serious.
It is easy, at one level, to look at the breach and assess that in isolation and say it does not justify the revocation of bail, but the continued breaches do elevate what otherwise might be a less serious breach into something somewhat more serious because of the need to ensure that the objectives of bail, as set out in s 22, are ultimately met.
The second matter is that there has been a breach of the objective not to commit further offences, namely a quite serious breach of an attempt to obtain property by deception; a breach which has led to a serious charge being laid, a serious charge, in respect of which Mr Monfries has been committed for trial at this stage to this court.
It has been properly and frankly conceded by Mr M Lalor, who appears for Mr Monfries, that that matter is one in which there is a strong prosecution case and I note that the co-offender, who is Mr Monfries’ girlfriend, Ms Warrack, has pleaded guilty and been dealt with in the Magistrates Court. That matter has been dealt with there by way of a Good Behaviour Order with a community service condition and that is some measure of the seriousness of the offence, although of course a sentence takes into account subjective elements and in Ms Warrack’s case, as I understand it, at least so far as her prior criminal record is concerned, it is nowhere near as serious as that of Mr Monfries.
That also has the effect that it raises the question of s 9D of the Bail Act 1992 (ACT), which requires special and exceptional circumstances to be found by the court before bail can be granted and, although this is in a sense a continuation of a consideration of bail, the fact that I have revoked the bail and required Mr Monfries to make an application for bail brings into play s 9D and I must look at that and deal with that on its face.
The third matter is that for various reasons, for which the court itself cannot be ultimately held to be unconnected, Mr Monfries has been involved with these matters for now nearly four years, the first offence alleged against him having been the subject of a summons issued in 2007 and, during that period of time, while there have been some further offences, they are in the nature of what might be referred as net widening offences. That does not make them less serious, but it means that the court needs to have regard to how they fit into the overall picture.
The fact that his matters have not been brought to a head is of significance and of course, as time goes on, the risk of breaches in circumstances where Mr Monfries is someone who faces significant intellectual challenges, is not easy to manage. Mr Lalor described the process of something in the order of case management and there is some attraction to that description, but if that is a fair description, then I have to say that this exercise has been a poor example of case management, because it really has not brought the matters to a head and they need to be brought to a head.
On the one hand, at the end of the day, we have the fact that there are significant indicators that Mr Monfries is at risk of re-entering the criminal justice system from time to time. Mr Williamson has rightly pointed to his prior criminal record and it is true that a prior record is an indicator, and not an unreasonable indicator, on which the court is entitled to rely, to say that further offences are likely to be committed.
Secondly, there is an expert report from Dr George, which I have no doubt is not inconsistent in any event with pre-sentence reports, which suggest that Mr Monfries is at a risk, indeed Dr George says a “high risk” of recidivism.
On the other hand, there is a substantial period of bail where, despite breaches, there is only one, albeit very serious, offence that has been committed in something of the order of more than two years, during which Mr Monfries has been on bail. The predictors of recidivism therefore have to be evaluated against the actuality. The actuality is that there is one offence in that period of time, a serious offence, which has been committed.
In my view, that does not show that the high risk described by Dr George was an accurate predictor. There is an example of recidivism, but over a relatively long period of time and indeed, more than the period of time that is usually regarded by criminologists, namely two years, as the appropriate assessment for recidivism.
The court itself, as I have indicated, is not entirely out of the picture in this, in that the matters involving Mr Monfries should have been, and should now be, brought to a head as soon as possible. The report that the court was awaiting has been provided. It has been provided to the parties and unless I hear any submissions, I shall assume that no further submissions are to be made on that and proceed with finalising the judgment, which is in the course of preparation at the very moment and during the preparation of which the report of Dr George was discovered when I investigated the file. That needs to be dealt with and to be dealt with promptly.
Mr Williamson properly says that bail is not a matter of punitive exercise of power by the courts. While that is true, the Crimes (Sentencing) Act 2005 (ACT) requires any period of pre-sentence custody to be taken into account and the court consider how to deal with that pre-sentence custody in relation to any period of imprisonment and that, almost schizophrenic, tension between the custodial protection that refusal of bail grants to the community and the punitive aspect, which must be accepted in relation to sentence where pre-sentence custody is taken into account, is one that cannot be completely ignored by the court when considering the issue of bail.
It is also true, as Mr Lalor has indicated, that the lengthy period of imprisonment that Mr Monfries has already suffered as a result of refusals of bail would be taken into account in sentencing and, although it is by no means possible for a court to be certain about that, it also perhaps indicates that any further period of imprisonment may not be warranted.
In saying that, I do not say that that is an inevitable outcome, nor do I say that it takes into account the further offending of the serious attempt to obtain property by deception, for which Mr Monfries must be dealt with if there is a conviction. I say that because at the moment there is a committal for trial and that is important.
In relation to that matter, I note that if there was a trial to be listed today, it would be heard in the third sittings of the court in 2013 and that there is no doubt in my mind that a period of incarceration, even between now and 2013, would be almost certain to exceed the period of imprisonment that Mr Monfries is likely to receive and have actually to serve, even for the totality of the offences for which he is now facing, having regard to the period of imprisonment that he has already served.
This is not an easy matter, because it is true that if the courts do not accept the responsibility to enforce the conditions that they impose, then the conditions will be seen to be able to be flouted and ignored and the reason for imposing those conditions will disappear.
On the other hand, I am minded of the nature of the breach, the fact that despite its intent, namely to prevent further re-offending, no offending has been suggested or alleged in relation to the breach or even the circumstances under which the breach occurred. I am mindful of the circumstances that these matters have not been brought to a head and there is a risk of the court, by delaying further, to widen the capacity for intervention in Mr Monfries’ life in circumstances where preventative detention is not available once he has been sentenced and served any proper sentence that is to be imposed for the offences for which he is to be dealt with.
In the circumstances, I am satisfied that bail should be granted to Mr Monfries on this occasion. I consider that the period of crime-free bail that he has enjoyed, that the nature of the breach which has caused the revocation of his bail, the period of time during which he has had the stress and uncertainty of the future of these proceedings which is different from simply awaiting trial but is an uncertainty as to the way in which he will be dealt with, and the progress that he has made in addressing a number of the issues of challenge to him and his willingness to address those, taken together, although not singly, would amount to special and exceptional circumstances, having regard to his personal situation, as outlined in the medical and psychiatric reports to which I have had regard in the matter of his fitness to plead.
Therefore, I grant Mr Monfries bail on the same terms and conditions as before.
[His Honour then spoke directly to Mr Monfries as follows]:
Mr Monfries, I have every sympathy for your position that you are going day by day and not knowing what is going to happen next. That has got to be brought to an end and I will do so, so far as I am concerned, as quickly as I humanly can. The fact is that with one huge blemish, and that is the cheque matter, you are making some progress and I hope that can continue.
I am not going to say this is your last chance, but chances do not come very often. You really have to be sensible about these things and you will not be taken into custody if you do the right thing. There is no reason for you to fear the police if you do the right thing and even if the police overstep the mark for some reason and sometimes they do inadvertently, then you will come back to court and the court will deal with you fairly.
That fairness can mean that you go back to jail in certain circumstances, but as you now know, you have put the community at risk when you commit offences and that means having allegations of committing further offences, getting into cars which are not yours and driving when you should not be driving and so on.
I think you are making some progress. There is a long way to go. If you can work with this agency, Weigelli, then that might give you some possibility of going further, but my patience is not inexhaustible and what Mr Williamson says is right, I have got to protect the community and if you are going to abuse the trust that you have got, then I will have to protect the community and I will do so. At the moment I do not see that the community is at special risk, but that is dependent entirely upon your ability to do the right thing and I hope you can do so.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Dated: 3 January 2012

Counsel for the Crown:  Mr A Williamson
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr M Lalor
Solicitor for the accused:  Aboriginal Legal Service (ACT/NSW)
Date of hearing:  7 and 9 December 2011
Date of judgment:  9 December 2011