R v Monaghan (No 2) - [2021] ACTSC 358

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Monaghan (No 2)
Citation:	[2021] ACTSC 358
Hearing Date:	24 August 2021
DecisionDate:	27 August 2021
Before:	Refshauge AJ
Decision:	1. The Drug and Alcohol Treatment Order made on 16 June 2021 is cancelled. 2. The convictions entered and the sentences imposed on 16 June 2021 for the offences to which Jonathan Monaghan pleaded guilty in these proceedings are confirmed, other than the sentences for the offence of dangerous driving and the offence of being an unlicensed driver, for which a Good Behaviour Order was imposed. 3. The sentence of three years and six months that was then set, is now imposed. 4. The Court declares that under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT), that a total sentence of three years and 6 months commencing on 18 December 2020 and ending on 17 June 2024 is to be imposed. 5. A non‑parole period of 17 months is set, to commence on 18 December 2020 and end on 17 May 2022. 6. The Court recommends to the Sentence Administration Board under s 67 of the Crimes (Sentence Administration) Act 2005 (ACT) that, when released on parole, Mr Monaghan be required as a condition of that parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if a program is available to him.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – Cancellation of Order – Relevant Factors – Rehabilitation – Childhood Disadvantage – Imposition of Original Sentence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 65, 66, 80O, 80W, 80ZE Crimes (Sentence Administration) Act 2005 ss 67, 82C
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Douglas v The Queen [1995] 56 FCR 465 R v Blackburn (No 3) [2021] ACTSC 337 R v Charles (No 2) [2020] ACTSC 366 R v Dowling (No 3) [2021] ACTSC 210 R v JM [2014] ACTSC 380 R v Massey (No 4) [2021] ACTSC 211 R v Monaghan [2015] ACTSC 153 R v Tonna (No 2) [2020] ACTSC 362 Saga v Reid [2010] ACTSC 59
Parties:	Director of Public Prosecutions Jonathan Monaghan ( Offender)
Representation:	Counsel C Muthurajah ( Director of Public Prosecutions) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender)
File Number(s):	SCC 50 of 2020 SCC 76 of 2021 SCC 77 of 2021

REFSHAUGE AJ:

I have often made the observation that rehabilitation from dependency on alcohol and other drugs is hard, and that failure is inevitable from time to time. That, of course, does not mean that such failures can be excused. Nor does it mean that they have to prevent a person with such a dependency from continuing to rehabilitate, or from trying again.

The Drug and Alcohol Sentencing List of the ACT Supreme Court provides an opportunity for rehabilitation…

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 R v Monaghan (No 2)

Details

AGLC: R v Monaghan (No 2) [2021] ACTSC 358
Case: [2021] ACTSC 358
Decision Date

CaseChat Overview and Summary

In the case of R v Monaghan (No 2), the Supreme Court of the Australian Capital Territory was required to determine whether to cancel a Drug and Alcohol Treatment Order made for Jonathan Monaghan, who had pleaded guilty to serious offences, including aggravated robbery, dishonestly driving a motor vehicle without the owner's consent, failing to stop when requested by police, dangerous driving, and driving while unlicensed. The court considered whether the Treatment Order should be cancelled on the grounds that Monaghan was unwilling or unlikely to comply with a condition of the Order, that the continuation of the treatment and supervision part of the Order would likely not achieve the objects of the Order, and that Monaghan posed an unacceptable risk to the safety or welfare of a person. The court found that all grounds for cancellation had been made out on the balance of probabilities, and, while Monaghan's subjective circumstances were accepted as relevant, they did not justify the continuation of the Treatment Order. The court cancelled the Treatment Order and imposed the original sentence of three years and six months imprisonment, with a non-parole period of 17 months. The court also recommended that Monaghan be required to undertake a substantial period of supervised or mandated drug rehabilitation upon release on parole.

Orders