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 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 from alcohol and drug dependency. This is done through a Drug and Alcohol Treatment Order (Treatment Order), under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The Treatment Order establishes a regime of rehabilitation, consolidation and reintegration, with the intention of encouraging and assisting the participants into embracing a drug and crime free lifestyle.
The regime it establishes is generally individualised to each participant and requires substantial community resources. Participants have committed serious crimes that would justify a sentence of imprisonment of between one and four years, but, which, apart from pre-sentence custody, they do not have to serve in custody, so long as they participate actively, conscientiously and fully in the Treatment Order regime.
This is a privilege, both in not having to serve the sentence of imprisonment, but also in having access to the resources available to address the drug and alcohol dependency.
When a participant fails to comply with the obligations under the Treatment Order regime, the Court has power to cancel the Treatment Order and impose the original sentence or resentence the participant. The Court may also, however, impose briefer sanctions, including short periods of custody, without cancelling the Treatment Order.
What action is taken if the Treatment Order regime has been breached is, of course, a matter of discretion. It is, however, a discretion to be exercised judicially, that is, not arbitrarily. It must take account of the seriousness of the reasons for and the circumstances of each breach, the likelihood that it is behaviour that will be repeated, an assessment of whether the participant is likely to commit genuinely to further rehabilitation, and any special matters relevant to the situation.
The Sentencing Act sets out factors that the Court is required to consider. These are, of course, set out in general terms, and the Court will assess the bases for the cancellation in the light of them. In doing so, it will show how they are to be addressed, and give some general guidance as to the way the discretion is to be exercised. These are set out in the Court's reasons, which are, of course, delivered publicly and published thereafter.
It is important to note that this is not because such reasons and guidance are some kind of legislative rule or inflexible standard. On the other hand, fairness and justice require a degree of consistency so that departures are justified on a rational and fair basis.
On 16 June 2021, the Court made a Treatment Order in respect of Jonathan Monaghan, who had pleaded guilty to very serious offences: aggravated robbery, dishonestly driving a motor vehicle without the owner's consent, failing to stop when requested by police, dangerous driving and driving whilst unlicensed. The Treatment Order was made for some, but not all, of these offences, for one was sufficiently served before sentence not to be included and the other was subject to a Good Behaviour Order.
The Treatment Order required Mr Monaghan, in the first instance, to participate in the residential drug rehabilitation program conducted by the Salvation Army by its facility, Canberra Recovery Services, at Fyshwick. Contrary to the rules of the facility, he used drugs and then also absconded from it. He did not, as required, report to ACT Corrective Services upon departure, and is alleged to have committed further offences.
As a result, the Crown has applied by Application in Proceedings to cancel Mr Monaghan's Treatment Order. In support of the Application, the Crown has filed an affidavit of Marina Lucero affirmed on 29 July 2021. No objection was taken to it being read. Ms Lucero was not cross-examined, and the contents, especially the annexures, which include the Status Reports received by the Court regularly during the course of the Treatment Order, were not challenged. The Crown further relied on the material presented in support of the original sentencing hearing, especially the Crown Tender Bundle, which included the Drug and Alcohol Treatment Assessments. Mr Monaghan relied on these also.
The background
On 24 December 2019, Mr Monaghan and two companions, after threatening a man and his companions with a knife, stole a wallet from the man who, with his two friends, was depositing some clothing in a charity bin at Hawker Shopping Centre. Mr Monaghan did, when the victim called out to do so, take the money from the wallet and drop the wallet itself.
On 6 January 2020, Mr Monaghan drove a motor vehicle which had earlier been stolen. When confronted by police in a police vehicle and told to stop the vehicle he was driving, he collided with the police vehicle, damaging it, and then drove away, again colliding with the police vehicle and, in a futile attempt to get away, also collided with another police vehicle. When arrested, Mr Monaghan was found to be an unlicensed driver.
He was remanded in custody on 6 January 2020 and, despite initially pleading not guilty, ultimately entered pleas of guilty to all the offences with which he had been charged, as noted above (at [6]) and, on 25 March 2021, was committed for sentence to this Court where, on 16 June 2021, he was sentenced and a Treatment Order was made.
A condition of the Treatment Order, as also noted above, was to undertake the residential drug rehabilitation program at Canberra Recovery Services. He entered the facility on that day and was directed to appear in Court for a review on 25 June 2021. A report of his progress dated 23 June 2021 indicated that he was settling in and engaging openly and willingly in group work.
The next day, however, he was noted to have dilated pupils, and disclosed that he had left the facility at 3:00 am earlier that morning, staying out until 5:00 am. It was also later ascertained that others had joined with him in that enterprise. He admitted to having consumed methamphetamine, as had the others.
He appeared in Court on 25 June 2021 and was warned about the breaches of the rules, in leaving the premises and using drugs, sanctioned with three points and directed to appear in Court on 2 July 2021. He again used drugs shortly after that and appeared in Court on 28 June 2021 when he was remanded in custody, as the suspension of the custodial part of the Treatment Order was provisionally cancelled. The suspension of the custodial part of the Treatment Order was reinstated on 6 July 2021, and Mr Monaghan returned to Canberra Recovery Services.
On 11 July 2021, however, he left the facility and did not return. He failed to report to ACT Corrective Services, though he did contact them, declining to advise his whereabouts or provide a phone number or address, and indicated no intention of reporting. On 13 July 2021, a warrant was issued for his arrest.
He was arrested on 26 July 2021. He was charged with further offences, namely dishonestly driving a motor vehicle without the owner's consent, failing to stop the motor vehicle when directed by police, aggravated dangerous driving, being an unlicensed driver, driving a motor vehicle with number plates not properly issued to the vehicle, and driving with a prescribed drug in his oral fluid.
These events followed from an incident where police on mobile patrol are alleged to have intercepted the vehicle that Mr Monaghan was driving in Yarralumla, the vehicle which had the previous day been stolen and the theft reported to police. Mr Monaghan, it is alleged, drove the stolen vehicle in breach of a number of road rules, including by driving through a full red light, driving on the incorrect side of the road and driving in excess of the speed limit.
The police are alleged to have pursued the vehicle until able successfully to deploy tyre deflation devices and finally, it is alleged, apprehended him. Police are alleged to have required him to undergo a drug screening test which is said to have resulted in a positive indication to a prescribed drug in his oral fluid.
Mr Monaghan was then arrested and remanded in custody. When the warrant this Court had issued, which was duly executed, was returned to this Court, Mr Monaghan was further remanded in custody as required, since he was in custody for the other offences. The treatment and supervision part of the Treatment Order was suspended, giving rise to the operation of s 82C of the Crimes (Sentence Administration) Act 2005 (ACT).
Since then, the Crown has indicated that further charges are to be laid against Mr Monaghan not directly arising out of the offences for which he was arrested on 26 July 2021, but for other offences committed around those dates. They include some serious offences.
The Court has not, however, been favoured with any facts of those offences, or an indication of the evidence for them. Accordingly, it does not appear that the Court should take them into account, other than noting that there may be other conduct of Mr Monaghan at that time which might result in further charges being laid.
The Crown indicated that application would be made to cancel the Treatment Order.
Application
On 5 April 2021, the Crown filed an Application in Proceedings seeking the cancellation of the Treatment Order. The application is made under s 80ZE(1) of the Sentencing Act, and relies on the following grounds:
(a) Mr Monaghan is unwilling or unlikely to comply with a condition of the Treatment Order (s 80ZE(1)(c) of the Sentencing Act);
(b) The continuation of the treatment and supervision part of the Treatment Order will likely not achieve the objects of the Order (s 80ZE(1)(d) of the Sentencing Act); and
(c) Mr Monaghan poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) of the Sentencing Act).
Such an Application, and the proper approach to it, has now been considered on a number of occasions and appears to be reasonably settled. In R v Massey (No 4) [2021] ACTSC 211 at [19]–[21], the Court summarised the position as follows:
One ground is sufficient to require the Court to consider cancelling the Treatment Order, but each ground should be considered. A ground must be proved on the balance of probabilities. Even if one ground is, or more, or all, of the grounds are, made out, the Court is not obliged to cancel the Treatment Order and retains a discretion. The Court should also consider whether it is appropriate to review the Treatment Order under s 80ZH of the Sentencing Act at the same time and, in particular, to decide whether an appropriate amendment to the Order under s 80ZH(4) of the Sentencing Act can be made that would adequately address the unsatisfactory circumstances.
Even if there is an appropriate amendment that could be made, such as admission to another residential drug rehabilitation facility, there may not be the resources available to give effect to the amendment and s 80S(c) of the Sentencing Act would justify a cancellation of the Treatment Order in that case: R v Tonna (No 2) at [70]-[73].
At the end of this consideration, the Court retains a discretion whether to cancel the Treatment Order. That a participant has performed unsatisfactorily does not mean that this behaviour will necessarily continue. Thus, where the grounds have been made out, but there is still some reasonable hope, based on a rational assessment of the situation, that the offender will rehabilitate, the Court may decline to cancel the Treatment Order and give the participant a further chance to complete it. Such further chances, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.
Consideration
Each of the grounds on which the Crown relies will now be considered.
Mr Monaghan has now, on three occasions, shown significant breaches of the Treatment Order. Principally, these showed that he has not been able to abstain, or was not committed to abstaining, from using drugs during the period.
In the first place, he made an unauthorised departure from the Canberra Recovery Services and consumed illicit drugs. On the second occasion, he used drugs again and may have distributed some, although there was no particular evidence of that. On the third occasion he left the facility and did not report to ACT Corrective Services, though he did make telephone contact and again used drugs, as shown by the positive result to drug testing in his oral fluid when arrested.
The first breach was able to be managed within the Treatment Order regime. There were some extenuating circumstances. He had not been long admitted to the residential rehabilitation facility. The well-known difficulty of sudden abstinence of a person who is dependent on illicit drugs, especially one with a long and entrenched dependency, as applies to Mr Monaghan, is likely to lead to temptation and it is human to succumb to temptation, though it should be resisted, and it is not to be approved. Further, there was, at the time, an unexpected influx of new admittees to the facility, many of whom knew each other and were all in the early stages of the Treatment Program. He was sanctioned, and reasonably severely, by the imposition of three points.
On the second occasion, he again lapsed into drug use. While understandable again for the same reason, it started to indicate a need for Mr Monaghan to show greater commitment and effort. Without effort and application by a participant, no success in rehabilitation will be achieved. Others have been able to do so. Nevertheless, given the fact that Mr Monaghan stayed to address the consequences and sought to continue the program, a severe sanction of a period of incarceration was imposed, and cancellation not pursued.
The third occasion, however, had elements of the earlier breaches, suggesting that Mr Monaghan was no longer actually committed to his rehabilitation, either voluntarily failed to engage with it, or was not wanting, or unable, to engage positively with it. Further, and significantly, his breaching was escalating, with him not merely leaving the facility but failing to return and to face the consequences and actually, it is alleged, committing further offences of the kind for which he was already being punished and also which he had earlier committed on a number of occasions. His failure to attend undermined the nature of the Treatment Order, and in particular the judicial supervision.
As the Court commented in R v Charles (No 2) [2020] ACTSC 366 at [36]:
There must, however, come a time when cooperation of the offender in the treatment enterprise has been so lacking that further attempts to try further rehabilitation are unlikely to succeed.
This does not mean that no further attempt should ever be made. Not only would that be inconsistent with what has been said earlier in Saga v Reid [2010] ACTSC 59 at [89], that failures are to be expected and do not necessarily bar further rehabilitation attempts, but also with the idea that changes in circumstances, including growing up and maturing, can justify being allowed further rehabilitation.
There must, however, as was there noted, be a rational basis for such attempts. Sometimes, persons with a drug dependency are simply not ready yet actually to commit and dedicate enough of themselves and their energy to rehabilitation. In effect, the time is not right. This appears to be the situation with Mr Monaghan. This ground is made out.
The second ground is related to the first ground: see R v Massey (No 4) at [30]. The first ground addresses the rehabilitation regime mandated by the Treatment Order. The second ground addresses the outcomes of such a regime which the Treatment Order is designed to achieve and, if successful, will achieve.
The objects are set out in s 80O of the Sentencing Act, and the relevant ones are as follows:
to—
(a) facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b) reduce the offender's dependency on alcohol or a controlled drug; and
(c) reduce the health risks associated with the offender's dependency on alcohol or controlled drugs; and
(d) assist with the offender's integration into the community.
Again, these are interrelated, and, in particular, to the first three: R v Massey (No 4) at [31]. Thus, objective (a) is intended to ensure that the Treatment Order achieves rehabilitation, within the specially constructed mechanism that underpins it: judicial supervision, therapeutic orientation and integrated treatment. Unless a participant engages with these elements, that objective will not be achieved.
Similarly, objective (b) is the outcome that is the achievement of that mechanism, that is, rehabilitation of the kind identified by objective (a). While reduction of dependency may be achieved by a person with such dependency just saying no and giving up drugs, the experience is that this is rare, and even more rarely successful in other than the short term. Thus, rehabilitation is necessary to achieve a durable reduction in, and management of, such dependency. Again, the failure of participation by a participant will most likely mean that this objective also will not be achieved.
The objective (c) is concerned with the outcomes that reduction in dependency is designed to ensure. There is no doubt that there are health risks associated with drug use, especially at a level of dependency. Again, this outcome depends essentially and most effectively on a successful rehabilitation, the outcome at which objective (a) is directed. Thus, as with the earlier two objectives, a participant's declining of rehabilitation or failing to engage in it will mean that this objective will also not be achieved.
Finally, objective (d) is the further result of the process that is in contemplation. While health improvement is a worthy outcome, it is also a huge benefit to a participant, his or her family, and the community, especially for potential victims of crime. This outcome, which is specifically designed to be addressed in phase three of the current Treatment Order Regime, is intended to support a participant engaging with the community in a way marked by a drug and crime free lifestyle. Similarly, without being able to manage a dependency, which depends on rehabilitation, it will not be achieved. Again, a participant's ability and preparedness to engage in rehabilitation is a precondition to the achievement of this outcome.
In order to assess this ground, this means that the Court must evaluate the ability and willingness of Mr Monaghan to engage in rehabilitation. As the finding on the first ground shows, it is satisfactorily shown on the balance of probabilities that he is not so able or willing. Accordingly, in the absence of any other basis for so finding to the requisite standard, the ground is made out.
The final ground refers to the risk to welfare and safety of members of the community. It refers, as has been indicated in R v Blackburn (No 3) [2021] ACTSC 337 at [38], not necessarily to a specific person but members of the community generally.
There are a range of issues that contribute to a consideration of this ground. In the first place, it must be accepted that there is a strong link between drug dependency and crime. Not every drug user, even with a dependency, commits crime, or even does so frequently. Nevertheless, it is very common and is very likely to occur.
Thus, without rehabilitation and the achievement of the objectives which have been referred to above, it is more likely than not that Mr Monaghan will commit further crimes. This poses a risk to the welfare and safety of the community as these are inevitable outcomes of crime.
The Court does not, however, rely on this generalisation in itself. Further, of course, Mr Monaghan has a long and serious criminal record, as identified in R v Monaghan [2015] ACTSC 153 at [23]–[31]. Thus, he has now 98 offences on his record, which as was there noted, is a sad and worrying history for a 31-year-old man. These include serious offences, including aggravated robbery, robbery and attempted robbery and, indeed, one of the offences for which the Treatment Order was made was an aggravated robbery.
This history gives me no confidence that, without rehabilitation, Mr Monaghan will not continue to commit crimes.
Finally, Mr Monaghan has been charged with further offences. They are offences that do put the community at risk if proved. The Court appreciates that they are still only allegations. Nevertheless, they arise out of events at which police were present, and for which the evidence is likely to be very strong, if not overwhelming. The prosecution case is at least strong, and no contrary submissions were made. While this is, of course, insufficient for a finding of guilt, and it is not being used for that purpose in relation to those offences, nor should that be inferred from these comments, it does justify a finding on the balance of probabilities that this may be made out, and if so, does reinforce the likelihood of him committing yet further offences.
Accordingly, the Court is satisfied to the requisite degree that, cumulatively, these matters mean that it is likely that the community's welfare and safety will be put at risk, were Mr Monaghan to continue on a Treatment Order in the community, including in residential drug rehabilitation with which he is unlikely and unwilling to comply.
Thus, the Court is satisfied that this ground is made out.
Despite the grounds of the application for cancellation being made out, Ms Duffy, on behalf of Mr Monaghan, has sought that the Treatment Order not be cancelled.
Through his counsel, Mr Monaghan has requested a further opportunity to continue his rehabilitation. It is to be accepted that there was initially some conduct and expression of attitude that suggests he can engage appropriately. In addition, his subjective circumstances were heavily relied upon to justify this further submission. These were set out in the Drug and Alcohol Treatment Assessment, from which the findings about those circumstances were largely made when sentencing him originally: see R v Monaghan at [19]–[31].
This shows significant childhood disadvantage. He was adopted at four months old, soon after the suicide of his father. His mother, who it was said “couldn't cope”, relinquished him to kinship care with his aunt, though his older brothers were not so adopted. He was regularly exposed in his home to drug and alcohol misuse. There were reports that regularly there were no adults present in the family home for days at a time and food was often in short supply. His adoptive parents were nevertheless caring.
He had a difficult time at school, often truanting, and finally being expelled in Year 5. His only additional education appears to have been in the juvenile justice system.
He began to smoke cannabis and drink alcohol around 11 years of age, a very young age. His use increased when he was 14 years old, and again when he was 17 years old, at which time he also started using methamphetamine.
When he was aged about 13, his biological mother kidnapped him and drove him to Albury, New South Wales, a very upsetting event for him. He cried all the way there. On arrival, he was allowed to call his adoptive mother, who then drove to collect him.
Mr Monaghan has had very limited employment, despite seeking it. Most of it has been in custody.
Thus, it is said that his childhood disadvantage is relevant and, when taken into account, would justify a further opportunity at rehabilitation.
Thus, the circumstance that Mr Monaghan has been raised in a family surrounded by alcohol and drug abuse may mitigate the sentence: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594; [40]. This is compounded by his early introduction to drug-taking at an age when he had no realistic prospect of making an informed judgment or choice to do so: Douglas v The Queen [1995] 56 FCR 465 at 470.
While Mr Monaghan has a depressing criminal history, it has some effects which he asked me to take into account. He has spent over seven years in custody, which, of course, has substantially limited his contact with his two children, as well as depriving him of the opportunity to make a place for himself in the community.
He says he wishes to be drug free and to achieve rehabilitation. He would be prepared to return to Canberra Recovery Services. His counsel has made contact with them to see if a placement is available, but has not heard from them. Thus, there is no currently available residential drug rehabilitation opportunity for him at this time.
While these matters are relevant, the Court cannot be satisfied that they justify the continuation of the Treatment Order. A major impediment is the present unavailability of a residential drug rehabilitation placement. This can justify a refusal to make or continue a Treatment Order: see R v Tonna (No 2) [2020] ACTSC 362 at [70]–[73].
While the evidence of Mr Monaghan's childhood deprivation and the way in which it is relevant to sentencing as well as his early introduction to drug use is accepted, he has not explained the circumstances of the breach of the Treatment Order which he has been found to have committed, nor why he is unlikely he is to continue breaching the Treatment Order as he has already done. It is unclear what has changed so far as his current and recent behaviour is concerned.
While he is not required to give evidence and, in general terms, his failure to do so cannot be taken against him, the situation here is somewhat different. The case for cancelling the Treatment Order has been made out. The case for exercising the Court’s discretion not to do so rests, in large part, with Mr Monaghan, and while his subjective circumstances are strong and justify mitigation of sentence, they do not, of themselves, show how he is likely to be able to participate effectively in the Treatment Order regime and to achieve the objects which it is designed to achieve.
There is no evidence as to why he did behave as he did, and what motivates the breaches, what has changed and what has he addressed in relation to them, and what confidence the Court can have that he will now comply. The Court must be satisfied of that, for all of the other evidence is of the same circumstances as when the Treatment Order was made, and which led to the breaches and failure to engage fully with the rehabilitation that the Treatment Order provided.
Further, of course, there are now opportunities in custody for him to show that he can engage with rehabilitation, as was correctly pointed out by the Crown. Most significantly is the Solaris Therapeutic Community, a program that is described in R v JM [2014] ACTSC 380 at [26] [Redacted for legal reasons]. If his expressed wish now to rehabilitate is genuine, this may be available for him. For these reasons, the Court cannot be satisfied that the Treatment Order should not be cancelled, and will therefore do so.
Sentencing
As a result of the cancellation of the Treatment Order, s 80ZE(3) of the Sentencing Act requires that the original sentence, being the penalty of imprisonment in the custodial part of the Treatment Order which, under that part of the Treatment Order was suspended, must be imposed on Mr Monaghan or he be resentenced.
Some of the considerations that might justify resentencing Mr Monaghan are set out in R v Tonna (No 2) at [78]–[79]. They do not appear applicable here and none have been submitted to be so, nor any others have been submitted as applicable. Accordingly, it is appropriate to impose the original sentence of imprisonment.
It is, however, not as straightforward as simply ordering that he serve it. The Court explained some of these issues in R v Dowling (No 3) [2021] ACTSC 210 at [46]–[48].
The first consideration is that, by its nature (see 12A(1)(b) of the Sentencing Act), as a sentence of more than 12 months, the Court is required, by s 65 of the Sentencing Act, to set a non‑parole period if it considers it appropriate to do so. This could not, under s 80W(2) of the Sentencing Act, be set when making a Treatment Order. Given the subjective circumstances already mentioned and which the Court has been specifically asked to take into account, a non‑parole period should be set, and the non-parole period should be of a shorter period than otherwise would be set.
Instead of setting a non‑parole period, the Court could, of course, suspend the sentence either immediately or after Mr Monaghan has served a period of custody. This would permit Mr Monaghan to be released on a date certain, and for his release not to be dependent on the discretionary order of the Sentence Administration Board, which is required for release on parole.
There is no special reason for, or evidence to justify, release in this way, such as evidence that there is a specific rehabilitation that is likely to be achieved or available. Indeed, his behaviour in custody, including any rehabilitation undertaken in prison, could be assessed to determine any conditions of the parole that would be appropriate at that time. This is not something that can be done this far in advance. The shorter than usual non-parole period is then specifically for this purpose, but the Court considers it appropriate to make a recommendation for rehabilitation while he is on parole.
Of course, were he to be convicted of any of the other further charges, given their nature and the high likelihood of a further period of imprisonment on sentencing, the non-parole period would automatically be cancelled under s 66(3) of the Sentencing Act. The sentencing Court on that occasion would have to consider setting a fresh non-parole period, as that Court has imposed that sentence, as well as the further sentence of imprisonment.
This Court must also ensure that the structure of the sentence will comply with the legislation. Thus, Mr Monaghan has already served 394 days in pre-sentence custody, but some six months of this has already been served in one sentence which was not included in the Treatment Order, leaving 210 days of pre-sentence custody. This must be reflected in the imposed sentence. It is proper that it is effected by backdating the start of the sentence as under s 63 of the Sentencing Act, as the Court is permitted to do.
In addition, Mr Monaghan has been in custody for nine days under the treatment and supervision part of the Treatment Order and so, under s 80ZE(3)(b) of the Sentencing Act, this may reduce the period of sentence. There is, in my view, no reason not to do so, and none has been submitted by the Crown. Accordingly, it will be done, and the preferable way is to increase the backdating by that period: see R v Dowling (No 3) at [59].
Finally, he spent a further 33 days in custody following the suspension of the treatment and supervision part of the Treatment Order as a result of his remand in custody, following the laying of the further charges. This should also be taken into account by backdating the start of the sentence. There is then, in total, 252 days by which the sentence should be backdated.
[His Honour then spoke directly to the offender]
Mr Monaghan, please stand.
The Court orders the following:
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), 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.
Mr Monaghan, basically, I have not been able to continue the Drug and Alcohol Treatment Order in the circumstances. I hope that you are learning to engage with rehabilitation, and if so, you can take the opportunity of the Solaris Community Program to do that. It is not quite as easy in custody, but I am not satisfied that you are yet ready to do it in the community.
I have made a shorter than usual non-parole period so that you have the opportunity to show, if you succeed in the Solaris Program, that you are ready to get back into the community, and a period that is appropriate then of rehabilitation may be imposed by the Sentence Administration Board, if that is still hopeful.
I hope that you will take this opportunity positively. I know it is not what you wanted, and I regret that I have not been able to do that on this occasion. It is not the first occasion that I have unfortunately had to dash your hopes.
Hopefully you are along a road to being able to return to a sensible activity in the community and not be a threat to the community with further offences, be able to reconnect with your family, be a real father to your children and engage in some of the great things that you can do. Engage with your art, explore your culture and other things that will make you a better person, improve you, help you to develop, and, to that extent, I wish you well, even though you are probably not terribly happy with me at the moment.
| I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 4 October 2022 |
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