R v Monaghan (No 3)
[2021] ACTSC 279
•16 June 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Monaghan (No 3) |
Citation: | [2021] ACTSC 279 |
Hearing Date: | 14 May 2021 |
DecisionDate: | 16 June 2021 |
Before: | Refshauge AJ |
Decision: | 1. Jonathan Monaghan’s conviction for dangerous driving be confirmed and he be sentenced to six months imprisonment, commencing on 18 May 2020 and expiring on 17 November 2020. 2. Jonathan Monaghan be convicted of aggravated robbery and be sentenced to 36 months imprisonment, commencing on 18 November 2020 and expiring on 17 November 2023. 3. Jonathan Monaghan be convicted of dishonestly driving a motor vehicle without the owner’s consent and be sentenced to eight months imprisonment, commencing on 18 July 2023 and expiring on 17 March 2024. 4. Jonathan Monaghan be convicted of failing to stop a motor vehicle for police and be sentenced to three months imprisonment, commencing on 18 February 2024 and expiring on 17 May 2024. 5. Jonathan Monaghan be convicted of being an unlicensed driver and be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, 16 June 2021. 6. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jonathan Monaghan for two years from today, commencing on 16 June 2021 and ending on 15 June 2023, in respect of the primary offence of aggravated robbery of which he has been convicted and for which he has been sentenced to three years imprisonment. 7. That Order be extended to the associated offences of dishonestly driving a motor vehicle without the owner’s consent and failing to stop a motor vehicle for police, of which Jonathan Monaghan has been convicted and for which he has been sentenced. 8. It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and hereby are incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. 9. The custodial period of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 16 June 2021, until 17 May 2024. 10. Jonathan Monaghan be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 16 June 2023, until the end of the total sentence, 17 May 2024, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 11. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Jonathan Monaghan travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program there by 1:00 pm today, 16 June 2021; c. Jonathan Monaghan be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; d. Should Jonathan Monaghan leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; e. Jonathan Monaghan undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and f. Jonathan Monaghan comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 12. Jonathan Monaghan be directed to appear by electronic means in Court on Friday 25 June 2021 at 12:30 pm. 13. Jonathan Monaghan be directed to attend the Court Registry before he leaves the Court precinct to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Dangerous Driving – Aggravated Robbery – Driving a Motor Vehicle without the Owner’s Consent – Failing to Stop a Motor Vehicle for Police – Unlicenced Driving – Rehabilitation – Drug and Alcohol Treatment Order – Good Behaviour Order |
Legislation Cited: | Criminal Code 2002 (ACT) ss 310, 318 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C, 7 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | The Queen ( Crown) Jonathan Monaghan ( Offender) |
Representation: | Counsel S Janackovic ( Crown) G Miekle ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 50 of 2020 SCC 76 of 2021 SCC 77 of 2021 |
REFSHAUGE AJ:
Introduction
It is undoubted that people who have a dependency on illicit drugs have a tendency to commit crimes. Some of the crimes are less serious, some are quite serious. While punishment is necessary to confirm the standards of conduct in the community that are regulated by the criminal law, that is not always, by itself, sufficient to stop such people from committing crimes, especially as habits and dependencies are hard to manage and even harder to change.
Rehabilitation, if it can be achieved, is more likely to do so and, therefore, more likely to protect further victims and the community in general. The courts are increasingly recognising the importance of rehabilitation, not necessarily as an alternative but as complimentary to other means of achieving these objectives of community protection and the enforcement of standards: see, for example; R v Hebditch [1999] FCA 1087 at [18]; Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536–7; [32].
Johnathan Monaghan, a long-time user of illicit drugs, must now be sentenced for offences of 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. He has pleaded guilty to all but one of these offences, but was found guilty after a trial of the offence of dangerous driving.
On sentencing, the Crown tendered the Crown Sentencing Tender Bundle, which included the prescribed cover sheet; committal and transfer documents (ss 90A and 90B of the Magistrates Court Act 1930 (ACT)); an Agreed Statement of Facts; the Police Statement of Facts; findings made by Chief Magistrate Walker on 6 July 2020; Mr Monaghan's Criminal History; a Pre-Sentence Report dated 2 February 2021; a Parole Order dated 12 November 2019; the cancellation of that Order dated 24 November 2020 and a Warrant of Imprisonment of the same date.
Also included was a Drug and Alcohol Sentencing List Suitability Assessment Report of the Alcohol and Drug Services dated 5 March 2021, with a Case Plan and a Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 4 May 2021. Both of these documents were Drug and Alcohol Treatment Assessments (Suitability Assessments), under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Also tendered by the Crown were a compact disc containing footage obtained from CCTV of the acts said to constitute the offence of dangerous driving and an email from the office of the Director of Public Prosecutions (ACT) dated 27 May 2021.
The Court subsequently received an additional Suitability Assessment dated 7 June 2021, from the Alcohol and Drug Services, with an amended Case Plan as required under s 46J(2)(c) of the Sentencing Act. Under directions given on 26 March 2021, it was sent to each member of the Treatment Order Team: see s 80M of the Sentencing Act. No objection was taken to the admission of this document, nor to any of the contents of it.
For Mr Monaghan, material tendered was a letter from Anne Monaghan, Mr Monaghan's foster mother, dated 31 January 2021; a letter dated 2 November 2020 from Collier Trenerry Funeral Directors concerning the death of Mr Monaghan's sister; and numerous Child and Youth Protection Services documents from between February 2003 and February 2006.
There was no challenge to the tendering of any of the documents and all were admitted into evidence, without challenge to their contents.
Mr Monaghan also gave oral evidence.
10.In addition, the Court was provided with written submissions of considerable assistance from both the Crown and defence counsel and had the significant benefit of their oral submissions.
11.From this material, the following findings are made.
The facts
12.On 24 December 2019, three men, including the victim, drove up to the Hawker shops car park, stopping near the charity donation bins. They intended to deposit some clothing in the bins as a donation to charity. Mr Monaghan and two companions were already in the car park, where they had visited the Coles Express Service Station to purchase cigarettes and other items. The movements of the latter three were captured on CCTV.
13.The victim had left his wallet on the dashboard of the vehicle while he and his two companions went to the boot of the car to take the clothing out for deposit. They had left the front passenger window down. Mr Monaghan and his companions approached the vehicle. Mr Monaghan said to his companions, “Don't worry about them. Just get into the car,” referring to ‘them’ as the men who had arrived in the car.
14.Mr Monaghan then reached into the car through the open front passenger window and grabbed the victim's wallet, saying to the victim and his companions as he did so, “Don't come to me”. He took a knife in his hand and jabbed it at the men. It was a 20 centimetre older rusty knife with a black handle.
15.The victim then yelled at Mr Monaghan, “Just take the money. Give me my wallet back”. To his credit, albeit limited, Mr Monaghan did just that, taking the money out of the wallet and throwing the wallet onto the ground.
16.Mr Monaghan and his companions then fled shouting, “run, run, run,” as they did so. The victim and one of the other men chased them for a short distance, but the three offenders disappeared into a unit in the inner block of flats. The victim later reported the robbery to police.
17.These were the facts that founded the charge of aggravated robbery, the circumstance of aggravation being the use of the knife.
18.Shortly after, a woman in Hawker telephoned police about people swearing and screaming near her residence. Police attended but did not appear to make any arrests. A media release published shortly after by police led to a Crime Stoppers report identifying Mr Monaghan as the robber.
19.On 6 January 2020, a Mazda sedan motor vehicle was stolen sometime prior to 8:30 am from Melba, ACT. Mr Monaghan later arrived in the motor vehicle at the Caltex Service Station at Watson, ACT. The vehicle was seen by police who had been notified of the vehicle's theft. They saw Mr Monaghan in the driver's seat. The police parked the police vehicle in front of the stolen vehicle and yelled words to the effect of, “Stop, police. Get out of the vehicle,” several times to Mr Monaghan. Instead, Mr Monaghan drove the vehicle forward towards the police vehicle, colliding with it, causing damage to the front passenger quarter panel and door.
20.Police then approached the stolen vehicle and again directed Mr Monaghan to stop. Instead, Mr Monaghan reversed the vehicle a short distance and again drove it forward, colliding with the police vehicle for a second time. He reversed the vehicle again at another police vehicle parked behind the stolen vehicle. Again, Mr Monaghan reversed the stolen vehicle, colliding with the second police vehicle, causing damage to the front bumper panel. Mr Monaghan was then removed by police from the stolen vehicle, was arrested for driving a stolen motor vehicle and taken to the ACT Watch House where he was refused police bail.
21.Further CCTV images later obtained from the Westfield Woden McDonald's store clearly showed Mr Monaghan earlier wearing the same clothing as at the Coles Express Service Station only seven hours later.
22.An inquiry made with the National Road Transport Databases showed that Mr Monaghan had never held a driver licence in any State or Territory in Australia. Indeed, on 11 July 2009 and on 17 March 2014, Mr Monaghan had been convicted on each occasion of being an unlicensed driver, having never held a driver licence.
23.These were the facts that led to Mr Monaghan being charged with dishonestly driving a motor vehicle without the owner's consent, failing stop a motor vehicle when requested by police, dangerous driving and being an unlicensed driver, never having held a licence.
The proceedings
24.As noted above (at [20]), Mr Monaghan was arrested on 6 January 2020. He appeared in the ACT Magistrates Court the following day, where he entered a plea of not guilty to the charge of aggravated robbery but did not enter a plea to the other four offences. On 5 March 2020, he was committed for trial to this Court on the charge of aggravated robbery. He remained in custody. The proceedings in this Court proceeded in accordance with the usual program for trial.
25.After four adjournments in the Magistrates Court, however, he entered pleas of not guilty to the other offences on 27 March 2020. Following an adjournment, he indicated a change of plea to guilty for the offences of failing to stop when requested by police and the offence of driving when not licensed, having never been licensed. Those pleas were entered on 16 July 2020. On the same day, there was a hearing, presumably on the plea of not guilty, in effect, of the trial of the charge of dangerous driving.
26.Part of the transcript of that hearing was provided as evidence. This identifies that the issue was whether the driving was merely negligent, or whether it was actually dangerous. It was hearing on a point of law and conducted “on the papers” without any witnesses being called. The Court held, relying on Jiminez v The Queen (1992) 173 CLR 572 (where a distinction was made between “want of care” negligence and dangerousness in driving) and McBride v The Queen (1966) 115 CLR 44 (where the particular circumstances of the case were held to be relevant and the danger must be to a human being or human beings and not property), as follows:
I take the following circumstances into account here. The Defendant intentionally drove his motor vehicle straight into the side of another of another motor vehicle, what might be described as a ram. His clear intent was to attempt to move the vehicle in front of him so as to make a getaway, which could only be affected by moving the vehicle in front regardless of the risk to others in and around that vehicle. He did so in full knowledge that people were moving around the vehicles.
He must have applied a significant degree of force to the accelerator in order to cause damage of such a short distance. He clearly had little or no regard to the safety of those around the vehicle, including the officer whose body was partially in the vehicle and he was standing close by to it. In the circumstances, I have no difficulty being satisfied beyond reasonable doubt that the driving, albeit in constrained circumstances, was dangerous.
27.Thus, the learned Chief Magistrate found the offence proved. Her Honour, however, did not proceed to convict Mr Monaghan at that stage: the Bench Sheet simply notes ‘proved’. There were then a number of further adjournments, 12 in all, until 25 March 2021. It is not entirely clear on the material before me as to why those adjournments were granted. It may be that Mr Monaghan was, at the time, on parole, it having been granted on 12 November 2019.
28.As these offences may have breached the Parole Order, it may have justified a delay, though the evidence before me does not elaborate that beyond speculation. In any event, the Parole Order was cancelled but not until 24 November 2020 and he was directed to serve the balance of the sentence until 7 April 2021.
29.Whatever the situation, on 25 March 2021, Mr Monaghan was committed to this Court on the charge of dishonestly driving a motor vehicle without the owner's consent, and the other two charges were transferred to the Court as related charges.
30.The dangerous driving charge was committed for sentence to this Court under s 92A of the Magistrates Court Act 1930 (ACT).
31.In the meantime, the offence of robbery had proceeded in the Supreme Court. On 28 July 2020, a Pre-Trial Application was heard, and an order was made on the application. On 17 August 2020, the trial was listed to proceed on 7 December 2020. That trial listing was vacated on 4 November 2020 and Mr Monaghan entered a plea of guilty to the charge on 5 November 2020. An Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]) was ordered and the charges referred to this Court.
32.Mr Monaghan thus pleaded guilty to the charge of aggravated robbery in this Court four weeks prior to the date of trial, but after further identification of evidence from police only two days earlier than the date on which the plea was entered. It warrants some discount for the plea of guilty.
33.For the charge of dangerous driving, he did not enter a plea of guilty and the offence was found proved and he was ultimately convicted. As to the other offences, he pleaded guilty just over a week over four months after he had pleaded not guilty, and more than six months after he was arrested. This was nevertheless in the Magistrates Court prior to committal. It warrants a reasonably significant discount for the plea.
34.On 26 March 2021, all charges were mentioned in the Drug and Alcohol Sentencing List and Suitability Assessments ordered and the matters listed for sentence.
35.Mr Monaghan has remained in custody since his arrest on 6 January 2020. He was, however, a sentenced prisoner serving a sentence of imprisonment consequent upon the cancellation of the Parole Order for the period 24 November 2020 to 7 April 2021. In accordance with the principles articulated in R v Coleman [2021] ACTSC 349 at [82]–[83], this period shall not be considered as Pre-Sentence Custody but will be taken into account in having regard to the principle of totality. Excluding this period, Mr Monaghan has been in custody for the relevant offences for 394 days.
The offences
36.As explained in the R v Massey (No 3) [2021] ACTSC 156 at [22], the proper assessment of the offences for which an offender, such as Mr Monaghan, must be sentenced involves taking into account the maximum penalties for the offences and an assessment of the relevant factors that show the seriousness of each individual version of the offence.
37.Aggravated robbery is a very serious offence, judged by the maximum penalty set by s 310 of the Criminal Code 2002 (ACT) which establishes the offence and imposes a maximum penalty of 25 years imprisonment or a fine of $400,000, or both. The offence is an offence of dishonesty and violence and is clearly one that should accordingly be treated seriously. The circumstance of aggravation was the use of the knife, which is regarded by the courts as a matter of great seriousness. Violence of any kind is unacceptable, leading, if not to physical harm, certainly mental harm. The relevant features were explained in R v Coleman at [31]–[34].
38.In this case, the threat with a knife was a serious matter. As Higgins J, as his Honour then was, said in R v Griggs [1999] ACTSC 22 at [41], a knife is “always loaded”. It is noted, however, that, while the knife was brandished and the victim threatened, there was no actual damage or harm caused. I do not consider that the victim was in a particularly vulnerable position.
39.It was not a sophisticated robbery and there was no planning; it was clearly opportunistic. There was some evidence about how much money was taken, give that $740 in cash could be seen protruding from the wallet. Speculation is not permitted, but it cannot, in the circumstances, have been a very substantial amount, though it may have been significant for the victim.
40.Further, as a modest mitigation, Mr Monaghan did not take the wallet but, as requested, only the cash. Had he taken the wallet, this could have caused great inconvenience, if items such as a driver licence or similar items were taken, or if credit cards were taken which, of course, in these days of “tap and pay” would also risk further loss.
41.It was a serious offence, but by no means a very serious version of it.
42.Dishonestly driving a motor vehicle without the owner's consent is contrary to s 318(2) of the Criminal Code and attracts a maximum penalty of five years imprisonment or a fine of $80,000 or both. It is an offence of dishonesty and deprives the owner of the use of the vehicle which can cause significant inconvenience. This offence has been considered in R v Massey (No 3) at [27]–[28].
43.Important factors include the period of driving and the distance travelled. In this case, there was no real evidence of that, though the car was stolen sometime before 8:30 am and Mr Monaghan was seen driving it at 10:00 pm. It is not clear how much of that time he had been driving it, if at all, especially as there was another person also in the vehicle. There was no evidence of whether Mr Monaghan had driven it to the service station or how far. It was stolen from Melba and sighted at Watson.
44.There was also no evidence of the manner of driving other than after being sighted by police when Mr Monaghan tried to avoid arrest by colliding with the police cars. This was a very short period and the period to which the charge related. Mr Monaghan was, at the time, unlicensed, having never held a licence. The car is likely to have been damaged in the collisions, though there was no specific evidence of that. Clearly, the vehicle was able to be returned to the owner. It was clear, too, that Mr Monaghan is likely to have continued to drive the vehicle unless, as here, police had interrupted him and stopped him from doing so. Otherwise, the motor vehicle does not seem to have been used for the commission of other offences other than those directly related to the driving.
45.Dangerous driving is an offence against s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which specifies a maximum penalty of 12 months imprisonment or a fine of $16,000, or both. It also attracts an automatic disqualification from holding or obtaining a driver licence for three months. The offence is clearly intended to protect road users and so it is important to assess the risk, such as to other proximate road users, whether other drivers or motorcyclists, bicycle riders or pedestrians and, as well, those who might well be in the vicinity because it is a built-up area of residential and commercial properties where the driving takes place.
46.Here, while there might be other users of the service station, it was relatively late at night and there was no evidence about this. The area was a commercial area during which the service station was open for business. There were, however, police not merely in the vicinity but close to the vehicle. The driving, however, was for a very short distance but involved a deliberate collision with both police cars. Mr Monaghan was found to have intended to escape arrest, though there was not an actual pursuit by police.
47.Failing to stop when requested by police is an offence against s 5C of the Road Transport (Safety and Traffic Management) Act which prescribes a maximum penalty of 12 months imprisonment or a fine of $16,000, or both. This is an important offence to ensure the safety of the roads. Obedience to directions by police officers is important. Not only did Mr Monaghan fail to comply with the direction, he used what Chief Magistrate Walker described as “a significant degree of force” in defiance of the order and in an attempt to evade arrest.
48.Finally, driving whilst unlicensed, having never held a licence, is made a crime by s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) for which a maximum penalty is a fine of $3000. The offence is an important part of the regulation of road use by motor vehicles, which can be of great benefit but can cause great harm, even death. The regime of licensing can help ensure that those who should not be driving, because they put others at risk or cannot comply with the road rules, are prevented from doing so. Thus, the sanction is important for the integrity of the regime. There was, here, no reason for Mr Monaghan to have been driving, though the manner of the driving is important, but it is important not to punish Mr Monaghan twice for the criminal culpability.
Subjective circumstances
49.I have sentenced Mr Monaghan on at least two prior occasions. It is reasonable to look at what I there said. He was born in 1990, so he is now 31 years old. [Redacted for legal reasons].
50.Further information shows that he is a Wiradjuri man and has had regular engagement with the local Indigenous community, both in custody and in the community.
51.His adoptive mother's letter explains that Mr Monaghan's biological father suffered from depression and unfortunately committed suicide, so that Mr Monaghan did not really know him.
52.It is clear to me that Mr Monaghan's childhood was disadvantaged such that it requires this court to apply the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-5; [41]–[44]. It is, of course, important that such principles are taken into account, but do not overwhelm the proper consideration of other sentencing principles: Munda v Western Australia [2013] HCA 38; 249 CLR 600 at 619–20; [53]–[54].
53.He has two children from previous relationships; the one referred to above (at [49]) and one other. While they live with their mothers, he has some telephone contact with them. He is currently single.
54.His life really took the wrong direction when he was about 12 years old and his adoptive mother described that “he started to fall into the wrong crowd. He is easily influenced by the people around him”. He started truanting from school. He then, in his teenage years, [redacted] and would stay out for all hours. His biological mother kidnapped him when he was 13 and drove him to Albury until he called his adoptive mother who picked him up. The events were traumatic for him.
55.Last year, his sister also died. This has deeply affected Mr Monaghan, as they had been very close.
56.The close relationships with his adoptive parents means that, when out of custody, he can stay with them. The house has been assessed as suitable for him after he completes residential drug rehabilitation. At this time, a curfew would be helpful.
57.Mr Monaghan commenced using alcohol when he was 14 years old and has continued to escalate its use since then.
58.He began smoking cannabis, however, when he was only 11 years old and also increased this drug into his later teens, but reduced its consumption in his twenties.
59.His methylamphetamine use began when he was 17 years old. It would escalate when he was “on the run”. He has been prescribed methadone which prevents its use but is hoping to transition to Buvidal.
60.He has 93 offences on what is a very depressing criminal record for a man of his age. They are mainly dishonesty offences with, as a matter of concern, nine offences of aggravated robbery, robbery or attempted robbery. He also has a number of traffic offences on his record. [Redacted]. Apart from the robbery and similar offences which are offences of violence, no other offences of violence and, in particular, no assault offences as an adult appear on his record.
61.He has, however, many prior offences of the kind for which he must now be sentenced. How such prior offending should be dealt with on sentencing has been carefully discussed in R v Massey (No 3) at [47] and the Court will apply the principles there articulated.
62.Mr Monaghan has some developmental deficits, especially in the area of verbal intelligence, with a relatively low IQ, although it was indicated [redacted] that there appears to have been improvements in recent years.
63.Mr Monaghan has had some limited alcohol, tobacco and other drug treatments. He has had little counselling though, as noted (at [59]), he has had some pharmacotherapy treatment. He did earlier seek assistance at Oolong House, New South Wales, but was not offered a place: see [redacted]. He spent three weeks at the Ted Noffs Foundation in 2009 and four days at the Karralika Therapeutic Community. He did, however, successfully complete the Solaris Therapeutic Community in the Alexander Maconochie Centre during his recent period in custody.
64.Mr Monaghan, in his oral evidence, acknowledged that, prior to his arrest, he had been using methylamphetamine up to three grams a day and drinking alcohol fairly heavily. He continued a little when he was in custody until he entered the Solaris Therapeutic Program and, after a week or two there, stopped using. He completed that program in six months but remained there a further two or three months because of what he described as the “good environment”, but was ultimately “moved on”. He said that he did not thereafter use drugs.
65.He said that he had occasionally been subject to urine testing which, on analysis, showed a negative result for drugs. It appears, however, that there is no record of any such urinalysis conducted by ACT Corrective Services after he left the Solaris Therapeutic Program on 29 July 2020. Having heard Mr Monaghan’s evidence, however, it can be accepted that he did not thereafter use illicit drugs.
66.As noted (at [48]), I have earlier sentenced Mr Monaghan and have read the decisions in which I did so: [redacted]. The findings there made about Mr Monaghan's personal circumstances and the history of his offending will be taken into account.
67.He has been assessed as likely having a severe substance use disorder. He committed the current offences to support his drug use and had been heavily impaired by the use of methylamphetamine at the time.
68.He did express remorse and a level of victim empathy. He did not attempt to minimise or justify his offending and showed insight into the offending and its causes.
Conditional liberty
69.Mr Monaghan committed these offences while on parole. As noted in Auld v The Queen [2013] ACTCA 21 at [9], this is a serious aggravating feature. It breaches the trust placed in Mr Monaghan to be in the community instead of in prison. It is noted, however, that his parole has been cancelled and that he was then further incarcerated. In dealing with this matter on sentence, it must be ensured that double punishment is not imposed.
Current sentencing practice
70.In addition to identifying from current decisions the relevant factors in assessing the seriousness of each offence, the Court must, as required by s 33(1)(za) of the Sentencing Act, consider carefully current sentencing practice. Neither counsel referred in their helpful submissions to comparable cases. It is difficult with multiple offences to identify comparable cases in any event. The other information that can inform a sentencing judge, but will be with significant limitations to which the Court can have regard, are statistics set out in the ACT Sentencing Database. As to aggravated robbery, it was said in R v Coleman at [75]:
The ACT Sentencing Database shows that, unsurprisingly, sentences for aggravated robbery vary widely from a Good Behaviour Order, fully and partially suspended sentences of imprisonment, Intensive Correction Orders and sentences of full-time imprisonment. For the latter, the length of sentences range from 9 months to 12 years, though 80% of sentencing terms were in the range of 2 years to 6 years.
71.In relation to dangerous driving, there are a few sentences recorded as having been imposed in this Court, the majority being from one to six months imprisonment.
Consideration
72.Sections 6 and 7 of the Sentencing Act set out the objects and functions of sentencing respectively, and, as required by that Act, the Court must have regard to them.
73.The seriousness of the offences as described and the fact that Mr Monaghan has committed the same crimes before, save for the crime of dangerous driving, means that punishment must play a part in the sentence. Indeed, the harm that such offences do to the community requires protection of the community to be significant and, in part, that requires a sentence that will deter others from committing like crimes.
74.That Mr Monaghan has committed such offences before means that the sentence should also show an element of specific deterrence. That is to deter him from such offending. Such severe punishments have not been effective in the past, however, and it is appropriate to consider alternative ways to achieve this purpose. That is, in this context, to consider whether a greater emphasis on rehabilitation may better secure his compliance with the law and a greater protection for the community.
75.Nevertheless, the sentence must denounce the offending and that, too, will help to reinforce the standards that the community expects of its members, as expressed in the criminal law.
76.It is important, too, to recognise the harm done to the victims, not identifiable in each crime, but where it is to be a factor in the sentence. There were no Victim Impact Statements provided. Nevertheless, the Court can understand the harm that such crimes cause. The aggravated robbery must have been terrifying, though the victim still had the presence of mind to save his personal items in his wallet which Mr Monaghan did do.
77.Mr Monaghan pleaded guilty to all the offences, save the offence of dangerous driving. Set out above (at [25]; [31]–[33]) is the point in the criminal proceedings when they were entered. This is highly relevant to the appropriate discount to be afforded to Mr Monaghan for the entry of the plea. Nevertheless, the evidence of the police would have been very strong in each of these cases. The plea to the charge of aggravated robbery was reasonably late and, while still attracting a discount, is not so substantial as for the other offences to which Mr Monaghan pleaded guilty. For the offence of dangerous driving, no sentencing discount can be afforded since no plea of guilty was entered. This, of course, does not mean that the sentence must be made more severe than is just and adequate because he chose to plead not guilty.
78.The nature and circumstances of the offences, as described above (at [36]–[48]), has been taken into account, as well as the facts that constituted them (at [12]–[23]). Account is also taken of Mr Monaghan's personal circumstances as described above (at [49]–[68]). The fact that some harmed identifiable victims and, so far as can be found, the harm caused, and that Mr Monaghan has accepted responsibility for the offending, showing remorse, has also been taken into account. In addition, account has been taken of his commitment to rehabilitation, in the light, of course, of the failed attempts he has previously undergone. As said in Saga v Reid [2010] ACTSC 59 at [89], multiple attempts and failures at rehabilitation from dependency on alcohol and illicit drugs do not necessarily bar an offender from being offered further attempts.
79.The sentences imposed will reflect that he committed these offences while on conditional liberty, though he has served a period of incarceration for that breach, and the sentence must not impose a double punishment. In all the circumstances, however, no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
80.There are, of course, multiple offences for which Mr Monaghan must be sentenced. A sentence must be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr Monaghan is not punished twice.
81.Consideration has also been given to whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is clearly so with the various driving offences, though the aggravated robbery is a separate offence committed on a quite different day.
82.The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of all the offences committed, but not more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope required for Mr Monaghan to take an effective part in the community and realise his aims when he is released.
83.This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Monaghan is an important factor, his growing awareness of the need for rehabilitation and his continuing commitment to it, combined with his remorse and insight, are also important factors, as is the circumstances of his early introduction to drug use and his disadvantaged childhood.
84.Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also Mr Monaghan's subjective circumstances and the value of reform to both the community and to himself.
85.In imposing the sentences too, regard must be given to the time he has already spent in custody prior to sentence — more than a year. This shall be done through backdating the sentence for the period, not including the period of sentence for earlier crimes, consequent upon the cancellation of the Parole Order.
Sentence
[His Honour then spoke directly to the offender]
86.Mr Monaghan, please stand.
87.The orders of the Court are as follows:
(1)The conviction for dangerous driving is confirmed and you are sentenced to six months imprisonment, to commence on 18 May 2020 and end on 17 November 2020.
(2)You are convicted of the offence of aggravated robbery and sentenced to 36 months imprisonment, to commence on 18 November 2020 and end on 17 November 2023. That is to be wholly cumulative on the sentence for the offence of dangerous driving. Had you not pleaded guilty, you would have been sentenced to 42 months imprisonment.
(3)You are convicted of dishonestly driving a motor vehicle without the owner's consent and sentenced to eight months imprisonment, to commence on 18 July 2023 and end on 17 March 2024. That is to be cumulative as to four months on the sentence for the offence of aggravated robbery. Had you not pleaded guilty, you would have been sentenced to 10 months imprisonment.
(4)You are convicted of failing to stop a motor vehicle for police and sentenced to three months imprisonment, to commence on 18 February 2024 and end on 17 May 2024. That is to be cumulative as to two months on the sentence for dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
(5)You are convicted of being an unlicensed driver and required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, 16 June 2021.
88.You may be seated.
Drug and Alcohol Treatment Order application
89.That is an overall sentence of four years imprisonment. Mr Monaghan has requested that the sentence be served by a Treatment Order. This application will now be considered.
90.The first consideration is whether he is eligible under the requirements of s 12A of the Sentencing Act. The offence of aggravated robbery is an eligible offence. The sentence of imprisonment for the offence is 3 years imprisonment, which is more than the minimum penalty of 12 months imprisonment set out in that section. The total sentence of 4 years for all the sentences is also within the maximum of 4 years also set out in the section.
91.Mr Monaghan has pleaded guilty to each of the offences, save for the offence of dangerous driving. That offence is not an eligible offence. He has, however, completed that sentence of six months imprisonment in Pre-Sentence Custody, so he is not serving any other sentencing order within the meaning of s 12A of the Sentencing Act.
92.In addition, the evidence satisfies the Court that Mr Monaghan has a severe substance use disorder, principally for use of methylamphetamine, and this means that he is dependent on illicit drugs. It also satisfies the Court that that dependency was the primary contributing factor for his offending. The Court is further satisfied that he is likely to live in the ACT for the term of the sentence.
93.Mr Monaghan has provided his signed consent and the Court is satisfied that the nature and obligations of a Treatment Order have been explained to him and that he has had an opportunity to ask any questions he may have about it and had any such questions properly answered. Indeed, he has been involved in a proposed change of regime under such an Order which is now proposed in the amended Case Plan. As such, the Court is satisfied that he has consented to the making of a Treatment Order.
94.Accordingly, Mr Monaghan is eligible for a Treatment Order to be made for him.
95.I have read the expertly prepared, comprehensive and insightful Suitability Assessments. They are very helpful in assisting the consideration of this issue. Both, those from the Alcohol and Drug Services and ACT Corrective Services, recommend that Mr Monaghan is suitable to be subject to a Treatment Order.
96.The Crown, however, has submitted that such an Order is inappropriate. Originally, the Case Plan was for rehabilitation in the community and it is also accepted that that would not have been appropriate. The amended Case Plan is for residential drug rehabilitation. This is more appropriate. That he has completed successfully the Solaris Therapeutic Community Program since he has been in custody for these offences suggests that he can complete such a program.
97.There was an issue about whether Mr Monaghan had subsequently used drugs. In his evidence, he denied it and said that he had engaged in subsequent urinalysis which was negative for such drugs. It appears that there is no record of such testing. There is, however, no evidence of drug use in custody since he completed the Solaris Therapeutic Community Program.
98.It is accepted, too, that he has a history of serious offending, and that he continues to commit similar offences. While there are few options available to a Court that must sentence him, the continued imposition of sentences has not been successful and it is appropriate to look at alternative options, such as a Treatment Order with its judicial supervision, intensive treatment and broad supportive elements.
99.The Court also accepts that the aggravated robbery was a serious offence and that it deserves a severe sentence of imprisonment of some significant length. Nevertheless, it is always important to note that a sentence of four years or less is significant. It is a significantly serious sentence and yet a crime that justifies such a sentence is nevertheless one for which the offender is eligible for a Treatment Order. That is to say, the length of the sentence per se does not mean that a Treatment Order is inappropriate.
No indicators of unsuitability for a Treatment Order as set out in Table 46K of the Sentencing Act have been identified.
Having carefully considered the cogent and thoughtful submissions by the Crown, the Court is nevertheless satisfied that Mr Monaghan is suitable for a Treatment Order and that it is appropriate that one be made.
Finally, it is noted that the sentence of imprisonment commenced well before today, namely 18 May 2020, to take into account the 394 days of Pre-Sentence Custody. Thus, part of the sentence has now been served and only the balance can be suspended, so that it is not thereby a fully suspended sentence. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-–[111], this does not prevent the making of a Treatment Order.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender again]
Mr Monaghan, please stand again.
The Court further orders the following:
(6)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, 16 June 2021, and ending on 15 June 2023, in respect of the primary offence of aggravated robbery of which you have been convicted and for which you have been sentenced to three years imprisonment.
(7)That Order is to be extended to the offences of dishonestly driving a motor vehicle without the owner's consent and failing to stop a motor vehicle for police of which you have been convicted and sentenced and which are associated offences of that primary offence.
(8)It be noted that the convictions and sentences imposed for the primary and associated offences are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(9)The custodial period of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 16 June 2021, until 17 May 2024.
(10)You are required to sign an undertaking to comply with the offender's Good Behaviour Obligations under s 85 of the Crimes (Sentencing) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 16 June 2023, until the end of the total sentence, 17 May 2024, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services, or his delegate, for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(11)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, the Court directs that:
a.The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby imposed;
b.That you travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit yourself to the residential drug rehabilitation program there by 1:00 pm today, 16 June 2021;
c.You complete the residential drug rehabilitation program at Canberra Recovery Services and are not to leave the facility until you have completed the course, and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d.Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00 pm on the next business day after you leave or are discharged, with a view to having the Drug and Alcohol Treatment Order reviewed;
e.You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time
f.You are to comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(12)You are directed to appear in Court by electronic means on Friday 25 June 2021 at 12:30 pm.
(13)You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and the undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Mr Monaghan, that is the sentence that I have imposed. You have heard a lot about your story and the offences that you have committed - you know all about that.
The sentence is a relatively serious one — it is four years imprisonment — but I do not require you to spend any further time within prison at this stage, because I am making a Treatment Order. The Order suspends the imprisonment for the period it is in place and a Good Behaviour Order will operate after that time.
First of all, you must go to Canberra Recovery Services and complete the residential program there: no using drugs, no drinking alcohol and obey all directions.
You do not want to be in and out of gaol. This is the opportunity to really help you stop that. You could just stop. Stopping is really tough in your circumstance, so this Court is the place where you can get help, supervision and direction to do that. You will be supported, but you have got to come to the party. It is you, ultimately, that has got to be rehabilitated and you have got to work with us, but if you do so, this Court and its team will support you and help you.
It is not going to be easy. You have lived this lifestyle for a long time — nearly 30 years. It is going to be rough to try and get out of it and to become the kind of father that you want your kids to see and to look up to, to be a role model, to get on with a life that will be good for you, develop you and your talents and perhaps get into horticulture which you have indicated you might be interested in. That would be really good, but you have got to work for it.
Do not give up. If it gets tough, come back and see me. For a while, you will see me every week. If there are problems, let us talk about them. You do not need to talk to me all the time about them. You will have good counsellors, you will have case managers who will work with you and will listen to you, hear your difficulties and suggest ways out of it, including sometimes just being a bit tougher, because if you can get through some of those difficulties, that will make you stronger. That will make you able to resist these urges that you have to do — these seriously criminal things, things I am sure are not really what you want to do.
One of the really important things is to be honest. Be honest with yourself - that can be tough. It is very easy to pretend that all is okay to comfort yourself, but things have not been okay. You have done stupid things. You have done seriously criminal things. You should not be proud of that, but you can move beyond that and despite those things, that does not ruin the rest of your life.
There are opportunities for you, but be honest with yourself and be honest with those who are seeking to help you. It does not help us if you just tell us what you think we want to hear. We want to hear what you genuinely think, what you are genuinely working on and how we can help you and how we can direct you, but you will have to do it. This program requires hard work, but you did it in Solaris, you can do it again.
Do not start using, do not disobey the rules because I do not want to have to send you to gaol. If necessary, I will, for the balance of the nearly three years left on that sentence, if I have to. If things get tough, come and talk to me about it. If there are things that you do not like to speak of in front of the other participants in the program or the staff, speak to your lawyer and we can make appropriate arrangements for that. It will not be a closed Court. There will be other people here, but we can deal with that so that you do not feel embarrassed or feel that you are having problems there.
One of the worst things you can do is just think, “It is all too much. I am going to run away.” Come back and let us talk about it. There may be alternatives. We have not got a lot of options, but there may be alternatives and, if you talk about it, we can possibly resolve it. Not necessarily, but possibly. If you do not talk about it, we cannot. If you are discharged, and hopefully you will not be because you will do the right thing, or if you just leave contrary to what I have told you, you must come back. Call in at Corrective Services by 4:00 pm the next day. They will arrange for you to come back to Court and we will review the Order. I cannot guarantee that there will be alternatives. It may be that I have just got to cancel it and send you back to prison. But at least we can look at it and I can assure you that the people here will try to keep you on track. If you show us you are willing to work towards rehabilitation, and work with us, then support will be available to you.
I hope it works. I have seen you too many times in this Court, and what I have done before has not worked. Hopefully, we have cracked it this time. Hopefully, it will work.
Work hard at it and I wish you very good luck.
| I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 6 October 2022 |
3
6