R v Monaghan (No 3)
[2012] ACTSC 45
•February 13, 2012
THE QUEEN v JONATHON MONAGHAN (No 3)
[2012] ACTSC 45 (13 February 2012)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – residential rehabilitation placement available – application opposed – insufficient time allegedly served and risk of reoffending – no prior attempts at rehabilitation – opportunity to demonstrate engagement in rehabilitation program – bail granted
CRIMINAL LAW – jurisdiction, practice and procedure – judgement and punishment – sentencing – indigenous offenders – importance of rehabilitation for young offenders
Criminal Code 2002 (ACT), ss 308, 309, 310, 311, 312, 318(2)
Crimes (Sentencing) Act 2005 (ACT) s 27
R v Monaghan [2009] ACTSC 61
R v Monaghan(No 2) [2011] ACTSC 62
TM v Karapanos (2011) 250 FLR 366
R v Mills [1998] 4 VR 235
Hogan v Hinch (2011) 243 CLR 506
EX TEMPORE JUDGMENT
No. SCC 26 of 2009
No. SCC 362 of 2009
No. SCC 363 of 2009
No. SCC 128 of 2011
No. SCC 129 of 2011
No. SCC 18 of 2012
Judge: Refshauge J
Supreme Court of the ACT
Date: 13 February 2012
IN THE SUPREME COURT OF THE ) No. SCC 26 of 2009
) No. SCC 362 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 363 of 2009
No. SCC 128 of 2011
No. SCC 129 of 2011
No. SCC 18 of 2012
R
V
JONATHON MONAGHAN
ORDER
Judge: Refshauge J
Date: 13 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The sentencing proceedings be adjourned to 2 May 2012.
Mr Monaghan be granted bail to appear on 2 May 2012 on the conditions that:
1. he accept supervision by the Director General of Corrective Services or her delegate, and obey all reasonable directions of the person delegated to supervise him;
2. he accept monitoring by CADAS;
3. he abstain from the use of illicit drugs and alcohol;
4. he submit, as and when required, to breath analysis and urinalysis;
5. he not operate a motor vehicle, be in possession of the keys to a motor vehicle or be in the drivers’ seat of a motor vehicle;
6. he be released on 14 February 2012 into the custody of a staff member of the Aboriginal Justice Centre or Karralika Programs Inc and accompany that person to the Karralika facility for the purpose of undergoing treatment;
7. if, for any reason, he is not admitted to Karralika he must report, as soon as possible, and in any case within 24 hours, to the Registrar of the Supreme Court in person, for the purpose of his bail being reviewed;
8. he remain in Karralika program, except for any absences to attend court, and obey all reasonable directions in respect of that program and not terminate or absent himself from that program without prior permission of the Supreme Court;
9. if discharged from that program for any reason, he must report as soon as possible, and in any case within 24 hours, to the Registrar of the Supreme Court in person, for reconsideration of his bail.
Jonathon Monaghan is a 22 year old indigenous man who has been charged with, and pleaded guilty to, a number of dishonesty offences. These include:
-
dishonestly driving another’s motor vehicle, without consent, an offence under
s 318(2) of the Criminal Code 2002 (ACT), rendering him liable to a maximum penalty of 500 penalty units, that is a fine of $55 000, or five years’ imprisonment, or both;
- robbery, an offence by virtue of s 309 of the Criminal Code for which the maximum penalty is 1 400 penalty units, that is a fine of $154 000, or imprisonment for 14 years or both;
- burglary, contrary to s 311 of the Criminal Code and attracting a maximum penalty of 1 400 penalty units, that is a fine of $154 000, or 14 years’ imprisonment or both;
- theft, prohibited by s 308 of the Criminal Code for which the maximum penalty is 1 000 penalty units, a fine of $110 000 or imprisonment for 10 years or both;
- aggravated burglary, an offence by virtue of s 312 of the Criminal Code which provides for a maximum penalty of 2 000 penalty units, that is a fine of $220 000, or 20 years’ imprisonment or both; and
- aggravated robbery, contrary to s 310 of the Criminal Code and punishable by a maximum penalty of 250 000 penalty units, that is a fine of $275 000, or 25 years’ imprisonment or both.
There were a number of counts for some of these offences. The earliest of the offences were committed in September 2006. Some, however, were committed in 2011.
During the proceedings, an issue arose as to Mr Monaghan’s fitness to plead. I dealt with that in two decisions: R v Monaghan [2009] ACTSC 61 and R v Monaghan
(No 2) [2011] ACTSC 62, finding him ultimately fit to plead. He subsequently pleaded guilty to the various offences.
Mr Monaghan appeared before me for sentence on 9 February 2012. His counsel for the sentencing proceedings, Ms T Warwick, informed me that he had been granted a place at the Karralika Therapeutic Community from 14 February 2012. She sought to adjourn the proceedings and applied for bail for Mr Monaghan to attend that facility until then.
That application was opposed. Mr M Clark, who appeared for the prosecution, indicated that, although Mr Monaghan spent many months incarcerated since his first arrest on these charges, that time was not sufficient as a penalty. He submitted that it would be inappropriate to release Mr Monaghan at this time as he would be likely to have to be returned to custody. Mr Monaghan had spent 21 months in custody before being released and then, after the most recent offences, had been returned to custody in October 2011, only four months ago.
Mr Clark also submitted that Mr Monaghan had a pattern of offending, having been released on bail and reoffending shortly after that and being returned to custody. He submitted that to release Mr Monaghan now risked further offending.
These are serious and fair concerns expressed by the prosecution.
Mr Monaghan has, however, a long-standing drug problem. He first smoked cannabis at the age of 11 and began using methamphetamine when he was 16.
Mr Monaghan has an extensive criminal record and it appears to be largely a result of his drug abuse. He does not appear to have undertaken much by way of drug rehabilitation in the past. Indeed, he sought assistance in 2010 but then failed to attend the program offered.
As Ms Warwick has pointed out, on this occasion, Mr Monaghan himself initiated the contact with Karralika and he has been assessed as suitable. He has expressed his wish in a letter to me, which I received on the application. The letter, which is exactly as he wrote, was as follows:
I am asking for the chance to attend residential rehabilitation at Karalika. This would give me a chance to adress my drug and alcohol addiction issues which is the cause and reason for my criminal behaviour. If I can work on and resolve the issues relating to my drug and alcohol use than I believe my criminal behaviour will cease.
As far as my criminal behaver goes I am disgusted with myself and im tired of hurting and negatively impacting of [sic] other people and society in general.
I don’t wont to be the cause of grief and suffering I wont to be worthwhile and contribute in a positive way.
I am just starting to understand the full impact of my actions on others and I don’t wont to be that person and hopefully rehab would give me the step up I need improving myself and mend my ways I am very serious about changing my ways not just for me, but for my family.
My goals are to sustain a higher quality of life by absting from drugs and alcohol and basing my life around my family particularly my son who is two and a half years old. Also to maintain a full time job so I can provide for my family and have a higher sense of self worth as a usefull member of society.
Whilst some of Mr Monaghan’s intentions may be unrealistic and may, indeed, be unachievable by him, they show some considerable insight, motivation and reasons for accepting that the motivation may be genuinely supported by some external factors such as his family obligations.
It has to be accepted that Mr Monaghan has challenges. He has, in 2004 and 2006, been found unfit to plead by reason of his intellectual capacity. I do not need to detail that; it is set out in my earlier decisions. It does mean that his capacity to function in the community is impaired and that he has a very low IQ and a Mixed Receptive Expressive Language Disorder which I have previously discussed in detail. These provide him with significant challenges.
Mr Monaghan is an indigenous man who was adopted at an early age. He has had no contact with his biological father who is deceased and rare contact with his biological mother.
Although he had a supportive upbringing with his adopted family, also an indigenous family, he has had difficulties in the education system, no doubt exacerbated by the drug challenges that he faces. This has led him into offending and continuing drug use.
I have set out some of the considerations in sentencing indigenous offenders in TM vKarapanos (2011) 250 FLR 366 at [112]–[118]. Much of what I said there may not be applicable here. There certainly are issues, however, that need to be addressed.
I have much hesitation in addressing this issue. Mr Clark’s submissions are cogent and appropriate. On the other hand, even a deferred sentence order under s 27 of the Crimes (Sentencing) Act 2005 (ACT) may result in further custody after a period in the community.
While rehabilitation is not the overwhelming priority, it is important for young offenders. At 22, Mr Monaghan is still relatively young and some of the offences were actually committed (although not prosecuted) while he was a minor. Principles in sentencing young offenders mean that rehabilitation does become more important. In summary, in R v Mills [1998] 4 VR 235, Batt JA, with whom Phillips CJ and Charles JA agreed, said (at 241):
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community, as well as the offender.)
This was echoed by French CJ in Hogan v Hinch (2011) 243 CLR 506 at 537, where he said that “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.”
While Mr Monaghan should be under no illusion that he may yet face a penalty of some form of custody, including possibly full‑time custody, it seems to me that he should now be given an opportunity to show that he can really engage in rehabilitation. That will be a major challenge, but the time appears now to be right. Even the author of the helpful pre-sentence report saw his intention in making contact with Karralika as a positive factor. To move now, when he is motivated, is much preferable to further incarceration which may allow his motivation to dissolve.
It must be recognised that this motivation must continue for some time; months, perhaps years. To build now, however, with the possibility of real reinforcement for that, is clearly desirable.
Accordingly, I will adjourn the sentencing proceedings to 2 May 2012 and grant Mr Monaghan bail in the meantime.
I grant Mr Monaghan bail to appear before me on 2 May 2012, with the following conditions:
1. that he accept supervision by the Director General or her delegate through ACT Corrective Services and obey all reasonable directions of the person delegated to supervise him;
2. that he accept monitoring by CADAS;
3. that he abstain from the use of illicit drugs and alcohol;
4. that he submit as and when required to breath analysis and urinalysis;
5. that he not operate a motor vehicle, be in possession of the keys of a motor vehicle or be in the driver’s seat of a motor vehicle;
6. that he be released on 14 February 2012 into the custody of a staff member of the Aboriginal Justice Centre or Karralika Programs Inc and accompany that person to the Karralika facility for the purpose of undergoing treatment;
7. that if, for any reason, he is not admitted to Karralika he must report, as soon as possible, and in any case within 24 hours, to the Registrar of the Supreme Court in person, for the purpose of his bail being reviewed;
8. that he must remain in the Karralika program, except for any absences to attend court, and obey all reasonable directions in respect of that program and not terminate or absent himself from the program without prior permission of the Supreme Court;
9. that if he is discharged from the Karralika program for any reason, he must report as soon as possible, and in any case within 24 hours, to the Registrar of the Supreme Court in person, for reconsideration of his bail.
[His Honour then spoke directly to Mr Monaghan as follows:]
Mr Monaghan, I have accepted that Karralika is an option for you. It is going to be hard. You have really got to put your shoulder to the wheel and make the best of it.
If you slip up then a long prison sentence is almost inevitable. If things get tough the most important thing for you is to come back to this court and see what we can do about it. I do not give you any guarantees. That may mean prison; it just depends on the circumstances. But if you do not do that you inevitably will end up in prison.
This may be your opportunity. You have to work hard at it, but if you are committed as your letter said to me you are, if you really do want to have contact with your son and be a father to him and be a role model to him then now is your opportunity.
Work hard at it. If things go wrong do not wait, do not run away. Come back and we will see what we can do. I do not promise, but we will see what we can do.
(Additional note)
I note that, had they been prosecuted earlier, some of these offense that I have referred to above (at [3]–[4], [19]) may have attracted the application of s 712A of the Criminal Code, requiring the non-publication of information identifying Mr Monaghan. However, the offences that Mr Monaghan committed while he was a young person were not the subject of criminal proceedings until after his 18th birthday. Therefore, there are no ‘childrens proceedings’ as defined in the Criminal Code
s 712A (5) and no restriction on publication.
I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2 April 2012
Counsel for the Crown: Mr M Clark
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Ms T Warwick
Solicitor for the accused: JCKB Legal Services
Date of hearing: 13 February 2012
Date of judgment: 13 February 2012
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