R v Monteiro - [2021] NSWDC 340

District Court

New South Wales

Medium Neutral Citation: R v Monteiro [2021] NSWDC 340
Hearing dates: 2 June 2021
Date of orders: 16 June 2021
Decision date: 16 June 2021
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Aggregate term of imprisonment of 2 years and 8 months with a non-parole period of 2 years

Catchwords:
HIGH RISK OFFENDERS — Extended supervision orders — Breach of
SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality — Form 1 offences — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Health issues — Hardship — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offender’s) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1
Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; NSWCCA 194
Imbornone v R [2017] NSWCCA 144
R v Edwards (1996) 90 A Crim R 510
State of New South Wales v McQuilton(Final) [2019] NSWSC 265
State of New South Wales v Monteiro(aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350
State of New South Wales v Monteiro (Final) [2020] NSWSC 881

Category: Sentence
Parties: Regina (Crown)
Simon Monteiro (Offender)
Representation:
Counsel:
Ms A Betts (Offender)
Solicitors:
Mr J Murray (ODPP)
Mr R Hill (Offender)

File Number(s): 2020/00241035
Publication restriction: Nil

Judgment

The offender Simon Monteiro, 54 years of age, appears for sentence in relation to eight offences as follows: three offences of fail to comply with the requirements of an interim supervision order and five offences of fail to comply with the requirements of an extended supervision order, each offence pursuant to s 12, Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’). The maximum prescribed penalty for each offence is five years imprisonment and/or 500 penalty units. There is no prescribed standard non‑parole period.
When sentencing the offender for Count 8, the Court is taking into account one further offence of fail to comply with extended supervision order also pursuant to s 12 of the Act. This Count was the original Count 9 on indictment.
The offender pleaded guilty to each count on the indictment on 7 May 2021 at the Gosford District Court. It is agreed between the parties that the appropriate discount for those matters for the plea of guilty is 10%.
The offender is also being sentenced for three offences on a s 166 certificate of fail to comply with extended supervision order, also an offence pursuant to s 12 of the Act.
The offender pleaded guilty to each of the s 166 offences in the Local Court. In such circumstances, a discount of 25% will be applied to each of those sentences. The offender has been in custody bail refused since his arrest on 18 August 2020. The sentence imposed today will be backdated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Monteiro

Details

AGLC: R v Monteiro [2021] NSWDC 340
Case: [2021] NSWDC 340
Decision Date: 16 June 2021

CaseChat Overview and Summary

The case of R v Monteiro involved the defendant, who was convicted of multiple offences. The appeal centred on the sentence handed down by the Supreme Court of New South Wales. The defendant argued that the sentence was excessive, taking into account his health issues, the hardship his family would suffer, and the principle of totality. The prosecution maintained that the sentence was appropriate given the nature and circumstances of the offences.

The key legal issues before the court were whether the sentence imposed was excessive and whether the sentencing judge adequately considered the defendant's health issues, family hardship, and the principle of totality. The court needed to determine if the sentence appropriately balanced the need to protect the community, deter the defendant and others, and consider the defendant's personal circumstances.

The court held that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the relevant factors. The court found that the defendant's health issues and family hardship were relevant but did not warrant a significantly reduced sentence. The court also emphasised the importance of deterrence and the need to protect the community, which outweighed the defendant's personal circumstances. The court concluded that the sentence was proportionate to the seriousness of the offences and that the principle of totality had been properly applied. The appeal was therefore dismissed.

Orders

Orders of the court

Aggregate term of imprisonment of 2 years and 8 months with a non-parole period of 2 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Monteiro [2021] NSWDC 340
Hearing dates:	2 June 2021
Date of orders:	16 June 2021
Decision date:	16 June 2021
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Aggregate term of imprisonment of 2 years and 8 months with a non-parole period of 2 years
Catchwords:	HIGH RISK OFFENDERS — Extended supervision orders — Breach of SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality — Form 1 offences — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Health issues — Hardship — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offender’s) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1 Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; NSWCCA 194 Imbornone v R [2017] NSWCCA 144 R v Edwards (1996) 90 A Crim R 510 State of New South Wales v McQuilton(Final) [2019] NSWSC 265 State of New South Wales v Monteiro(aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350 State of New South Wales v Monteiro (Final) [2020] NSWSC 881
Category:	Sentence
Parties:	Regina (Crown) Simon Monteiro (Offender)
Representation:	Counsel: Ms A Betts (Offender) Solicitors: Mr J Murray (ODPP) Mr R Hill (Offender)
File Number(s):	2020/00241035
Publication restriction:	Nil