R v Montgomery
[2022] ACTSC 291
•31 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Montgomery |
Citation: | [2022] ACTSC 291 |
Hearing Date: | 25 March 2022 |
DecisionDate: | 31 March 2022 |
Before: | Refshauge AJ |
Decision: | 1) Joshua Montgomery be convicted of burglary and sentenced to 17 months imprisonment to commence on 15 August 2021 and expire on 14 January 2023. 2) Joshua Montgomery be convicted of theft and sentenced to 10 months imprisonment to commence on 15 October 2022 and expire on 14 August 2023. 3) Joshua Montgomery be convicted of failing to comply with public health directions and required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months, commencing today and expiring on 30 March 2023, and Joshua Montgomery be required to pay a fine of $200 within 12 months. 4) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Joshua Montgomery from today, 31 March 2022, and ending on 14 August 2023 (16 months and 15 days) in respect of the primary offence of burglary (CAN 8531/2021) of which he has been convicted and for which he has been sentenced to 17 months imprisonment. 5) That Order be extended to the offence of theft (CAN 8532/2021) of which Joshua Montgomery has been convicted and for which he has been sentenced, and which is an associated offence of the primary offence. 6) It be noted that convictions for the primary offence and the associated offence have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 7) The custodial part 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, 31 March 2022, until 14 August 2023. 8) 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) Joshua Montgomery be directed to complete the Detention Exit Community Mental Health Outreach Program unless agreed otherwise by any member of the Treatment and Supervision Team; (c) Joshua Montgomery 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 (d) Joshua Montgomery comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 9) Joshua Montgomery be directed to appear in Court in person on Friday 1 April at 11:30 am. 10) Joshua Montgomery be directed to attend the Court Registry before he leaves the Court precincts 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 – Burglary – Theft – Failing to Comply with a Public Health Direction – Subjective Considerations – Rehabilitation – Mental Health – Drug and Alcohol Treatment Order Application – Application Successful |
Legislation Cited: | Children and Young People Act 2008 (ACT) Chief Health Officer of the Australian Capital Territory, Public Health (Lockdown Restrictions) Emergency Direction 2021 (No 2) (NI2021-488, 14 August 2021) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12A, 31, 33, 34, 35, 46J, 46K, 80S, 80W, 80Y |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Beniamini v Craig [2017] ACTSC 30 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | Director of Public Prosecutions ( Crown) Joshua Malachi James Montgomery ( Offender) |
Representation: | Counsel E Priestly, C Muthurajah ( Crown) A Doig ( Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Andrew Byrnes Law Group ( Offender) | |
File Numbers: | SCC 303 of 2021 SCC 304 of 2021 |
REFSHAUGE AJ:
Introduction
A special regime is applicable for the sentencing of juvenile defendants, as set out in the Children and Young People Act 2008 (ACT) but, while those principles are not applicable to the sentencing of young adults, youth and immaturity remain mitigating factors in sentencing offenders who are young adults. See R v Tonna (No 2) [2020] ACTSC 362 at [44]–[47].
The reasons for this are set out helpfully in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at 53–5; [34]–[36]. In summary, they are that:
1)young offenders, being immature, are therefore more prone to ill-considered and rash decisions;
2)courts recognise the potential for young offenders to be redeemed and rehabilitated because of their stage of emotional and mental development so that they may be open to influences to positively change them; and
3)courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender is more likely to impair rather than improve the offender's prospects of successful rehabilitation.
Despite the second reason above, the experience in the Drug and Alcohol Sentencing List gives rise to some caution, as a number of younger offenders have had their Drug and Alcohol Treatment Orders (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), cancelled because of non-compliance. See R v Tonna (No 2), R v Massey (No 4) [202] ACTSC 211, R v Blackburn (No 3) [2021] ACTSC 337.
Nevertheless, each case must be determined on its merits as individualised justice requires it. See Police v Cadd (1997) 69 SASR 150 at 166; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [147]–[167].
Now appearing before the Court for sentence on three serious offences is Joshua Montgomery, who has pleaded guilty to offences of burglary, theft and failing to comply with a public health direction.
On sentence, the Crown tendered, without objection, its Crown Tender Bundle, which included the required cover sheet, the committal and transfer documents, an Agreed Statement of Facts and Mr Montgomery's Criminal History.
Also included were the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act. These were a Drug and Alcohol Treatment Assessment Report dated 15 March 2022, prepared by ACT Corrective Services, a Drug and Alcohol Sentencing List Suitability Assessment Report dated 17 March 2022, with an attached Case Plan of Alcohol and Drug Services, and a Drug and Alcohol Forensic Mental Health Assessment Report dated 17 March 2022.
The only challenge to the contents of that evidence was that the number of days spent in custody prior to sentence was said by Mr A Doig, counsel for Mr Montgomery, to be 223 days, not as stated in the cover sheet to the Crown Tender Bundle. Ms E Priestley, counsel for the Crown, readily agreed with that figure.
Otherwise, there were no challenges to the contents of any of this evidence.
Two days before sentence, Mr Montgomery's lawyer emailed a copy of a letter from Wellways Australia, a not-for-profit mental health and disability support program, which conducts a Detention Exit Community Mental Health Outreach Program. It gave a brief description of the program and advised that Mr Montgomery had been accepted into the program.
Subsequently, through the helpful officers of ACT Corrective Services, a further letter was received from Wellways Australia relating to the integration of their intensive program with a Treatment Order, should the Court be inclined to make such a Treatment Order.
There was no objection to the tender of either document, nor challenge to their contents.
Both counsel, however, provided comprehensive, appropriate and helpful written submissions supplemented by valuable oral submissions. From this material, the Court makes the following findings.
The facts
At 12:15 pm on 20 July 2021, Joshua Montgomery entered residential premises in Rivett, ACT. He had no permission to be there. He stole a large quantity of property, including perfume, eye cream, a car key, a marriage affirmation book, jewellery, electronic items, a watch and foreign currency. The property was valued at $30,000. It was not clear on the evidence that anyone was in the residence at the time.
These were the facts supporting the charges of burglary and theft.
The events were captured by a CCTV system set up in the house, which also alerted the owner to the intrusion and he arranged for the police to be called. The police arrived, but Mr Montgomery had left. He was, however, clearly shown in the CCTV footage.
Later, police attended at Mr Montgomery’s address, as they knew where he lived, and saw a pair of shoes, consistent with those worn during the burglary, and a bottle of perfume consistent with the one stolen.
They obtained a search warrant, which they executed on 15 August 2021 and seized items stolen in the burglary. The items seized were not listed in the evidence.
Later that day, they located Mr Montgomery. At the time, the Chief Health Officer’s Public Health (Lockdown Restrictions) Emergency Direction 2021 (No 2) (NI2021-488, 14 August 2021) was in force. It required all persons outside their residence to carry and wear a face mask. Mr Montgomery was not doing so at the time.
He was arrested and searched. A mobile phone was found in a pocket of his tracksuit pants. It showed that he had received a text advising him that he was a close contact of a person infected with the virus, COVID-19, so that he was required to be in quarantine and isolate himself. Mr Montgomery said that he had seen the message.
At the time, the Chief Health Officer’s Public Health (Diagnosed People and Close Contacts) Emergency Direction 2021 (No 1) (NI2021-42, 9 July 2021) required a person who was notified that he or she was a close contact of a person infected with that virus to quarantine by remaining in their residence and only leave for COVID-19 testing or in an emergency.
These facts founded the charge of failing to comply with the public health directions.
Mr Montgomery had a telephone conversation with his partner subsequently, in which she offered to write a statement saying that he was with her and her mother “when everything happened”, presumably referring to the burglary and the theft. He appeared to agree with the proposal. There was no charge of attempting to pervert the course of justice or attempted perjury, so it is not clear how this evidence is to be assessed, except, as it was not challenged, it does show some bad light over Mr Montgomery. The fact is, however, none of this speculation eventuated to any action and he ended up pleading guilty.
It appears not to aggravate any of the offences, other than perhaps to deprive him of some discount for his plea of guilty, as it may have delayed it. See RDS v Luplau [2021] WASC 280 at [51].
The proceedings
As noted above (at [20]), Mr Montgomery was arrested on 15 August 2021. He appeared in the ACT Magistrates Court the next day and was charged with burglary, theft and failing to comply with public health directions. He applied for bail, but it was refused and he was remanded in custody.
On the next occasion in Court, on 6 September 2021, he pleaded not guilty to all of the offences. He remained in custody and, in fact, has remained in custody since that time. A Brief of Evidence was prepared by the prosecution. His lawyers made representations to the Director of Public Prosecutions.
On 13 December 2021, however, he indicated that he would be seeking a referral to the Drug and Alcohol Sentencing List of the ACT Supreme Court, which would, of course, require a plea of guilty, as well as an assessment of his eligibility and suitability.
On 20 August 2021, he entered pleas of guilty to each of the offences, and he was committed to this Court for sentence for the burglary and theft. The charge of failing to comply with a public health direction was transferred to this Court.
He was assessed on 4 February 2021 as eligible for a Suitability Assessment (as to which process, see R v McHughes [2021] ACTSC 92 at [6]–[7]), and, on being found eligible, Suitability Assessments were ordered and a date was set for sentence.
The sentencing proceedings were heard on 25 March 2022 and adjourned to today, 31 March 2021, for the imposition of sentence.
The offences
To achieve the just and adequate sentence required of a court sentencing an offender for breaches of the criminal law, it is required that various factors identified as relevant must be considered. Some are set out in legislation, such as the Sentencing Act; some are set out in the common law, namely the law expressed by the courts when imposing sentences or determining appeals from them.
In this Territory, the Sentencing Act sets out in s 33 certain matters which the Court must consider, and in s 34 certain matters that it must not consider, at least so as to increase the sentence that would otherwise be imposed.
In broad terms, the factors set out in s 31 relate to the offence and the offender, which are the considerations generally identified in the common law (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 612; [77]), but also the interests of the victim and wider societal concerns.
In respect of the offence, s 33(1)(a) of the Sentencing Act requires the Court sentencing an offender to have regard to the nature and circumstances of the offence. This requires the Court to find the facts of the offence, which has been done above. The High Court has emphasised in many cases, including as long ago as Ibbs v The Queen (1987) 163 CLR 447 at 451–2, that the courts must have careful regard to the maximum penalty prescribed by the legislature, as that is the legislative mandate. It provides the legislature's assessment of the comparative seriousness of the offence and, when all of the relevant factors are considered, it provides a yardstick.
In addition, the courts have, over time, identified factors that aggravate or mitigate the particular version of the offence actually committed by the offender, which is, in fact, part of the factors required to be considered by s 33(1)(za) of the Sentencing Act, namely current sentencing practice.
Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of 14 years imprisonment, a fine of $224,000 or both. It is, thus, a very serious offence, though not the most serious in the criminal calendar.
After consideration of the relevant authorities, the Court has set out in R v Hancock [2021] ACTSC 52 at [33] the factors that have been identified as assisting the assessment of the seriousness of the instant offence. It is not necessary to repeat all of those, but to address the factors that apply here.
The premises were residential premises, which makes the offence more serious, though it is not clear from the evidence that anyone was present at the time. The property taken was very valuable, but that will also be addressed in the consideration of the theft charge and Mr Montgomery must not be punished twice for the same criminality.
It does not appear from the evidence that there was any premeditation or planning, nor that the premises were targeted. Mr Montgomery explained to the author of the ACT Corrective Services Suitability Assessment that “he attributed his offending behaviour to the use of illicit substances which… motivated him to commit the offences in order to continue funding his dependence on them”.
It was, accordingly, a relatively unremarkable version of the serious offence. It is not required to give some quasi mathematical assessment of the seriousness of the offence, for the reasons set out in Massey v The Queen [2022] ACTSC 3 at [47]–[55].
Theft is an offence prohibited by s 308 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, accordingly, regarded also as a very serious offence, though not as serious as the invasive, but also dishonest, offence of burglary.
The principal factor to assess the seriousness of the actual offence is the value of the property stolen. As pointed out in R v Forrest (No 2) [2017] ACTSC 83 at [72]–[73], this is not just monetary value, but includes personal or sentimental value such as, in this case, the marriage affirmation book, or perhaps the jewellery, and also what might be stored on the electronic devices, such as photographs of sentimental value. Similarly, the electronic devices may have stored information such as contact details or important documents, the loss of which could cause inconvenience, indeed possibly financial loss, also relevant to the value of the property taken in the offence.
In this case, the monetary value of the property was provided in the Agreed Statement of Facts, which is regrettably not always provided. No Victim Impact Statements were, however, provided, so it cannot be determined whether the other sentimental or inconvenience values were experienced as losses by the victims in this case, other than in the most general terms, which, of course, the Court can take into account.
As is regularly appropriate, there should be a significant concurrency between the sentences for the burglary and the associated theft, as noted in R v McMahon [2014] ACTSC 280 at [94].
Failing to comply with a public health direction is a crime under s 120(4) of the Public Health Act 1997 (ACT) and is punishable by a maximum fine of $8,000.
The public health directions in this case were given because of the pandemic caused by the COVID-19 virus, which was quite contagious and resulted in many serious hospitalisations and deaths. As the WA Court of Appeal said in Johnson v Vander Sanden [2021] WASCA 27; 57 WAR 209 at 211; [2], “The public interest underlying [such emergency directions] is obvious and requires no elaboration”. In particular, not wearing a mask when required is serious, especially if the offender interacts with others (RDS v Luplau at [68]).
In this case, Mr Montgomery was required to quarantine and he did not do so. No reason was given for him leaving his residence. No reason was given for him not having with him, and failing to wear, a mask.
Subjective circumstances
The second major consideration for a court sentencing an offender is the subjective circumstances of the offender. As noted above, this is part of the common law, but it is also noted in a number of the paragraphs of s 33(1) of the Sentencing Act.
Mr Montgomery was born 20 years ago, the younger of the two children born to his parents. He had a positive childhood, though it was austere. His mother used alcohol, but there was no family violence or drug use at home.
His parents separated when he was in late primary school, and he found that this significantly affected him, probably leading to some of his behavioural problems. He lived with each of his parents from time to time during his teenage years, except when he was in custody. His mother did not re-partner, but his father did. He appears to have had some difficulties with his parents, but his relationship with them has improved recently and he also gets on well with his sister. His mother has agreed to have him live with her when he is released from custody.
Mr Montgomery left school after Year 10 when he was 16 years old. He had a difficult time at school with, at least on his estimate, about 20 occasions of suspension and finally being expelled.
He has had little employment, being some labouring work, but he was unemployed before his remand in custody.
He has a current partner with whom he has been in a relationship for about 12 months, but a woman who regrettably has herself issues with drugs and who has been in custody herself.
Mr Montgomery reports being in good physical health, although he appears to have suffered some fractured bones as a juvenile.
He has, however, significant mental health challenges. He has had various diagnoses, including Attention Deficit Hyperactivity Disorder, bipolar affective disorder, schizoaffective disorder, schizophrenia, substance abuse disorders and a personality disorder. He suffers from hallucinations, including delusions and auditory hallucinations, intrusive thoughts of a violent nature, emotional dysregulation and suicidal ideation. He has engaged in incidents of self-harm, including when in custody.
His use of alcohol and other drugs commenced reasonably early in life. He has been drinking alcohol since he was 15 years old, but he is not a heavy drinker, consuming alcohol about once or twice a month.
He began smoking tobacco when he was 15 years old and he is now a daily smoker of about 20 “rollies” a day. He has also used cannabis, especially between the ages of 15 and 18, though there are records of more recent use. He realises, however, that it has a bad effect on his mental health, making him psychotic, paranoid and stressed, and so has tried to moderate its use.
His main drug of choice is methamphetamine, which he first used when he was 17 years old. He transitioned to injecting it after about a year and his use gradually increased.
He has also used MDMA/Ecstasy about once a month, though he used it the day before he committed the current offences.
Despite his denial, his records show that he has used cocaine, though not to a significant extent. He has also used heroin, including recently, but it is not a main drug of choice. He has used non-prescribed benzodiazepines and analgesics when in high school. He has also referred to more recent use, including injecting buprenorphine two weeks prior to his assessments for eligibility and while in custody because, he says, of boredom and depression.
He also used hallucinogens in his younger days, but not recently.
Mr Montgomery has had some very limited alcohol and drug treatment. He has, while in custody, completed the Solaris Therapeutic Community Program. He has had some youth drug and alcohol counselling. He entered the residential drug rehabilitation program at the Triple Care Farm, but remained for only two days before he was discharged.
Mr Montgomery has a very depressing criminal history [redacted for legal reasons].
He committed his first five offences as an adult 19 days after he turned 18 years of age (see [redacted for legal reasons]). These offences were burglary, aggravated robbery, attempted aggravated robbery, theft and common assault. He was sentenced to a total of 19 months and six days imprisonment with a non-parole period of 14 months.
Before this, he was first sentenced to a period of full-time custody in April 2019, and since then he has spent considerable periods in custody, including, on one estimate, three and a half out of the last four years. When on parole, he was subject to disciplinary action on a number of occasions, but successfully completed his parole. He has had a mixed record of compliance with community-based orders. Since re-entering custody, he has had seven disciplinary actions.
Mr Montgomery complied with the assessment program, but appeared at times disengaged and gave superficial answers. This may have been a result of his complex mental issues. He was, however, polite, cooperative and provided appropriate responses to questions.
Current sentencing practice
While current sentencing practice has, to some extent, been addressed above in relation to the seriousness of the offences, part of this factor is an additional consideration, namely the actual sentences imposed in recent times and why they were so imposed.
This can be addressed by reference to the ACT Sentencing Database. A reference to such statistics has significant limitations, though it does provide relevant information. It does not, of course, provide limits or boundaries for the sentence to be imposed.
While bearing in mind the limitations, which include that many relevant factors are not able to be accessed through the statistics on the Database, such as whether a burglary was in residential, commercial or other premises, it is to be noted that approximately 80% of the sentences of burglary imposed in the Supreme Court are between 15 months and two years and nine months imprisonment, though sentences of less than six months and up to six years imprisonment have been imposed, as well as Good Behaviour Orders and partially or fully suspended sentences.
The other way in which current sentencing practice can be assessed is by considering comparable cases. The Crown provided a table of six sentences for burglary that have been imposed by this Court since 2016. That was a very helpful table and all of the cases have been considered.
The most comparable sentence, perhaps, was that imposed in R v Horan [2020] ACTSC 189 where the offence of burglary was committed by a 20 year old on residential premises and significantly valuable property was stolen. There was, however, a forced entry and the premises were ransacked, unlike this case, but Mr Horan did not have a significant criminal history. He was sentenced to 18 months imprisonment for burglary, nine months imprisonment for the theft, and four months imprisonment for the property damage. In both that case and in this case, pleas of guilty were entered in the ACT Magistrates Court.
In R v Horan, a victim impact statement was tendered, which showed significant harm to the victims, including children of the occupant's family. In both that and this case, the offender sought rehabilitation. It does seem that the sentence of Mr Horan was, for the circumstances, not a particularly severe one, although it was severe for a young man.
Of course, no other cases are precedent. The law does not regard a sentence as a binding precedent (Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 545; [79]).
For offences of theft, the Sentencing Database does not show the value of the property stolen, so a central factor is not recorded. The cases referred to by the Crown did make reference to offences of theft and, of course, the sentencing remarks, regrettably not always linked to the Database, do describe whatever the evidence shows.
Finally, there are very few offences occurring under the Public Health Act, and there is no relevant information in the Database.
Consideration
The objects of the Sentencing Act are set out in s 6, which then sets out in s 7 the purposes for which a sentence may be imposed. These are important legislative mandates to which a court sentencing an offender must have regard.
Thus, the promotion of a respect for the law, and the maintenance of a just and safe society are important, as well as the individual justice provided to the particular offender. The Sentencing Act provides for a range of sentencing options, many more than were previously available to the courts, and these must be considered in as flexible a way as is consistent with the other objectives.
In this case, the purposes of the sentence will meet the purposes set out in s 7 of the Sentencing Act, though some of these point in different directions.
Thus, for example, the serious nature of the primary offence, burglary, which is a severe attack on the safety and wellbeing of the community, must be shown to be unacceptable. Such offending conduct must, in the sentence, be denounced, and Mr Montgomery must be held accountable for committing it.
Further, Mr Montgomery has clearly not responded to earlier sentences for similar offending. Thus, punishment is important, both to show that the conduct is unacceptable and to respond to his continued offending. It is important not to punish him again for that earlier offending, though such offending will elevate the seriousness of the current offending and thus be properly reflected in the sentence (R v Guy [2022] ACTSC 373).
This will also reinforce the norms of society, with which the criminal law requires the community to comply and which promote not merely a safe, but a productive and harmonious, community. A just and adequate sentence will reinforce to others inclined to commit the same or similar offences that not only are they unacceptable, but there will be severe consequences for their commission.
Similarly, the sentence must encourage Mr Montgomery not to commit these, or indeed further, offences, and so deter him. It must also be considered how best to achieve his rehabilitation, for this is the surest way to stop him offending and therefore the best protection of the community, which is a significant objective.
The harm that victims suffer from such offences must also be recognised. While the evidence is unclear, it does seem that at least some of the property stolen by Mr Montgomery was recovered, including some of the electronic items. While this reduces the harm suffered by the victims, unjustified and illegal incursions into their homes bring uncertainty and often fear for their safety for all occupants.
Mr Montgomery did plead guilty to the offences in the ACT Magistrates Court before he was committed to this Court on them. Of course, the offences could have been dealt with in the Magistrates Court under s 375 of the Crimes Act 1900 (ACT). Nevertheless, while the utilitarian value is moderated because the plea was not at the earliest date and the prosecution were requested to prepare and serve a Brief of Evidence, and the case against Mr Montgomery was strong, but perhaps not overwhelming, he should, under s 35 of the Sentencing Act, be afforded a significant reduction as a result of the plea on the sentence otherwise imposed.
Mr Montgomery clearly has challenges with his mental health. While the Court was not favoured with a formal report from a treating or consultant psychiatrist or a psychologist, the Suitability Assessment from Forensic Mental Health Services was prepared by a psychologist. It described Mr Montgomery as having a “complex mental health history”, and diagnoses of significant mental health impairments. Though he had crisis presentations, he has also had periods of stability, but his mental state was said to have deteriorated recently, no doubt negatively affected by his incarceration, during which he has engaged in self-harming behaviours. It recommends treatment for his drug dependency as being a positive way to address his situation.
Though neither counsel expressly submitted so, it does appear that Mr Montgomery's moral culpability is somewhat lessened because of his mental health, as outlined in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32].
Account must be taken of the nature and circumstances of the offending he has committed and that has been described in these reasons. Account must also be taken of his personal circumstances, as have also been described. The other matters referred to earlier, including his plea of guilty, his mental health and current sentencing practice, are also to be taken into account.
Having considered all of the alternatives, however, no other penalty is appropriate and the Court must impose a sentence of imprisonment: s 10 of the Sentencing Act. Of course, this does not apply to the offence of failing to comply with a public health direction, for which no term of imprisonment is prescribed.
There are two offences for which Mr Montgomery is liable to be sentenced to imprisonment, and a sentence must be imposed on each (see Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623–4; [45]).
It is important that the Court, when imposing them, considers whether the sentences should be wholly or partly concurrent. As noted above, the sentences for burglary and its associated theft are ordinarily made concurrent, but that is always a matter of discretion (see Beniamini v Craig [2017] ACTSC 30 at [169]–[174]).
In this case, however, the substantial value of the property stolen does require a significant degree of cumulation, despite being part of the one course of conduct, which of course, in itself, can point in two directions.
Nevertheless, the Court must then consider the total length of the sentence arrived at to ensure that the principle of totality is respected and that the sentence, as a whole, is not excessive and adequately reflects Mr Montgomery’s criminality, but not more than that, and will leave him with a realistic prospect of reform and the possibility that, when released, he may take an effective and productive part in the community and reach his goals.
While this may be seen by some as leniency, the total sentence must be just and adequate, but justice requires that it not overwhelm Mr Montgomery's growing awareness of his need for rehabilitation and must help with that. The sentence must be proportionate to his culpability and the effect it has had on the victims and the wider community, such as the effect that burglary and theft, for example, have on insurance availability and premiums, but it must also respect the value of his reform to the community and to himself.
[His Honour then spoke directly to the offender]
Mr Montgomery, please stand.
The Court orders as follows:
1)You are convicted of burglary and sentenced to 17 months imprisonment to commence on 15 August 2021 and expire on 14 January 2023.
2)You are convicted of theft and sentenced to 10 months imprisonment to commence on 15 October 2022 and expire on 14 August 2023. Had you not pleaded guilty, you would have been sentenced to 14 months imprisonment. That sentence is cumulative as to seven months on the sentence for burglary.
3)You are convicted of failing to comply with public health directions and required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months, commencing today and expiring on 30 March 2023, and you are required to pay a fine of $200 within 12 months.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Montgomery has now been sentenced to a term of 17 months imprisonment for the burglary he committed on 20 July 2021 as part of a total sentence of two years imprisonment, with a Good Behaviour Order and a fine for another offence.
He has asked that a Treatment Order be made. In order to assess that, the Court must determine when he is eligible and whether he is suitable for such an Order to be made.
The eligibility requirements are set out in ss 12A and 80S of the Sentencing Act. The requirements of s 12A must first be assessed.
Mr Montgomery has pleaded guilty to the offences of burglary and theft, both of which are eligible offences. He has been sentenced to a term of imprisonment for the burglary offence, being the primary offence, and for both offences to a total sentence, both of which sentences are within the limits of eligibility of at least one year and not more than four years imprisonment. In addition, though he is subject to a Good Behaviour Order and a Fine Order, he is not subject to any other sentencing order within the meaning of s 12A, as these are not such orders.
The Suitability Assessments show, without challenge, that Mr Montgomery has a long history of drug dependence, and in particular, in that of Forensic Mental Health Services, that he suffered from a substance use disorder which meets the requirement that he is dependent on a controlled drug, primarily methamphetamines. In addition, he has said, again without challenge, that he committed the current offences while under the influence of controlled drugs and in order to fund his dependency. There is no reason to reject this and it is to be accepted. This, then, satisfies the requirement that his offending was substantially contributed by his dependence.
Mr Montgomery has lived in Canberra all his life and there is no indication that he will live elsewhere, thus meeting the requirements that he will remain in the ACT for the period of his sentence.
Mr Montgomery has signed a form consenting to the making of a Treatment Order. This form also attests that he has had sufficient information to make a balanced judgement as to whether to give that consent, that he has had the opportunity to ask any questions about the order and has had any questions answered. He appears to have understood any answers given.
Accordingly, subject to his suitability, he is eligible to have a Treatment Order made.
The Suitability Assessments have been, as usual, expertly, comprehensively and thoughtfully prepared and were received in evidence by the Court and considered carefully. They have all recommended that, subject to him having suitable accommodation, he is suitable for a Treatment Order to be made. He now has that accommodation with his mother, who was present in Court for the sentencing proceedings, and that accommodation appears suitable. Therefore, a Treatment Order is suitable for him.
The Care Plan for Mr Montgomery has been carefully prepared and was tendered to the Court. It is clearly appropriate for Mr Montgomery. However, the residential drug rehabilitation program proposed in that Care Plan is not currently available. Nevertheless, there are, not only with the Wellways Australia Program, but also other programs available under a Treatment Order, appropriate treatment options for the administration of a Treatment Order. The Wellways Program will, in addition, particularly address his mental health which is also of significance.
Thus, there are appropriate arrangements for the administration of a Treatment Order.
There are no reasons why the sentence should not be served by a Treatment Order, nor why the sentence of imprisonment should not be suspended so that the Treatment Order may be served.
There are no indicators of unsuitability, as set out in Table 46K of the Sentencing Act, that need to be addressed.
Accordingly, it is appropriate that a Treatment Order be made.
The Treatment Order will commence before the date of imposition of the sentence, however, under a Treatment Order, a sentence must be wholly suspended. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], this does not prevent a Treatment Order being made.
[His Honour again spoke directly to the offender]
Mr Montgomery, please stand again.
The Court orders as follows:
4)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you from today, 31 March 2022, ending on 14 August 2023 in respect of the primary offence of burglary (CAN 8531/2021) of which you have been convicted and for which you have been sentenced to 17 months imprisonment.
5)That Order be extended to the offence of theft (CAN 8532/2021) of which you have been convicted and for which you have been sentenced, and which is an associated offence of the primary offence. It be noted that the offence of failing to comply with a public health direction does not carry a sentence of imprisonment and therefore it is not an eligible and relevant offence.
6)It be noted that convictions for the primary offence and the associated offence have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
7)The custodial part 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, 31 March 2022, until 14 August 2023.
8)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) You are directed to complete the Detention Exit Community Mental Health Outreach Program unless agreed otherwise by any member of the Treatment and Supervision Team;
c) You 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; and
d) You comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
9)You are directed to appear in Court in person on Friday 1 April at 11:30 am.
10)You are directed to attend the Court Registry before you leave the Court precincts 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.
Mr Montgomery, that is the sentence, and that is a lot of words. You have heard what I have said and much of it is about what you did and who you are. I hope you understand that these were serious offences, particularly with regard to your Criminal History, which is very depressing. If you keep going like you have been, and, as Mr Doig said, you have spent three and a half years out of the last four years in prison, you will spend a lot more time than that in prison. It's great that, at this young age, you have decided that this is not the way to live.
There is a different life out there for you. There is an opportunity for you to engage in employment, to engage with your family, to have a family yourself, and to live a fulfilling and productive life. If you want to, you have come to the right place.
This Court, and the very expert and competent and committed people that are available through this program, will support you to do that. They will assist you and give you advice about how you may do that, but they will also direct you to do some things from time to time, and if you do not obey those directions, then you will be punished. Sometimes that might be for a short period of imprisonment; sometimes, if it comes to the end of it, we have to cancel the Order and then you have got to go back to spend the rest of the two years in prison.
At the end of the day, however, it can only be done by you. You have got some challenges. Your mental health is a sad situation, but it is something that can be managed. Other people have, and you can too. The Wellways program will hopefully assist you to do that and lead you forward, but it may be that, at some stage, more significant treatment will be required. We can assess that on the way, but if you are committed, then there is every expectation that you will be able to manage your mental health challenges. More particularly, you will be able to manage your drug dependency and go out into the world as a useful and sensible member of our community.
There will be problems on the way. It is not easy. You have been dependent on drugs now for a reasonably long time. It is only five years, but for you that is a quarter of your life, so it is a significant period of time and it is not easy to get out of that. You will always be a dependent person, but you can manage your dependency, as many people do, and go on to live a great life. It will be tough. Do not give up. Overcoming those tough challenges will make you stronger and will make it easier.
The first time you have to say to an associate, and inevitably most of your associates are people in the drug scene, “No”, or, “I don't want to talk to you”, or, “I'm certainly not going to take these drugs from you” will be really hard. It is not easy to say that kind of thing to people that you have knocked around with for a long time, so the first time you say it will be hard. The second time it will be easier.
Hopefully, in due course, and we work on this too, you will be able to get a job, and that will allow you to associate with people who are not in the drug and crime scene and who can operate without seeking drugs.
What is really important and fundamental, however, is honesty. It is important to be honest to us, but it is also important to be honest to yourself. It is very easy to say, “Oh, this wasn't too bad”, when it really was. Confront yourself. That does not mean that you are a bad person. I am sure you are a good person, but you have done some very bad things. You are in a bad space. You need to get the good inner self of you to be dominant and put the bad self behind you.
Another important thing is that you will be required to come back to this Court. We will start that tomorrow. You will come back and you will see how the Court works and you will see what people are required to do. You will go for urinalysis tomorrow, so that will be a start of the program. You will see me or another Judge, but probably me, every Friday for a few months. That is an opportunity for me to see how things are going, to congratulate you if they are going well, and to sanction you if they are going badly.
Some of those sanctions are, at the end of the day, a term of imprisonment. We use a system where you accumulate points. A point represents one day in custody. We usually do not impose time in custody until you have got seven points, but we can from anything from three up to 14. I hope we do not have to do that, but sometimes there is a slippage and sometimes that has to be recognised.
It is really important that when you come into Court, you talk to me about any of the things that you want to raise. You will do that with your Case Managers and they will report to me, and we can discuss some of those and it is really important to be honest with them. However, if there are difficulties, if you are having problems with your counsellor, raise it with me. If you are having any other problems, raise them with me.
As a Judge, I am reasonably powerful. I am not all-powerful. I cannot solve every problem, but it is amazing how the kind of issues that you will deal with in this program can be addressed, either by me making a change to the Order, or by requiring something further, or sending you off to people that might be able to help you. That is really important.
The worst thing you can do is run away. Face up to it. If you use, and I do not want you to use, that is the last thing I want you to do, but if you do, admit that. Come to Court and address that. It will be more serious if you do not and using will not necessarily cancel the whole Order. As I say, I do not want you to do that, but sometimes there are slip ups. Do not use this as an excuse to say, “Oh, well, it's only a slip up. His Honour won't mind about that”. You will find that I do mind and I do take it seriously.
Certainly, if things get tough, if you find you are committing further offences or using and so on, do not run away. Come back and we will see what can be done. We can, usually, do something. Sometimes it requires a further period in prison. Sometimes, unfortunately, it requires the cancellation of the Order, bringing it all to an end. I hope that will not happen.
It is, in my experience, difficult for you, as a relatively young person at this stage, to work through this program. I have to say the Court has not been hugely successful with young people. I hope you will work with me to stop that trend, to be a young person who will accept this challenge, will accept the need to improve your life and manage it, and we will succeed. I hope that, at the end of the day, I can congratulate you for graduating through the program and know that you will leave drug and crime free and do what you really want to do as a human being, as a member of this community.
So you will get, in a moment, a letter which will set out some of the requirements that you have got about how you make contact with people. You need to keep contact with your Case Managers and your counsellors. If there are problems, let them know. Turn up for your appointments. Turn up for your urinalysis. Turn up for Court. Do not avoid those obligations and take the assistance and advice that will be offered to you and run with it. The results will, you will find, be very good for you and make you feel much better about yourself than what you are doing currently.
I wish you very good luck. I will see you tomorrow. We will probably have a very brief conversation then, but you will be able to see how the system works and then we will see you thereafter.
You may be seated.
| I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 9 January 2023 |
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