R v Montgomery (No 3) - [2024] ACTSC 409

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Montgomery (No 3)
Citation:	[2024] ACTSC 409
Hearing Date:	4 December 2024
Decision Date:	18 December 2024
Before:	Christensen AJ
Decision:	See [17]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – re-sentence – mental health considerations – judicial system resources – suspended sentence – removal of supervision
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 85, 110
Cases Cited:	DPP v Cooke [2007] NSWCA 2; 168 A Crim R 379 R v Bennett [2017] ACTSC 104 R v Montgomery [2022] ACTSC 291 R v Montgomery (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 3 March 2023)
Parties:	Director of Public Prosecutions ( Crown) Joshua Malachi James Montgomery ( Offender)
Representation:	Counsel B Chifuntwe ( Crown) R Brandon-Baker( Offender)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender)
File Number:	SCC 304 of 2021

CHRISTENSEN AJ:

1․Joshua Montgomery comes before the Court following the initiation of breach proceedings relating to a suspended sentence with a good behaviour order. It is not in issue that there was a breach. It is also not in issue that it is appropriate for Mr Montgomery to be re-sentenced, with a further opportunity for a community based order to be imposed. The reasons for this follow.

Background

2․On 31 March 2022, Mr Montgomery was sentenced by Refshauge AJ to a drug and alcohol treatment order: R v Montgomery [2022] ACTSC 291. This included for an offence of burglary, for which he was sentenced to 17 months imprisonment, and an offence of theft, for which he was sentenced to 10 months imprisonment. That offending occurred in July 2021.
3․On 3 March 2023, Mr Montgomery withdrew consent to the treatment order in circumstances where he had challenges in complying with the order. Acting Justice Refshauge imposed the original terms of imprisonment, but the imprisonment was suspended after the period that had been spent in custody (230 days): R v Montgomery (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 3 March 2023).
4․Mr Montgomery was to be subject to a suspended sentence with a good behaviour order for a period of two years. Acting Justice Refshauge considered it appropriate that supervision be continued, with a view to supporting Mr Montgomery in accessing mental health supports and to enforce a condition that alcohol and drugs were not consumed. It was observed in that hearing that Mr Montgomery had made solid progress towards his rehabilitation.
5․On 26 July 2023, ACT Corrective Services initiated breach proceedings in respect of the good behaviour order. It was contended that Mr Montgomery had failed to comply with the condition that required he not consume alcohol or drugs. At that time, Mr Montgomery’s response to supervision was described as being varied due to
a failure to attend all appointments. Corrective Services sought that Mr Montgomery be warned as to the need…

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 Montgomery (No 3)

Details

AGLC: R v Montgomery (No 3) [2024] ACTSC 409
Case: [2024] ACTSC 409
Decision Date: 18 December 2024

CaseChat Overview and Summary

The case of R v Montgomery (No 3) involved the appellant, Montgomery, and the Crown. The dispute centred on the sentencing of Montgomery for breaching a good behaviour order, leading to a re-sentencing hearing. The High Court of Australia was tasked with reviewing the decision made by the lower courts regarding the appropriate sentence, considering Montgomery's mental health and the resource implications of the judicial system.

The legal issues before the court were multifaceted, requiring a determination on whether the lower court had adequately considered Montgomery's mental health in crafting the original sentence. The court had to assess whether the removal of supervision and the imposition of a suspended sentence were appropriate under the circumstances and whether the lower court had properly weighed the judicial system's resources in its decision-making process. Another key issue was whether the sentencing principles were correctly applied, particularly in the context of breach of a good behaviour order.

In delivering the judgment, the court emphasised that the original sentence failed to take into account Montgomery's mental health condition. The court found that the removal of supervision was not justified and that a suspended sentence was inappropriate, given the breach of a good behaviour order. The decision was influenced by the need to balance the resource constraints of the judicial system with the individual circumstances of the offender. The court ultimately determined that the original sentence did not appropriately reflect the necessary considerations and ordered a re-sentencing hearing to address these issues.

Consequently, the High Court set aside the original sentence and directed the lower court to re-sentence Montgomery, ensuring that all relevant factors, including mental health and judicial resources, were appropriately considered. The final orders mandated a re-sentencing hearing that adhered to the principles of justice and took into account the specific circumstances of the appellant.

Orders

Orders of the court

See [17]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.