R v Montgomery (No 3)
[2024] ACTSC 409
•18 December 2024
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 |
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 to comply with the order.6․On 3 February 2024, Mr Montgomery committed offences of driving with a prescribed drug in his oral fluid, unlicensed driving, and using an unregistered and uninsured vehicle. On 31 July 2024, he was sentenced in the Magistrates Court for this offending. He was fined, and a six month good behaviour order was imposed.
7․The breach proceeding progressed through the court system, with Mr Montgomery continuing an imperfect response to supervision. In November 2024, information from a family member of Mr Montgomery was received to the effect that he was experiencing significant mental health challenges and was receiving treatment for this.
8․That there has been a breach of the good behaviour order attached to the suspended sentence is not in contention. I am satisfied this has occurred. Accordingly, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) applies. That is, the Court must cancel the good behaviour order and either (a) impose the suspended sentence, or (b) re-sentence the offender.
9․The prosecution did not, appropriately, press that that the original sentences be imposed. This is because of the subjective circumstances of Mr Montgomery, and in recognition of the non-linear nature of rehabilitation. The subjective circumstances, which I will come to, are also informative as to the appropriate orders on re-sentence. It is relevant to note that the prosecution did seek that Mr Montgomery be re-sentenced in the same terms as the original sentence, with continued supervision, although the prosecution fairly acknowledged the challenges in expecting Mr Montgomery to engage with multiple support service providers.
10․I agree that re-sentence is appropriate in light of the subjective circumstances. The matter is then to proceed to the question of re-sentence.
Re-sentence
11․The subjective circumstances of relevance that I have alluded to are the challenges with his mental health that Mr Montgomery has been experiencing. Importantly, to address this, he is engaging closely with community based mental health supports. He also reports abstinence from substance use since June 2024.
12․Typically, a re-sentence following a finding of a breach warrants a decision on sentence that will be sterner that that originally imposed. This reflects that the prospects of rehabilitation are not as favourable as they may have been considered at the time of the original sentence. It also reflects the notion that a community based opportunity ought not be a “legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved”: DPP v Cooke [2007] NSWCA 2; 168 A Crim R 379 per Howie JA at [23].
13․Mr Montgomery might be regarded as falling within this circumstance, however, his subjective circumstances at the current time are such that sterner sentences are not warranted on re-sentence. I have had regard to the sentencing considerations that informed the previous sentencing decisions and agree with what is observed there in reaching the decision as to the imprisonment imposed. This includes as to the utilitarian value of the pleas of guilty, which I would quantify as appropriately being a reduction in the order of 20 per cent.
14․Upon this re-sentence though, a difference is warranted as to the lengths of the sentences and how the term is to be served. This is because it is appropriate to recognise that Mr Montgomery has now been subject to court oversight since the offending occurred in July 2021. There reaches a point when the justice system resources are being drained for no effect: R v Bennett [2017] ACTSC 104 at [11]. This is an example of such a matter. There is nothing more that the justice system, inclusive of Corrective Services, can realistically do that gives effects to the purposes of sentencing. It remains that terms of imprisonment are the only appropriate ones, but the purposes of sentencing, including punishment, have been to a large extent already fulfilled prior to this re-sentence exercise.
15․The fulfilment of these purposes is in part demonstrated by the breaches themselves. While Mr Montgomery has reoffended, the further offences are significantly less serious than those originally committed. They were committed almost one year after the suspended sentence was imposed, indicative of progress with rehabilitation.
16․Mr Montgomery has significant mental health challenges for which he is receiving supports, from both the mental health system and from family members, to address. At this point, the purposes of sentencing are best met by not impeding that to occur. It is appropriate that Mr Montgomery is no longer subject to supervision, but rather, he simply have the deterrent effect of an order that requires him to be of good behaviour for an additional short period of time.
Orders
17․For those reasons, the following orders are made:
(1)The suspended sentence and good behaviour order made 3 March 2023 is cancelled and Joshua Malachi James Montgomery is re-sentenced.
(2)The conviction of Joshua Malachi James Montgomery of burglary (CAN 8531/2021) is confirmed and he is sentenced to 12 months imprisonment, reduced from 15 months on account of the plea of guilty, to commence on 2 May 2024 and end on 1 May 2025.
(3)The conviction of Joshua Malachi James Montgomery of theft (CAN 8532/2021) is confirmed and he is sentenced to 8 months imprisonment, reduced from 10 months on account of the plea of guilty, to commence on 2 October 2024 and end on 1 June 2025.
(4)The total sentence of imprisonment hereby be suspended from today, 18 December 2024, to 1 June 2025, for a period of 5 months and 15 days.
(5)Joshua Malachi James Montgomery 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) for a period of 5 months and 15 days.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 24 January 2025 |
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