![]() |
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT |
Last Updated: 2 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
|
R v Monaghan
|
Citation:
|
|
Hearing Date(s):
|
4 June 2015
|
Decision Date:
|
12 June 2015
|
Before:
|
Refshauge ACJ
|
Decision:
|
1. Jonathon Monaghan be convicted of aggravated robbery on 17 January 2014. 2. Jonathon Monaghan be sentenced to three years and nine months imprisonment to commence on 2 June 2016 that is to be cumulative as to 9 months on the sentences he is already serving. 3. A non parole period be set to commence on 2 March 2013 and to end on 1 September 2016. |
Category:
|
Principal Judgment
|
Catchwords:
|
CRIMINAL – Practice and procedure – Sentencing –
Aggravated Robbery – Extensive criminal record – Offender
seeking
rehabilitation – Totality – Importance of parole
|
Legislation Cited:
|
Crimes Act 1900 (ACT), s 334(2)(a)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1), 66 Criminal Code 2002 (ACT), s 310 |
Cases Cited:
|
Allred v The Queen [2015] ACTCA 21
Ashdown v The Queen
Markarian v The Queen (2005) 228 CLR 357 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Jajou [2009] NSWCCA 167; (2009) 196 A Crim R 370 R v JM [2014] ACTSC 380 R v Monaghan (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 183 of 2012, 11 December 2012) R v Monaghan (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 183 of 2012, 13 December 2012). Saga v Reid [2010] ACTSC 59 |
Parties:
|
The Queen (Crown)
Jonathon Monaghan (Defendant)
|
Representation:
|
Counsel
Ms J Campbell (Crown)
Ms T Warwick (Defendant)
|
Solicitors
ACT Director of Public Prosecutions (Crown)
JCKB Legal Service (Defendant)
|
|
File Number(s):
|
SCC 168 of 2014
|
1. A person may be charged with a series of offences to some of which he or she pleads guilty but for others of which he or she wishes to challenge the case brought by the prosecution.
2. This can have unintended consequences because the desirability of sentencing offenders as soon as reasonably possible can mean that the hearing of the other offences, for which the offender would normally be sentenced at the same time, can be delayed until the offender is either convicted some time later or changes the entered plea to a plea of guilty because of further evidence showing the likelihood of conviction or otherwise.
3. This can cause difficulties with what is known as the principle of totality, namely, as McHugh J described it in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-8, that is the requirement of “a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”.
4. On 30 October 2014, I sentenced Mr Monaghan on his plea of guilty to an offence of aggravated robbery. That conviction breached a Good Behaviour Order made when he was convicted for two offences of aggravated robbery, three offences of theft and one offence of dishonestly taking and using a motor vehicle without consent.
5. I then sentenced Mr Monaghan to a total period of six years and three months imprisonment from 2 March 2013 to 1 June 2019 and set a non-parole period of three years and six months to commence on 2 March 2013 and to end on 1 September 2016. See R v JM [2014] ACTSC 380.
6. The aggravated robbery for which I then sentenced Mr Monaghan was committed on 27 January 2014. He had, however, also been charged with committing an aggravated robbery on 17 January 2014, to which, at the time, he maintained a plea of not guilty that he had earlier entered.
7. He was arrested on 27 January 2014 for the offence for which I had earlier sentenced him, as referred to above (at [4]), but, in circumstances not entirely clear to me, he was not charged with the current offence of aggravated robbery on 17 January 2014 until 8 May 2014, a long time later.
8. He entered a plea of not guilty and, on 31 July 2014, was committed to this Court for trial.
9. On 17 November 2014, the matter was listed for trial to commence on 7 April 2015. On 12 March 2015, however, Mr Monaghan pleaded guilty to the count of aggravated robbery and he was remanded for sentence to 4 June 2015.
The facts
10. At about 3:30am on 17 January 2014, Khurrum Shahzad Hidayat gave Mr Monaghan and two other people, including Roger Biggs, a lift in his white Kia Cerato motor vehicle to a house in Florey. On the way, Mr Monaghan and Mr Biggs talked about taking Mr Hidayat’s vehicle with the intention of committing robberies.
11. Sometime around 5:00am, Mr Monaghan and Mr Biggs drove away from the Florey house in Mr Hidayat’s car without his consent. Mr Hidayat complained that his car had been stolen and, after he attempted to contact Mr Biggs by telephone, he reported the theft of his vehicle to police.
12. In the meantime, Mr Monaghan and Mr Biggs drove to the Curtin shops. There, they found the complainant, who was withdrawing $130 from the Westpac ATM.
13. As she was walking back to her car, Mr Monaghan and Mr Biggs got out of Mr Hidayat’s car and approached her. Mr Monaghan had a serrated steak knife with him and he called to the complainant, who ignored him and continued to walk to her car. Mr Monaghan called her again and, when she turned towards him, he demanded several times that she hand over her wallet. Concerned about the knife, the complainant handed over her wallet, containing $135 in cash, various cards and her driver licence.
14. Mr Monaghan and Mr Biggs then drove Mr Hidayat’s vehicle away and returned to Florey. When they entered the street of Mr Hidayat’s residence, they noticed police were there. Police had attended in response to Mr Hidayat’s report of the theft of his vehicle. Mr Monaghan and Mr Biggs drove away at high speed but the police did not pursue them.
15. At about 9:30am, police attended at a house in Holt and located, in a recycling bin, Mr Biggs’ mobile telephone and clothes matching the description of those worn by Mr Monaghan and Mr Biggs and which were later determined to contain DNA that matched the DNA of Mr Monaghan and Mr Biggs.
16. At about 11:34am on 19 January 2014, Mr Hidayat’s vehicle was located in Evatt.
17. As noted above (at [7]), Mr Monaghan was charged on 8 May 2014 with the offence of aggravated robbery.
18. He was, at that time, in custody, having been arrested for the second aggravated robbery on 27 January 2014, which was the offence dealt with by me on 30 October 2014, and has remained in custody since then.
Subjective circumstances
19. I set out in R v JM (at [29]-[50]), Mr Monaghan’s subjective circumstances in some detail. I do not need to repeat what I there said. I take those matters into account.
20. In summary, Mr Monaghan was born in 1990. He is an Indigenous man. He was, at the time of the offence, 23 years old. He was adopted at four months and has strong relations with his adoptive family, but also a strong connection to his Aboriginal heritage. He has expressed this connection in art and dance which he has practiced while in custody.
21. He has developmental deficits, especially in the areas of verbal intelligence and adaptive functioning, but has learnt to read and write. He has had no employment but is good at sport. He also has a son who lives with his ex-partner.
22. He has a strong and entrenched drug habit centring on alcohol, cannabis and amphetamines. He has sought to address that in various rehabilitation efforts but it does not appear to have been effective to date, though, as I note below, that may be changing. As I have pointed out in Saga v Reid [2010] ACTSC 59 at [89], drug addiction can take a number of failed attempts before it is successfully managed.
23. He has an extensive criminal record with at least eighty-four offences recorded against his name. [Redacted for legal reasons].
24. [Redacted for legal reasons] The majority are offences of dishonesty but include serious offences such as burglary but also fourteen offences of violence into which category I have put robbery, aggravated robbery and aiding and abetting aggravated robbery offences.
25. He first came to the notice of ACT Corrective Services on 13 August 2008, when he was remanded in custody for an offence of driving in a motor vehicle without consent. That offence was ultimately dismissed on 2 October 2008 under s 334(2)(a) of the Crimes Act 1900 (ACT). Since that time, however, Mr Monaghan has generally been in custody both on remand and under sentence.
26. On 16 March 2012, I sentenced him for a series of fifteen offences, including aggravated robbery, robbery, aggravated burglary, aiding and abetting an aggravated burglary, burglary, theft, damaging property and dishonestly driving a motor vehicle without the consent of the owner. There were, in some cases, multiple charges of the name offence.
27. On 11 December 2012, I sentenced Mr Monaghan for further offences, including aggravated robbery, theft and dishonestly taking a motor vehicle without the owner’s consent, a sentence I had subsequently to amend. See R v Monaghan (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 183 of 2012, 11 December 2012) and R v Monaghan (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 183 of 2012, 13 December 2012).
28. The effect of the sentence was to impose a prison sentence which was suspended on 31 July 2013 for a period of four years and a Good Behaviour Order for four years from 1 August 2013 with a probation condition, a community service work condition and a condition relating to an accommodation program.
29. As noted above (at [4]), I then sentenced Mr Monaghan on 30 October 2014 for the offence of aggravated robbery committed on 27 January 2014 and the breach of the Good Behaviour Order of 11 December 2012
30. I have set out above (at [5]), the sentence then imposed.
31. In the result, as shown in a helpful schedule produced by Mr Monaghan’s counsel, Ms T Warwick, he has been in custody since 2009 for most of the time since then, except for relatively short periods. That is a matter which is relevant to the sentence that I should impose and the length of the sentence, as the Court of Appeal pointed out in Allred v The Queen [2015] ACTCA 21 at [43]- [45].
32. This is a complex sentencing exercise because the offence is a serious one but it was committed shortly before the offence for which I most recently sentenced him.
The offence
33. Aggravated robbery is an offence contrary to s 310 of the Criminal Code 2002 (ACT) and attracts a maximum penalty 2,500 penalty units (that is, at the time, a fine of $350,000) and imprisonment for twenty-five years.
34. The High Court, in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[32], said that the maximum penalty set by the legislature is of great relevance in determining the relative seriousness of the offence. According to this standard, an offence of aggravated robbery is one of the most serious in the criminal calendar. There are, of course, more serious offences.
35. The offence of aggravated robbery is regarded as one which should ordinarily carry a full-time custodial sentence other than in the most exceptional circumstances. In this case, the circumstance of aggravation was the carrying of a knife. It is also to be noted that the offence was committed early in the morning on a woman where it must be accepted that she was very vulnerable. It was serious because it was also committed in company.
36. While simplistically so, the offence involved some pre-meditation and planning, given the discussion about it earlier that morning.
37. The amount of property stolen was not great but, no doubt, caused the victim distress.
38. It is clear that the courts are required to
treat the use of knives as a seriously aggravating factor: R v Jajou [2009] NSWCCA 167; (2009) 196
A Crim R 370 at 388; [72]. The community abhors the use of knives in the
commission of offences: Ashdown v The Queen [2011] VSCA 408
at
[20]
.
39. Nevertheless, the facts do not suggest that Mr Monaghan actually threatened the complainant with the knife; indeed, the inference is that she did not actually see it at the point when she handed over her wallet.
40. The offence was a serious version of robbery, somewhat more serious than the one I described in R v JM, but not the most serious version of the offence.
Progress while in custody
41. On 17 November 2014, Mr Monaghan was accepted into the Solaris Therapeutic Community Program (the Solaris Program) within the Alexander Maconochie Centre (AMC). He participated appropriately but, one week before completion of the Program, was terminated from it after allegedly entering an officer’s station and being involved in a theft of some items. He denied to me that he had stolen the items but said that “jail politics” meant he had to accept the consequences as he has done.
42. He has, however, re-applied to start the Solaris Program again.
43. Although he has applied for employment within the AMC, he is not eligible for employment while participating in the Solaris Program.
44. When received into the AMC on 28 January 2014, a mandatory urinalysis conducted on Mr Monaghan returned a positive result for methylamphetamine, cocaine, cannabis and amphetamines. Two further drug tests, however, have been conducted and no illicit substances have been detected.
Attitude to the offence
45. Mr Monaghan said that the offence was not planned and said he was carrying the knife as he was suffering from drug induced paranoia at the time of the offence. This is not entirely consistent with the Statement of Facts, tendered without objection. Nevertheless, I accept that he did not plan the precise incident. He said that he committed the offence to finance his drug habit and that the money obtained as a result of the offence has been spent on drugs.
46. He did demonstrate some insight into the psychological impact of his behaviour upon the victim and indicated that the Solaris Program had provided insight into how his drug use affected him and the community. He expressed again a wish to change his lifestyle, particularly so that his future contact with his son, now 6 years old, might be regained. He said that such contact is important for him and motivates him to change. It has not, however, been a very successful motivation before now.
47. He has been assessed as at a high risk of re-offending, particularly due to his criminal history, associates, drug and alcohol issues and attitudes. It is accepted, however, that his risk could be reduced if he completes the Solaris Program. I would have thought that completing all but a week would have reduced the risk already and if he is further admitted to the Program this would cement that. Nevertheless, one must be somewhat pessimistic about his future risk.
Evidence of Mr Monaghan
48. Mr Monaghan wrote me a letter which was admitted into evidence and also gave oral evidence. He expressed his own accountability for the “poor and reckless behaviour” he had committed in the community and recognised that the victims should not have to suffer such behaviour. He expressed deep shame and remorse for all his actions.
49. He said that he had had the time to reflect on his past behaviour and on the people he had hurt including his victims, his family and, indeed, himself. He had taken steps to change by entering the Solaris Program and he was proud that, since starting in that Program, he had been abstinent from drugs. In oral evidence to me, he added that he had been offered and refused drugs since then. He acknowledged that it had been difficult but said that if he “couldn’t make change for [himself]”, he “[would] keep hurting people”. As I have noted above (at [41]), he explained the basis on which he had been exited the Solaris Program which he said was due to “jail politics”. While I can understand that, it does not, of itself, minimise the situation. What is more significant, however, is that he has now applied, and been accepted, to re-enter the Solaris Program and proposes to complete it in full.
50. He described some of the strategies he had learnt which he expected would help him to avoid a return to drug use and these appeared to be sensible and likely to be successful if applied. He has also applied for admission to the Transitional Release Centre and that has been supported from within the AMC. He also reported that he had been engaging in some outside work, including horticultural work.
51. He has been distancing himself from his drug associates and this has led to him seeking out support from people who are able to help including some one-on-one meetings with appropriate staff members.
52. While his family have not been visiting him in the AMC, he has kept in touch with them but the family bonds have obviously weakened and will need some attention if they are to be strengthened and provide him with appropriate support when he is released.
53. He is hoping that, if admitted to the Transitional Release Centre, he will be able to spend time with his family. He will, he expects, continue with attendance at Alcoholics Anonymous and hopes to obtain supported accommodation.
54. He acknowledged that, when on the last occasion he was released from custody with a Good Behaviour Order, he had been unable to maintain employment and, when he lost his job after about four weeks, he took no real steps to obtain further employment and began using drugs again.
55. He confirmed that he still had a commitment to see his son, now six years old. He believed that once he was out of prison, he would be able to re-connect with his former partner to allow that, though the details of that were somewhat sketchy.
Victim Impact Statement
56. The victim prepared a Victim Impact Statement. Mr Monaghan has read it. It was also read out in court. It shows, unsurprisingly, that the offence has left the complainant anxious and fearful but she said, frankly, that it was severe for a week or so after the incident and she constantly had the incident running through her mind and fearing for her children as they frequent the Curtin shops.
57. She found it very shocking and more distressing as she felt she should have been safe at the time. She continues to be nervous using automatic teller machines at the local shops and only makes cash withdrawals from a supermarket. She continues to check that there are other people around when she visits the shops and has a heightened awareness and concern for her children’s safety.
58. Reports of incidents in the news trigger her fears and anxiety.
Consideration
59. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is significant, having regard to the nature of the offence and the offending.
60. While the risk of re-offending is assessed as high, this was said to be reducible should he complete the Solaris Program. As I have mentioned above (at [41]), he has completed all but a week of that Program and showed some reasonable knowledge of the skills and strategies learnt during such a program. In addition, he has agreed to undertake the full Program again. Accordingly, it seems to me that specific deterrence plays a lesser role on this occasion than on the last occasion when rehabilitation was entirely prospective. I also accept that his insight, shame and remorse are relatively powerful factors which I should take into account.
61. Nevertheless, some strengthening of consequences is important to encourage Mr Monaghan to remain on the pro-social path. It seems to me that a lengthy period of parole, which, of course, in this jurisdiction, does not count as serving his sentence unless fully completed without breach, is an important reminder, and potential sanction, of the need for abstinence from drugs and avoidance of re-offending.
62. In my view, the evidence before me shows that he has achieved some steps along the road to rehabilitation and this is an important achievement which needs to be affirmed.
63. I have regard to the matters under s 33(1) of the Crimes (Sentencing) Act and, so far as they are known to me, have set them out above.
64. The Crown urged me to impose a sentence of imprisonment. There is no doubt that this is appropriate in the circumstances. The offence was a serious one, the effect on the victim not inconsiderable and, though the long term effects were not severe, they will continue to provide her with some problems.
65. The Crown accepted that it was appropriate to make any sentence of imprisonment at least partly cumulative, both as to the head sentence and as to the non-parole period.
66. Certainly, it seems to me that the sentence should partly be cumulative as to the head sentence. As to the non-parole period, that is more problematic. I shall deal with that below (at [73]).
67. As to sentencing practice, Ms Warwick handed up a table of sentences for the offence of aggravated robbery, including attempts and conspiracies for such an offence. It was generally helpful but gave no clear pattern that was directly relevant to the sentencing exercise here.
68. As I have indicated, it seems to me that this offence was somewhat more serious than the earlier offence of aggravated robbery for which I sentenced Mr Monaghan. The knife was produced at the beginning of the incident, although it was not used in a directly threatening way.
69. I have given anxious consideration to the question of totality of the sentence for this offence with the sentences for the other offences and the interaction between them. It seems to me that, were I to be re-sentencing Mr Monaghan in October last year for this offence also, there would have been some cumulation of this sentence, but perhaps not a very significant one.
70. While I am mindful of the Crown’s submission that some real penalty should be imposed, it does not seem to me that this necessarily means an increase in the non-parole period. There are a number of reasons for this. In the first place, I now have a significant degree of achieved rehabilitation and a more realistic assessment of the challenges that Mr Monaghan faces and his determination and capacity to meet them.
71. Further, it seems to me no benefit is served by dashing Mr Monaghan’s hopes and expectations or his plans for release which is, in any event, still some significant time away. His participation in, and completion of, the Solaris Program will be an important consideration when the Sentence Administration Board comes to consider him for parole and, if the rehabilitation has not continued, then he can expect that his parole may not be granted as easily or as early as he would otherwise expect.
72. In addition, as I have indicated above (at [61]), I consider that a lengthy parole period is important to ensure that Mr Monaghan has the structure and control necessary to encourage his abstinence and freedom from criminal behaviour. It will be difficult for him to return to the community when he has spent a very large part of his adult life in custody and where the risk of institutionalisation will make his re-integration into the community more difficult. I strongly recommend the option of the Transitional Release Centre Program for him to assist in that.
73. Balancing all these matters, it seems to me that there is no necessity for an increase in the non-parole period at this stage.
74. I note that Mr Monaghan has been in custody since these proceedings commenced on 8 May 2015. While that has not been solely in connection with this charge, it seems to me that I should take that matter into account in determining the length of the sentence, though, in the circumstances, not such as to justify a full discount for the period.
75. Mr Monaghan, please stand:
1. I convict you of aggravated robbery on 17 January 2014.
2. I sentence you to three years and nine months imprisonment to commence on 2 June 2016, that is to be cumulative as to 9 months on the sentences you are already serving. Had you not pleaded guilty, I would have sentenced you to 4 years and 6 months imprisonment.
3. The sentences I have imposed revokes the non-parole period under s 66 of the Crimes (Sentencing) Act.
4. Accordingly, I set a non-parole period to commence on 2 March 2013 and to end on 1 September 2016.
[His Honour then spoke directly to Mr Monaghan]
76. Mr Monaghan, that is the formal order I have made. It is probably reasonably understandable to you, but I am obliged to explain it to you. I have added nine months to your head sentence so that the head sentence now is seven years. The non-parole period remains the same and you can apply for parole to be released from 1 September 2016.
77. I have indicated in my remarks that, if you do the Solaris Program, that should be taken into account. If you do not do it, then the Sentence Administration Board is likely to talk to you about delaying your parole until you actually achieve some rehabilitation. The Solaris Program might not be the only way to do that but certainly remaining abstinent and producing urinalyses that show that you have not been using drugs would be a significant way.
78. The parole period is a long period of time – three years and nine months – and bear in mind that if you breach that parole when you are granted parole, you go back for the whole of the balance of the term. You do not serve any of your sentence in the community unless you complete the whole lot of it, so the stakes are very high for you.
79. Now, I think this might be, and I am hesitant, but this might be a turning point for you. It is going to be hard out there because you have not been in the community for much of your adult life. Your family are a bit distant from you. You will have to reconnect with them. It is going to be difficult to get a job and it is going to be difficult to avoid the people who have been your drug mates and your drug associates but, unless you do that and work very hard and perhaps get some ongoing counselling, you are at great risk, through out that three years and nine months, of breaching your parole again and being back inside or committing further offences.
80. I hope that this will be an opportunity, but you need to work hard at it through Solaris, through the TRC and then in the community. Look to your parole officer and other supports, the Canberra Men's Centre, Directions ACT and Karralika to try to make sure that you can stay out of trouble because otherwise it will be back to gaol and, you now know, as you told me in the witness box, that that is not where you want to be.
81. If you put your effort into it and your heart into it, the Court will support you, if you really make a genuine effort, but if you do not then it will be the revolving door in and out of court and in and out of gaol. You do not want that. You do not want that for the relationship with your son. It is going to be hard, it is not going to be easy but if you put your effort into it the Court will support you.
I
certify that the preceding eighty-one [81] numbered paragraphs are a true copy
of the Reasons for Sentence of his Honour Acting
Chief Justice Refshauge.
Associate:
Date: 2 July 2015
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2015/153.html