Monteiro v R [2014] NSWCCA 277

Monteiro v R [2014] NSWCCA 277

Although grounds 1, 2 and 3 established sentencing error, including Muldrock error in the earlier Court of Criminal Appeal judgment, an incorrect finding that the appellant was on conditional liberty, and error in the treatment of psychiatric evidence, the Court exercised the sentencing discretion afresh and concluded that no lesser sentence was warranted in law. The offending was serious, violent sexual offending in the victim's home after the relationship had ended, committed against a background of domestic violence, with no contrition or remorse, and the original total sentence remained appropriate despite the appellant's mental health evidence and custodial circumstances.

Jurisdiction
Australia
Judgment Date
26 November 2014
Procedural Posture
Criminal Sentence Appeal Referred Following an Application Under S. 78 of the Crimes (appeal and Review) Act 2001 / Court of Criminal Appeal; Sentencing Discretion Exercised Afresh and Appeal Dismissed
Outcome
The appeal is dismissed.
Legal Topics
['muldrock Error' 'standard Non Parole Period' 'conditional Liberty' 'mental Illness in Sentencing' 'sexual Assault' 'domestic Violence' 'aggravating Factors' 'fresh Evidence' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['muldrock Error' 'standard Non Parole Period' 'conditional Liberty' 'mental Illness in Sentencing' 'sexual Assault' 'domestic Violence' 'aggravating Factors' 'fresh Evidence' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal Referred Following an Application Under S. 78 of the Crimes (appeal and Review) Act 2001 / Court of Criminal Appeal; Sentencing Discretion Exercised Afresh and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the earlier Court of Criminal Appeal judgment involved error in the application of the standard non-parole period legislation in light of Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.' 'Whether the sentencing judge erred in finding that the appellant was on conditional liberty at the time of the offences.' "Whether the sentencing judge erred in considering psychiatric evidence relevant to the causal connection between the appellant's mental condition and the offending, moral culpability and general deterrence." "Whether the sentencing judge erred in treating the fact that the principal offence occurred in the victim's home as an aggravating factor." "Whether fresh evidence concerning the appellant's mental condition and custodial circumstances warranted a different sentence." 'Whether the sentence for the sexual assault and the total effective sentence were manifestly excessive or whether some lesser sentence was warranted in law.']

Ratio Decidendi

Although grounds 1, 2 and 3 established sentencing error, including Muldrock error in the earlier Court of Criminal Appeal judgment, an incorrect finding that the appellant was on conditional liberty, and error in the treatment of psychiatric evidence, the Court exercised the sentencing discretion afresh and concluded that no lesser sentence was warranted in law. The offending was serious, violent sexual offending in the victim's home after the relationship had ended, committed against a background of domestic violence, with no contrition or remorse, and the original total sentence remained appropriate despite the appellant's mental health evidence and custodial circumstances.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.']