Monteiro v R; R v Monteiro [2011] NSWCCA 113

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Monteiro v R; R v Monteiro [2011] NSWCCA 113 Hearing dates: 13 September 2010; 15 September 2010; 17 September 2010 Decision date: 17 May 2011 Before: Simpson J at 1; Hoeben J at 253; Price J at 254 Decision: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted, appeal dismissed. (3) Crown appeal dismissed. Catchwords: CRIMINAL LAW - particular offences - offences against the person - sexual offences - aggravated sexual assault - s 61J Crimes Act 1900 - property offences - malicious damage - stealing CRIMINAL LAW - appeal against conviction - trial by jury - unrepresented at hearing of appeal - unreasonable verdict - credibility of complainant - implausibility of account - fresh evidence - finding of guilt open on the evidence - appeal dismissed CRIMINAL LAW - appeal against conviction - trial by jury - conduct of defence counsel - failure to comply with instructions - absence of cross-examination on particular matters - no evidence given by accused at trial - exercise of forensic judgment - no miscarriage of justice - appeal dismissed CRIMINAL LAW - application for leave to appeal against sentence - applicant unrepresented - plea of guilty to property offences - aggravated sexual assault - finding of guilt following trial - offences related - numerous grounds - conditions of incarceration - mental illness - bias - failure to order sentences be served wholly concurrently - fresh evidence - error in finding no evidence of causal relationship between mental illness and sexual assault offence - error in finding offences committed while on conditional liberty - sentences within available range - no manifest excess - leave granted - appeal dismissed CRIMINAL LAW - Crown appeal against sentence - s 5D Criminal Appeal Act 1912 - manifest inadequacy - special circumstances - degree of departure from standard non-parole period - conduct reaching the "cusp" of mid-range of seriousness - evidence of causal relationship between offences and mental illness - error in finding offences committed while on conditional liberty - errors favour applicant on appeal - finding of special circumstances - no manifest inadequacy Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Hili v The Queen [2010] HCA 45 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 R v Birks (1990) 19 NSWLR 677 R v Ehrenburg (NSWCCA, 14 December 1990, unreported) R v Engert (1995) 84 A Crim R 67 R v Gallagher [1986] HCA 26; 160 CLR 392 R v Hemsley [2004] NSWCCA 228 R v Kertebani; Kertebani v R [2010] NSWCCA 221 R v Smith [1987] 44 SASR 587 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Willard [2001] NSWCCA 6; 120 A Crim R 450 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Texts Cited: Halsbury's Laws of England, 4th ed, Vol 3(1) Howie and Johnson, Criminal Practice and Procedure NSW, Butterworths Category: Principal judgment Parties: Simon Monteiro (Applicant/Respondent) Regina (Respondent/Applicant) Representation: Counsel: In person (Applicant/Respondent) N Noman (Respondent/Applicant) Solicitors: Not applicable (Applicant/Respondent) S Kavanagh (Solicitor for Public Prosecutions) (Respondent/Applicant) File Number(s): 2008/8845 Decision under appeal Date of Decision: 2009-04-09 00:00:00 Before: Norrish DCJ File Number(s): 2008/8845