Monteiro v State of New South Wales (No 3) [2016] NSWSC 1517

Supreme Court New South Wales

Medium Neutral Citation: Monteiro v State of New South Wales (No 3) [2016] NSWSC 1517 Hearing dates: 26 October 2016 Date of orders: 26 October 2016 Decision date: 28 October 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Application for recusal refused. Catchwords: PROCEDURE – recusal application – refused – reasons for refusal Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Monteiro v R [2014] NSWCCA 277 Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 Category: Procedural and other rulings Parties: Simon Monteiro (Plaintiff) State of New South Wales (First Defendant) Attorney General of NSW (Second Defendant) Commissioner of Corrective Services NSW (Third Defendant) Corrective Services NSW (Fourth Defendant) GEO Group Australia Pty Ltd (Fifth Defendant) Justice Health (Sixth Defendant) Legal Aid Commission (Seventh Defendant) Law Access New South Wales (Eighth Defendant) Representation: Counsel: Mr B Kaplan (Third Defendant)

Solicitors: Mr S Montiero (in person) Crown Solicitor's Office (Third Defendant) File Number(s): 2014/311219 Publication restriction: None

Judgment 1. Mr Monteiro, who is presently in custody, commenced these proceedings by summons filed in 2014. On 26 October 2016, at the commencement of the hearing of two motions - one of 20 May 2016 brought by the Commissioner for Corrective Services seeking orders dismissing an earlier motion filed by Mr Monteiro in April 2016 and the other filed by Mr Monteiro on 13 May 2016, seeking to have the hearing of the Commissioner's motion vacated- Mr Monteiro made, and I refused, an application that I disqualify myself. 2. These are the reasons for the refusal of that application. 3. The basis of Mr Monteiro's application was that I was a member of the bench which dismissed an appeal he had brought against his sentence on account of Muldrock error (see Monteiro v R [2014] NSWCCA 277). There I and Gleeson JA agreed with reasons given by Bellew J for the dismissal of the appeal. 4. Additional evidence was received on that appeal. Bellew J described at [100] – [112] part of the case there advanced for Mr Monteiro to be: "100 In oral submissions, counsel for the appellant relied upon a number of matters in support of Grounds 5 and 6, as well as in support of the re-exercise of the sentencing discretion if any other ground was made out. 101 The first matter to which counsel referred was the additional medical evidence which included a further report of Dr Westmore of 29 September 2014. Dr Westmore diagnosed the appellant as suffering from an adjustment disorder with depressed, anxious and angry mood. He reported that the appellant was finding his period in custody "extremely difficult" and concluded that he was not able to diagnose the appellant as suffering from "a serious mental illness, such as a psychotic condition or a serious Mood Disorder such as Major Depressive Disorder or Bipolar Affective Disorder." He was unable to pass comment on any relationship between the appellant's mental state and his offending. 102 Dr Westmore also said: "He is a man who had a number of pre-existing psychological problems before he came into custody and, in my respectful view, the custodial experience has not actually assisted him resolve (sic) any of those problems. Indeed his custodial experience is likely to have aggravated and exacerbated those difficulties". 103 Two other medical reports are also before the Court. The first is that of Dr Stephen Allnutt, Psychiatrist, who examined the appellant on 10 February 2014. Dr Allnutt expressed the view that the appellant did not manifest symptoms consistent with Bipolar Disorder, but did exhibit a number of depressive symptoms. Dr Allnutt said that there was insufficient evidence to conclude that the appellant was a "mentally ill person" or a "mentally disordered person". He recommended (inter alia) that the appellant be moved to a main area of the gaol and that he be placed "one out". 104 The other report is that of Dr Stephen Woods, Clinical Psychologist, of 25 February 2014. Dr Woods reported: "Mr Monteiro presents with a number of "issues" that potentially result in him suffering a greater level of hardship as a result of being incarcerated than might otherwise be the case. Specifically Mr Monteiro suffers from an ear complaint that is apparently aggravated by cold weather.... Arising from this history, (a) he was reportedly classified as not suitable to share a cell with other inmates and (b) it was recommended that he not be held in gaols located in cold climate regions. Notwithstanding Mr Monteiro has reportedly spent most of the time served in gaols located in cold climate regions and was recently forced to share a cell with a person who he believes is a convicted child sex offender and possibly murderer, and is currently facing a charge of attempted murder of another inmate." 105 Dr Woods concluded that the appellant was not suffering from any active symptoms of a mental illness but was suffering from symptoms of Post-Traumatic Stress Disorder. He also noted that the appellant continued to assert his innocence. 106 Counsel submitted that this additional evidence established that as a consequence of his mental and physical health, the appellant's custodial sentence had become more onerous. 107 Secondly, counsel relied upon the fact that since the determination of his appeal by this Court four years ago, the appellant had been moved in custody no less than 43 times. Counsel pointed out that the longest continuous period in which he had been in the one custodial facility was 18 months. It was submitted that this had made it difficult for the appellant to settle in custody, undertake rehabilitative courses, and pursue studies. 108 Thirdly, counsel pointed to the fact that the appellant has been subject to various levels of protection since his incarceration. 109 Fourthly, counsel relied upon the fact that despite recommendations that the appellant be held in custodial facilities located in areas with a moderate climate due to health issues, he had spent periods in areas where the temperature was cold, and had been denied permission by the authorities to have access to a heater. It was further submitted that the various hardships suffered by the appellant in custody had been extreme, and that little rehabilitative purpose had been served, or would be served in the future by his continuing incarceration. 110 Fifthly, counsel submitted that it was relevant to consider that the principal offence was committed in the context of a relationship between the offender and the victim. It was submitted that even if it were accepted that the relationship had ended, it had done so only a short time beforehand and that the offending should be viewed in that context. 111 Sixthly, reliance was placed upon media publicity surrounding the appellant and his offending. It was submitted that on the basis of the appellant's affidavit evidence, that publicity had caused him to be, in effect, "targeted" in custody, giving rise to fears for his safety. 112 Finally, and in the event that this Court were to intervene and re-sentence the appellant, it was submitted that a finding of special circumstances should be made, based upon the appellant's need for psychiatric or psychological counselling, and an associated need for assistance to adjusting to living in the community." 1. Pertinently, Bellew J observed at [118] – [128]: "THE APPELLANT'S MENTAL HEALTH 118 Dr Davies concluded that there was a causal connection between the appellant's mental state and his offending. I have already set out the relevant aspects of his evidence. In my view, there is no reason to reject Dr Davies' opinion. It supports a conclusion that there was such a connection. In these circumstances, the need for any sentence to reflect principles of general deterrence is lessened. 119 Further, although there is evidence that the appellant no longer suffers from Bipolar Disorder, he does suffer from various depressive symptoms. There is evidence from Dr Westmore, which I accept, that these various difficulties have rendered the appellant's period in custody more onerous than would otherwise have been the case. 120 However, considerations of general deterrence and conditions of custody aside, the fact that an offender is in ill health, be it physically or mentally, does not give rise to an automatic requirement that a sentence be mitigated from that which would otherwise be appropriate. As Gleeson CJ pointed out in Engert (supra), what is called for is a discretionary judgment in light of the circumstances of the individual case. 121 One of the factors relevant to determining the weight to be given to an offender's ill health is the seriousness of the offence. For the reasons set out more fully in [133] and following below, the appellant's offending was, on any view, serious. 122 Another relevant factor is whether the relevant medical condition existed at the time of the offence, and whether it has deteriorated in the period between the offence and sentence: R v Wickham [2004] NSWCCA 193 per Howie J at [18] (Bell and Hislop JJ agreeing) citing R v Kier [2004] NSWCCA 106 and R v L (NSWCCA unreported 17 June 1996). In the present case, the appellant's mental health problems are of long standing. Both Dr Westmore and Dr Diment traced their origins to the period of the appellant's adolescence. 123 Further in my view, the evidence does not support a conclusion that the appellant's mental health has deteriorated since the time of the offending. On the contrary, given that the most recent medical evidence does not diagnose the appellant as suffering from a Bipolar Disorder it might be said that his condition has at least stabilised to a degree. As I have noted, Dr Westmore was not able to diagnose the appellant as suffering from a serious mental illness and Dr Allnutt concluded that there was insufficient evidence to conclude that the appellant was mentally ill or mentally disordered. OTHER ASPECTS OF THE APPELLANT'S CONDITIONS OF CUSTODY 124 The appellant's protected status, and his being "targeted" as a consequence of media publicity are relevant considerations on sentence and I have had regard to them. I also accept that repeated changes of location have obviously been disruptive for the appellant in various respects. However I am not satisfied that the issues concerning the appellant's physical health has rendered his custodial sentence significantly more onerous. 125 One of the principal submissions advanced in this respect concerned the difficulties experienced by the appellant when serving periods of custody in cold climates. It was submitted, in particular, that his requests for assistance in this respect had been refused. It is noteworthy that in his affidavit of 18 September 2014 the appellant said the following: "41. I suffer from hypothyroidism and also from a bony growth in my ear canal otherwise known as "swimmers ear". 42. I currently take 100 milligrams of oroxin for my thyroid condition. 43. My thyroid condition makes me more susceptible to feeling the cold. 44. My swimmer's ear is aggravated by cold conditions. 45. It is difficult for me to leave my cell to go to an even colder yard to exercise because of the pain and discomfort I feel when it is cold. 46. I have regularly felt pain and discomfort during my sentence as a result of being mostly placed in gaols located in cold climates: Cooma. Lithgow, Goulburn and Junee. 47. In March 2011 my ear was assessed by an ear nose and throat (ENT) specialist at Long Bay. He recommended that I be held in gaol with more moderate winter temperatures to lessen the pain I experience. This recommendation has not been followed. 48. I was offered an appointment to discuss having surgery over a year later in May 2012 and also in early 2013/2014. I did not attend these later appointment because, although I accept I need surgery, I have strong reservations about having such surgery whilst in gaol. I fear that I will suffer complications or secondary infection due to poor hygiene. 49. I therefore have had to rely on pain killers, warm clothing and my fan heater to alleviate my pain symptoms." 126 Subsequently, at paragraphs (70) and following the appellant said: "70. I have tried hard to improve myself through tertiary studies since my previous appeal. Unfortunately, I have only been able to gain ready access to my materials and resources to study whilst I was at Cooma. Prior to going to Cooma and in 2014 my efforts have been thwarted as a result of my frequent movements between gaols and my restrictive conditions. Valuable study materials have been (sic). 71. Each time I change gaols I need to seek approval again to undertake my studies, re-establish contact with my University and retrieve access materials from my previous gaol. Due to the disruption, I have had to defer my studies. 72. Last year at Cooma I successfully completed my studies for a diploma of Occupational Health and Safety and a diploma of Quality Auditing from Swinburne University of Technology in Melbourne." 127 Two matters in particular emerge from this evidence. Firstly, a schedule of the appellant's movements in custody is Annexure "D" to the affidavit of Mr Eccleshall of 22 September 2014. Reference to that document establishes that between 19 January 2013 and 21 December 2013, a period of some 11 months, the appellant was housed at Cooma. That is the only period in which he has been in that location and I therefore infer that it was during that time that he successfully completed the studies he referred to in paragraph (72) of his affidavit. The cold winter climate in Cooma is well known. The fact that the appellant, on his own evidence, managed to successfully complete external studies during the period in which he was held there provides some indication of his ability to cope with being housed in cold climates. 128 Secondly, the appellant has deposed to the fact that he is being treated with medication for his thyroid condition. Surgery has been offered to him in relation to his ear condition. The appellant declined that surgery because he had fears of contracting infection due to what he considered to be poor levels of hygiene. There is no evidence which establishes any foundation for those fears. In circumstances where the appellant is being treated (apparently appropriately) for one condition, and has declined treatment offered in respect of another, it is difficult for him complain that health considerations render his custodial situation more onerous. This is certainly not a case in which the appellant has been deprived of the benefit of appropriate medical treatment in custody." 1. Both I and Gleeson JA added our own observations to those of Bellew J. I said at [2] – [4]: "2 I agree with Bellew J that relevant error has been established. I also agree with his Honour's reasons for his conclusions. 3 I, too have exercised the sentencing discretion afresh, in accordance with the approach discussed in Kentwell. Like Bellew J, I have also concluded that the sentence imposed by Norrish DCJ is the appropriate sentence for the appellant and his offence and that a lesser sentence is not warranted in law, notwithstanding the error established in the Court of Criminal Appeal's judgement and the matters discussed by Bellew J in relation to ground 2 (that the appellant was on conditional liberty at the time of the offence) and ground 3 (the psychiatric evidence). 4 I wish to add for myself that but for what I consider to be a lenient sentence imposed by Norrish DCJ, a greater sentence may have been appropriate in this case, given the gravity of the appellant's overall offending. His sentence is a total term of 12 years and 3 months imprisonment, with a non-parole period of 7 years and 9 months. That is a lenient sentence in the circumstances Bellew J has discussed. The principal offence alone carried a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years, two statutory guideposts which must be considered in this sentencing exercise, along with all other relevant factors. The end result of the sentencing exercise at first instance, was partly explained by his Honour's conclusions as to special circumstances. I have concluded that in all of the circumstances, this sentence pays proper regard to the conclusions reached on this appeal in relation to the causal connection between the applicant's mental condition and the commission of his offences, which ameliorates the role which general deterrence should play in this sentencing exercise. Given the applicant's mental condition, as well as his lack of contrition and remorse for his serious offences, however, I consider that specific deterrence must still play a role in this sentencing exercise. In the result I have come to agree that despite my reservations as to the leniency of this sentence, it is in the circumstances appropriate. Certainly no lesser sentence is warranted in law." 1. These observations; complaints advanced by Mr Monteiro in relation to the views expressed by Bellew J as to his health and conditions of custody, with which I had agreed; as well as matters which he complained had not been taken into account on the appeal, as they ought to have been, he submitted provided a basis on which I had to disqualify myself from hearing what lay in issue between the parties in these proceedings. 2. In Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 McCallum J explained at [3] that in these proceedings Mr Monteiro seeks judicial review of many aspects of the conditions of his imprisonment, "ranging from his classification, which correctional centre he should be housed in, his access to computers, charges for photocopying for legal and educational material, his need for orthopaedic shoes, disciplinary findings, the prison's telephone system protocol, the "decision to transport the plaintiff in prison trucks and prison vans" (he seeks to be transported only in sedans, station wagons or four-wheel drives), decisions relating to access to psychological support, decisions relating to the operation of the buy-up process and so on". 3. McCallum J there noted that the defendants are the State of New South Wales, the Attorney General, the Commissioner of Corrective Services, the Department of Corrective Services, GEO Group Australia Pty Ltd, Justice Health, Legal Aid and Law Access New South Wales and the general manager for the time being of Mid North Coast Correctional Centre. Mr Monteiro has also by motions sought to add other defendants. It is the Commissioner of Corrective Services who appears in the proceedings as contradictor, to contest the relief Mr Monteiro seeks. 4. Her Honour had earlier referred Mr Monteiro for pro bono legal assistance, with the result that he had been represented at the hearing. Afterwards Mr Monteiro applied to have her Honour recuse herself. He was not represented on that application, which was refused. Her Honour's decision concerned a question as to Mr Monteiro's dietary requirements, her Honour declaring that a Justice Health decision of 11 December 2014 that the special diet which he sought was not required for reasons of health, was not valid. Nevertheless, her Honour declined to quash the decision, because it was no longer operative. Her Honour also refused to make an order that Mr Monteiro be provided with a particular diet, taking the view that it was not the Court's role to descend into the management of prisons. 5. What fell to me to decide in these proceedings, by way of comparison, was not the merits of any aspect of Mr Monteiro's claims, but rather various procedural matters. Firstly, whether the hearing of the Commissioner's motion should be vacated; secondly, if not, whether the Commissioner should be given leave to amend the May motion; and thirdly, whether the orders sought by the Commissioner in relation to Mr Monteiro's amended May 2016 motion, namely, that the motion should be dismissed, in whole or in part, with an order for costs, should be made. 6. The orders Mr Monteiro sought in his May motion included orders that Justice Fullerton and "other pro crown and/or corrupt judges" recuse themselves from ever hearing any of his matters; that the relief sought in orders 1 and 2 of his summons (for minimum security classification, the grant of day and weekend release and domicile in a cell alone), be heard in an expedited fashion; that all court fees be waived; that named persons be added as defendants and that they be required via subpoena to give evidence; that he be referred for pro bono legal assistance; that he be provided with a copy of identified written submissions; and that these matters only be dealt with on an interim basis and not to finality, due to unspecified medical conditions. 7. The bare assertion of bias on the part of the judge is not a sufficient basis on which a disqualification application may be acceded to. In the absence of any suggestion of actual bias, the test for disqualification of a judge for apprehended bias is that "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). Such a "fair-minded observer" must have attributed to him or her "knowledge of the actual circumstances of the case" (see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 87). 8. What must also be considered on such an application is firstly, "what it is said might lead the judge to decide the case other than on its legal and factual merits". Secondly, there must also be an "articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits" (see Ebner at [8]). 9. So considered, I was satisfied that it was not open to conclude that a fair-minded observer, having knowledge of what had been dealt with in the Court of Criminal Appeal's judgment that Mr Monteiro relied on; what was there in issue; what was there decided; what I and Bellew J had there observed; and the concerns Mr Monteiro expressed, would reasonably apprehend that I might not bring an impartial mind to the resolution of the procedural matters lying between the parties in these proceedings, which fall to me to decide. 10. Further, I was satisfied that the necessary connection between what Mr Monteiro believed might lead me to decide those issues other than on their legal and factual merits and the feared deviation from the course of deciding those matters on their merits, was not established. 11. From his submissions it is apparent that Mr Monteiro holds adverse views about judges of this Court, including me, not only as to their competence, but also as to their integrity. That he holds such views is not a basis for concluding that a fair-minded observer having knowledge of the actual circumstances of the matters which arose for determination of his appeal by the Court of Criminal Appeal of which I was a member, would share those views. To the contrary, I was satisfied both that such an observer would not share them and that such views could not establish the necessary connection earlier discussed. 12. Accordingly, I refused the disqualification application, but later granted Mr Monteiro an adjournment of the hearing of the Commissioner's motion, for a short period, so that he could be provided with a copy of the Commissioner's submissions and a supporting affidavit earlier served upon him, which he claimed had been removed from his cell the previous day. His adjournment application, pressed on the basis of hearing problems and his declining mental state, was otherwise refused, for reasons then given.