Monteiro v State NSW

1. [1]

   Mr Monteiro, who is the plaintiff in these proceedings, as the applicant, seeks interlocutory orders by Notice of Motion to vary or revoke some or all of the conditions of an Extended Supervision Order (“ESO”) pronounced by Fagan J with effect from 6 July 2020.

2. [2]

   The respondent to the motion is the defendant in the proceedings, the State of NSW.

3. [3]

   The application with respect to varying or revocation of the conditions of the ESO is brought pursuant to s 13 of the Crimes (High Risk Offenders) Act 2006 (“HRO Act”), is being dealt with on an interlocutory basis pending the final determination of the application which is fixed to be heard in May 2025. Because this is an interlocutory application and, at the request of the plaintiff, was brought on speedily prior to the end of term, in circumstances where the Court had limited time available to deal with the application, it has not been possible, nor would it be appropriate, for the Court to permit oral evidence to be given, or cross-examination to take place, on the filed written evidence. Where there is a significant contest of fact it is not possible for this Court to decide that significant contest for the purposes of this application. Given that there is to be a final hearing at which such contests of fact are likely to arise, it is, as well, inadvisable for this Court to undertake any determination of contested fact. It is necessary, however, for the Court to, as concisely as possible, give reasons today which explain the decision at which it has arrived.

4. [4]

   It is not possible in this oral judgment to provide lengthy detail of all of the background and circumstances dealing with the index offence, the associated offences, the evidence and information before Fagan J or his Honour’s extensive reasons; it is sufficient to identify some particular features of those matters, but I have taken all of the identified detail into account.

The Index Offence

1. [5]

   The index offence upon which the extended supervision order was based was an offence contrary to s 61J(1) of the Crimes Act 1900 committed on 2 January 2008. The plaintiff was convicted, after a jury trial, of that offence, being an aggravated sexual assault without consent. The aggravating circumstance was that in the course of the index offence, the plaintiff maliciously inflicted actual bodily harm upon the victim. There were two associated offences at the time being malicious damage to property and larceny.

2. [6]

   The circumstances of the index offence are adequately summarised in the decision of Fagan J in State of NSW v Monteiro (Final) [2020] NSWSC 881 at [11] - [14]. It is sufficient for me to note that the victim of the index offence was a woman with whom the plaintiff had commenced an intimate relationship and with whom he was living. The actions of the plaintiff occurred whilst he was still living with the victim, although, after he had agreed to leave their shared accommodation.

3. [7]

   After the conduct giving rise to the index offence, the victim, on the next morning, went to her workplace in a distressed state with visible injuries to her face. She subsequently attended Paddington Police Station and arrangements were made to serve an interim Apprehended Domestic Violence Order on the plaintiff.

4. [8]

   At a time when the victim was not in the shared accommodation, the plaintiff was convicted of an offence which involved significant damage being caused maliciously to the apartment, furniture and belongings.

5. [9]

   When pronouncing sentence on the plaintiff for the offences, Norrish DCJ, noted the following:

6. [10]

   I note that the plaintiff had contested the allegations at the trial before a jury and I note that he continues to contest the truth of the allegations upon which he was convicted.

7. [11]

   As earlier mentioned, Norrish DCJ, for the index offence, sentenced the plaintiff on 9 April 2009 to a term of imprisonment of 11 years, commencing on 8 April 2009 and expiring on 7 April 2020 with a non-parole period of 6 years and 6 months to expire on 7 October 2015. The total effective sentence for all three offences was 12 years and 3 months with a non‑parole period of 7 years and 9 months.

8. [12]

   The plaintiff unsuccessfully appealed his conviction and sentence. The Crown unsuccessfully appealed his sentence: see Monteiro v The Queen [2011] NSWCCA 113.

9. [13]

   In light of the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, the plaintiff brought a second appeal against his sentence to the Court of Criminal Appeal. Although that Court found error in the first sentencing decision of the Court of Criminal Appeal, it dismissed the appeal because no lesser sentence was warranted: see Monteiro v The Queen [2014] NSWCCA 277.

Proceedings by the State for an Extended Supervision Order

1. [14]

   By way of Summons filed 23 August 2019, and then an Amended Summons filed on 15 June 2020, the State sought an ESO for five years in accordance with the provisions of the HRO Act. After a contested hearing, as earlier noted, an ESO was made by Fagan J.

2. [15]

   On the basis of the evidence before him, Fagan J at [63], said that he was satisfied, to a high degree of probability, that the plaintiff posed an unacceptable risk of committing another serious offence if not kept under supervision. In so finding, Fagan J accepted the expert evidence of psychiatrists Drs Eagle and Furst, and a psychologist Dr Parker, concerning the risk of re-offending posed by the plaintiff and the need for supervision to ameliorate that risk for a 5 year period.

3. [16]

   For the purpose of this application, I proceed by accepting the findings and reasons of Fagan J but noting that they were pronounced about 4½ years ago in July 2020.

4. [17]

   The plaintiff has unsuccessfully sought to have his ESO revoked. That application was dismissed on 4 November 2022: see Monteiro v Commissioner of Corrective Services & Another; Monteiro v State of NSW [2022] NSWSC 1489.

Procedural Background to Notice of Motion

1. [18]

   There is a significant background procedurally to the current proceedings. I will again give only a brief summary of it.

2. [19]

   On 7 December 2023, the plaintiff commenced the substantive proceedings by summons. The summons sought to, in substance, have the ESO revoked and also to bring civil claims for damages against the State of NSW.

3. [20]

   In July 2024, Harrison CJ at CL directed the plaintiff to file and serve a Statement of Claim in accordance with the Uniform Civil Procedure Rules 2005 (“the UCPR”). After some further interlocutory proceedings and correspondence on 28 November 2024, I made orders pursuant to rule 28.2 of the UCPR for the following question to be heard and determined separately from all other questions in the proceedings, and before the hearing of any further trial in the proceedings:

4. [21]

   The final hearing of that separate question has been fixed to take place in May 2025.

5. [22]

   By way of this interlocutory application, the plaintiff seeks the revocation of a number, but not all, of the conditions which apply to the ESO.

Relevant Legislative Provisions and Applicable Principles

1. [23]

   I note, without setting out, the provisions of the HRO Act dealing with pre-conditions which must be proved before an ESO can be imposed: see ss 5B, 5I, 6 and 7. I also note that the terms of section 11 of the HRO Act, which enables this Court to impose such conditions on an ESO, as it considers appropriate. Section 11 sets out a range of possible subject matters of directions which the Court may consider appropriate. Section 11 does not limit any conditions to the identified subject matters.

2. [24]

   I note also the provisions of s 3 of the HRO Act about the objects of the Act, which are in the following terms:

3. [25]

   As Fagan J noted, the conditions which he imposed dealt with the protection of the community and not with the rehabilitation of the plaintiff.

4. [26]

   In the State of NSW v Wilkinson [2020] NSWSC 1813 at [43]-[44], Hoeben CJ at CL, set out the objects of the Act and the principles to be followed regarding the imposition of conditions for an ESO:

5. [27]

   These principles will guide this decision.

6. [28]

   I also note the remarks of Fagan J in State of NSW v BG (Final) [2019] NSWSC 200 at [36]-[39]:

Variation of Conditions of an ESO

1. [29]

   By his Notice of Motion, the plaintiff seeks that 14 conditions be revoked. As I have earlier said, the application is made pursuant to section 13 of the HRO Act, which provides:

2. [30]

   There are other provisions which are not directly relevant to the present application.

3. [31]

   The requirement that the Court be satisfied that circumstances have changed sufficiently is imposed by the legislation with respect to an application for revocation of an ESO in its entirety. It does not directly apply to an application to vary an ESO of the kind made here, namely, to delete particular conditions. However, I am satisfied that the Court would not engage in a hearing involving the alteration, revocation or amendment of conditions unless it was satisfied that the circumstances had changed sufficiently to justify such a step.

4. [32]

   I am satisfied that since the ESO was imposed on 6 July 2020, the circumstances involving the plaintiff and the ESO have changed sufficiently to justify the consideration of the application which the plaintiff makes.

5. [33]

   Since the ESO was made on 6 July 2020, with the conditions which were then imposed approximately 4½ years has passed during which I am satisfied the plaintiff has had the benefit of time, some of it in the community and some of it not, to reflect on the features of his behaviour which brought him before the Court for the index offence and the associated offence. It is obvious that he has matured to some extent during that period. I am also satisfied that in that 4½ period the plaintiff has developed relationships with a number of different women (some involving sexual intimacy) and that no complaint has been made to police with respect to any criminal conduct on the part of the plaintiff towards those women.

6. [34]

   It is also the fact that a number of women have provided evidence, which includes reference to the plaintiff’s behaviour and character and their lived experience with him, which are consistent with there being no re-occurrence of the criminal conduct and activity which reflects the risk identified by Fagan J as the basis for the imposition of the ESO with the conditions which his Honour imposed.

7. [35]

   Finally, I am satisfied that there has been no further charge brought against the plaintiff, suggesting that he has committed any offences involving conduct of the kind which was exhibited by him during the index offence and the associated offences. The only matters involving the plaintiff which have brought him before the Court since his release from custody have been those matters associated with non-compliance with the ESO. I note that there are some matters presently outstanding, in that respect, which have not been finally resolved. I do not take them into account.

Brief Summary of the Submissions of the Parties

1. [36]

   I turn then to consider the application to vary or revoke some of the conditions. Argument took place yesterday, orally, in which the plaintiff submitted, and the State opposed, the alteration of the conditions.

2. [37]

   To summarise all that was said on both sides would be unduly repetitive, but, as I understand it, the substance of the argument advanced by the plaintiff is that the conditions imposed upon him are simply not reasonable; not workable; have the effect of restraining him from engaging in employment, which is an activity which would promote his rehabilitation; and that the conditions fail to promote any of the values that society expects after the serving of a custodial sentence, that is, to promote reintegration into society and prevent re-offending.

3. [38]

   The plaintiff made submissions about a wide range of matters, some of which I regard as being irrelevant to the determination which I have to make.

4. [39]

   Underlying the plaintiff’s submissions is a range of grievances which he has with the staff of Corrective Services and Community Corrections, who are responsible for the administration of the ESO (“supervising staff”). He submits that the supervising staff have used every condition of the ESO punitively, and as a weapon, and he submits that this has made it impossible for him to work, to maintain friendships and social connections, to attend businesses, cafes, restaurants and gymnasiums. The plaintiff particularly takes issue with the invasion of his personal life occasioned by the condition that he report to the supervising staff. the names of women with whom he has an intimate relationship in order for the staff (or police officers) to either conduct a welfare check, particularly in circumstances where there is no reason to suppose that such a check needs to be conducted, or else to interview those women and inform them of the plaintiff’s criminal record. the existence of the ESO and the details of the various conditions.

5. [40]

   On the other hand, the State submits that the plaintiff continues to pose an unacceptable risk and that the circumstances do not justify any variation or revocation of any condition of the ESO. Succinctly put, the State submits as follows:

6. [41]

   The State also submits that any change of circumstances, of the kind to which I have earlier referred, is insufficient to justify any revocation or alteration of the conditions forming part of Fagan J’s order.

7. [42]

   The State notes that there have been difficulties in supervising the plaintiff and that he has been charged with breaching his ESO for engaging in conduct intending to circumvent his supervision. The State submits that it is proper to characterise his interactions with the supervising staff as being “consistently abusive, obstructive and derogatory”. The State notes that he has been issued with five written warnings over the course of his ESO with respect to his behaviour.

8. [43]

   I earlier mentioned that the only criminal conduct in which the plaintiff has been found to have engaged in since the imposition of his ESO has been with respect to his failure to comply with the ESO, or a previous Interim Supervision Order (“ISO”). The State drew attention to, and relied upon, these offences as demonstrating a continuation of the plaintiff’s risks of engaging in further serious offences.

9. [44]

   On 18 August 2020 the plaintiff entered a plea of guilty to three offences of failing to comply with an ISO and five offences of failing to comply with an ESO. For those offences he was sentenced on 16 June 2021 by Judge Bright in the District Court: see R v Monteiro [2021] NSWDC 340.

10. [45]

    At that time the plaintiff was also sentenced on a s 166 Certificate for three offences of failing to comply with an ESO, and the Court took into account, on a Form 1, one further count of failing to comply with an ESO. Judge Bright sentenced the plaintiff to 2 years and 8 months imprisonment with a non-parole period of 2 years. Following a successful appeal, the Court of Criminal Appeal resentenced the plaintiff to a term of imprisonment of 18 months: Monteiro v The Queen [2022] NSWCCA 37.

11. [46]

    On 21 September 2023, the plaintiff was arrested and charged with two counts of fail to comply with his ESO in relation to Conditions 9 and 15, Condition 9 being the condition that the plaintiff must not permit any person to stay overnight at his approved address, in effect, unless he has notified his DSO of the name and contact details of the person who is to stay overnight and approval has been given; Condition 15 dealt with the plaintiff informing his DSO of the name of any person with whom he has had an intimate or sexual relationship. The plaintiff disputes the charges and has pleaded not guilty to them. They have not yet been determined.

12. [47]

    On 7 August 2024 the plaintiff was arrested and charged with one count of failing to comply with Condition 1 of his ESO. Condition 1 requires the plaintiff to accept the supervision of Corrective Services NSW for the term of the ESO. That matter has not been, as yet, determined.

13. [48]

    Having regard to the fact of those matters, the State submits that the risk of the plaintiff re-offending remains.

Discernment

1. [49]

   It is necessary for me now to make a determination on the plaintiff’s application.

2. [50]

   I keep in mind the following matters.

3. [51]

   I am not considering an application to revoke the entire ESO, and I am not engaged in the determination of any question as to whether the supervision in fact undertaken the supervising staff of the plaintiff, pursuant to the ESO, has been reasonable or not. That is not what I am being asked to do.

4. [52]

   What I am being asked to do is to revoke in whole or in part particular conditions. It will be simplest if I deal with my decision and short reasons by reference to each condition on a sequential basis.

5. [53]

   The first Condition which the plaintiff’s motion seeks to have revoked is Condition 4. Condition 4 is:

6. [54]

   The condition was imposed by Fagan J because, in circumstances where the plaintiff was not obliged to provide a schedule of his movements as a condition of his ESO, it would remain a “useful condition of supervision in part as a deterrent with respect to the defendant placing him in situations that would exacerbate his risk of re-offending”.

7. [55]

   Justice Fagan said this:

8. [56]

   The plaintiff submits that the wearing of an ankle bracelet is extremely intrusive; it provides information to Corrective Services which has no relevance at all to his risk and that, having regard to the changed circumstances which I earlier described, it is no longer necessary as a deterrent upon him from engaging in conduct of the kind that gave rise to his index offence and which were referred to as a risk by the expert witnesses before Fagan J and in the more recent expert material placed before me.

9. [57]

   I am satisfied that the electronic monitoring condition, Condition 4, is no longer necessary or appropriate to be imposed because the plaintiff’s behaviour since the ESO was imposed is such that any deterrent effect of it has ceased and, having regard to his conduct since the ESO, the extent to which it enables Corrective Services officers to make enquiries concerning people of the kind desired, it is no longer necessary. I also note that the fact of the ankle bracelet being in place has caused significant difficulty in the plaintiff obtaining employment which I regard as a desirable pro-social activity which could play a rehabilitative role.

10. [58]

    In those circumstances, I will make an order which has the effect of removing Condition 4 with effect from today.

11. [59]

    The plaintiff seeks the removal of Condition 8, which is that the plaintiff must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the prior approval of his DSO which may not be withheld unreasonably. I note that the plaintiff was given a warning by his DSO in writing on 10 May 2024, arising from an apparent failure to comply with this condition.

12. [60]

    The condition was one of a number of conditions imposed by Fagan J to address the risk of a serious sexual offence or a serious violent offence occurring in the course of an intimate relationship with a female partner, and also to generally restrict the plaintiff’s movements so that he could be adequately supervised by his DSO. It forms part of a group of conditions, including Condition 15, which is also sought to be varied, that the plaintiff must inform those supervising him of the name of any person with whom he has an intimate or sexual relationship and that person may be informed the plaintiff’s criminal history.

13. [61]

    It seems to me that whilst the risk identified by Fagan J remains, that nevertheless the plaintiff has exhibited by his behaviour that the extent of the deterrent effect of conditions and the need to support the DSO’s supervisory powers has significantly lessened. I consider, having regard to the present circumstances, that Condition 8 is no longer necessary and should be deleted.

14. [62]

    I specifically note, however, that this does not preclude, under Condition 5, the obligation of the plaintiff to truthfully answer questions from his DSO or any supervising person about his location, activities and associations. Nor does it derogate from Conditions 1, 2 and 3, including the ability of his DSO to give him a reasonable direction. However, I do not think that the plaintiff should be restricted from spending a night anywhere other than his approved address without prior approval.

15. [63]

    The removal of this condition, however, does not have the effect that the plaintiff can be ordinarily resident at any address other than that which is approved pursuant to Condition 6.

16. [64]

    I am unpersuaded that Condition 15 should be revoked in its entirety. I am unpersuaded that there is no risk at all, at the moment, on the evidence which I have, of the plaintiff engaging in conduct of the kind which gave rise to the risk which Fagan J identified. But, in my view, the terms of Condition 15 are too broad for the present circumstances, and I will reformulate it to read as follows:

17. [65]

    The reference to Mr Monteiro being “the defendant” in this reformulated condition is intentional and does not accord with the way he has ordinarily been referred to in the course of this judgment. All existing conditions refer to him as “the defendant”. Accordingly, in any reformulated conditions, the phrase “the defendant” refers to and means Mr Monteiro.

18. [66]

    The next condition to be considered is Condition 13 which requires the plaintiff, before commencing any form of employment, volunteer work or educational course, to advise the DSO of the nature and place of the relevant activity and the contact details of the person in charge and/or responsible for the plaintiff’s involvement and participation.

19. [67]

    This condition was imposed to address the risk of the plaintiff behaving in such environments, in a way which would demonstrate that the risk found by Fagan J was falling into place. In practice, this condition has, at least from the plaintiff’s perspective, provided a barrier to engaging in employment or educational courses. If the effect of the condition is as contended for by the plaintiff, then it is not assisting any rehabilitation or re-integration into society. As well, it inhibits pro-social conduct and interactions, and, as well, the forming of relationships by the plaintiff. It is also, on the basis of the material before me, to some significant extent, inconsistent with the fact that the plaintiff is permitted by the ESO to have unlimited social interaction with people of the kind that he would otherwise encounter at any place of employment, undertaking volunteer work or undertaking any educational course outside of the specified environments.

20. [68]

    In my view it is open to a DSO, in accordance with the conditions which will continue, to satisfy themselves of the detail of any employment, volunteer work or educational course which the plaintiff is engaging in or undertaking and if there is are proper and reasonable grounds which form the basis for the issuing of a direction under Condition 13 of the ESO, then the DSO can issue a direction to the plaintiff. I am not satisfied it is necessary for Condition 13 to continue.

21. [69]

    The balance of the conditions, except for one, deal with the use of electronic devices, the use of the internet, the various forms of electronic communication in which the plaintiff engages and the capacity of his supervising officer to be provided with passwords, log-in names, PIN codes and the like to enable all of those devices to be searched.

22. [70]

    The plaintiff submits that allowing his supervising staff to search through all of his communication devices in an unrestricted manner, impedes his ordinary activities of daily living. I agree. The condition as it is framed, has the capacity to allow the DSO to read communications which are the subject of legal professional privilege or are otherwise confidential, and have nothing to do with the risk of serious criminal behaviour of which Fagan J was satisfied and, having regard to the passage of time and the change of circumstances to which I have referred, does not, in my opinion, any longer, serve any useful purpose in addressing the relevant risk..

23. [71]

    There is much to commend the view that these conditions are part of relatively standard supervisory conditions imposed on all ESOs to assist with supervision generally of a person subject to an ESO other than to address the specific risk giving rise to the ESO.

24. [72]

    In my view the conditions contain some appropriate detail and other parts extend beyond that which is appropriate. It is appropriate for the plaintiff’s communications with women who may be the target of the risk described by Fagan J, or via any social networking platform, or else whether via an app or by some access through the internet utilising a specific site such as a dating website, to be overseen by the DSO and other supervising staff. But I am not satisfied that it is necessary for the entirety of the applicant’s internet browsing history or other internet‑based activity or other communications to be the subject of supervision.

25. [73]

    Nor am I satisfied that the capacity to search and the like ought be able to be exercised at any time, and without a reasonable cause.

26. [74]

    A condition which alters these internet and communication conditions reflecting those reasons will be included in the final orders which will be published, together with these reasons in written form.

27. [75]

    Finally, the plaintiff submits that the condition that he must not change his name without approval ought be deleted; that is Condition 24 and reads as follow:

28. [76]

    The plaintiff objects to this condition and says that he should not be restricted in any way with respect to any name he chooses to use. Fagan J expressed the view at [74] that he could see no reason why such a condition should not remain in place. I have been troubled by the existence of this condition. On the one hand it is a restriction on the general freedoms which can be enjoyed by the plaintiff. On the other hand, it does not seem to me to be, at least on an interlocutory basis, an undue restriction. I accept that the plaintiff has been the subject of considerable adverse publicity which he contends is misleading, pejorative and destructive of him in the name which he bears and that he seeks to be able to escape those adverse consequences by changing his name.

29. [77]

    There is much to be said for the ability of any person in the community, through the appropriate formal means, namely a Deed Poll, of allowing them to change their name. It seems to me, however, that this condition does not preclude such a step because if the plaintiff wishes to change his name and wishes to do so through a formal process, then within the terms of the existing condition he can seek the approval of the DSO so to do.

30. [78]

    My decision may be different with respect to this condition at any final hearing. But, on an interlocutory basis, I am not prepared, in the absence of any evidence of a specific purpose or a specific circumstance or a specific name to be used, to revoke that condition.

Summary

1. [79]

   In summary, I was asked to deal with particular conditions: I have revoked Condition 4 with effect from today; I have revoked Condition 8; I have revoked Condition 13; I have amended Condition 15.

2. [80]

   With respect to Conditions 16-23 inclusive, which I will call for a moment “the internet and communications conditions”, the final form of these conditions will form part of my published judgment.

3. [81]

   I declined to grant the application to change Condition 24.

Orders

1. [82]

   I make the following order:

   1. (1)

      Direct that the Mr Simon Monteiro comply with the conditions set out in Annexure A to this judgment, in respect of the Extended Supervision Order, made pursuant to The Crimes (High Risk Offenders) Act 2006, by Fagan J on 6 July 2020.