High Risk Offender Who Breached Extended Supervision Order Has Sentence Reduced

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By Paul Gregoire and Ugur Nedim

On 9 April 2009, Simon Monteiro was sentenced to 12 years imprisonment for the aggravated sexual assault of his then girlfriend in her Bellevue Hill apartment on 2 January 2008.

The rape was aggravated because the offender inflicted actual bodily harm before the non-consensual sex assault.

The State Parole Authority granted Monteiro parole on 14 December 2018. While acknowledging he continued to display problematic behaviour, it was thought an extended period of supervision in the community would be better than releasing him with no observation when his sentence expired.

So, Monteiro was placed on an interim and then an extended supervision order, under the terms of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). These are orders placed on ex-inmates deemed at serious risk of reoffending and they include strict conditions that must be adhered to.

However, it was found that during his time under extended supervision Monteiro had breached the terms of the order in multiple ways, including operating on a number of undisclosed electronic devices and on digital platforms using alternative identities.

Monteiro was found, whilst operating under an alias on the internet, to have searched for the identity of a female Corrective Services NSW officer around 80 times, and he’d even set up a business buying and selling torches using a different name, which he neglected to report as required.

Custodial time for multiple breaches

Monteiro pleaded guilty to having breached his interim/extended supervision orders ten times and appeared before the NSW District Court to be sentenced in mid-2021.

Breaching the conditions of an extended supervision order contravene section 12 of the Act. The maximum penalty for this offence is a $55,000 fine or up to five years in prison.

The initial eight offences included owning undisclosed electronic devices, sending and receiving emails and texts, setting up multiple email addresses and social media accounts under other names and sending messages to a Community Corrections Officer.

A breach that involved using a Gumtree account under two names was taken on a Form 1, which means although the defendant wasn’t convicted of the charge, the judge took the offence into consideration when sentencing for one of the other offences the accused was found guilty of.

Two further breaches – using fake names and unauthorised use of certain electronic devices – would have been heard in the NSW Local Court, but instead they were dealt via section 116 of the Criminal Procedure Act 1986 (NSW), which permitted the offences to be dealt with in the District Court.

And on 16 June last year, NSW District Court Judge Tanya Bright sentenced Monteiro to 2 years and 8 months prison time, with non-parole set at 2 years. Her Honour set out that in terms of most of the breaches the objective seriousness was “just below” or at mid-range.

The aggregate sentence reflected a 10 percent discount for pleading guilty to the initial eight breaches, and for the remaining two dealt with under section 166 – which still carried the same maximums – a 25 percent discount was granted for the utilitarian value of their early guilty pleas.

A permissible appeal

Representing himself, Monteiro sought bail and to appeal the imposing of the extended supervision order, the appropriateness of accepting his pleas of guilt, the breach convictions and the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 9 February this year.

The NSWCCA outlined that it was beyond its jurisdiction to consider the appropriateness of the imposition of the extended order, as that’s a matter for the NSW Court of Appeal.

But it conceded that it was within its scope to consider the severity of the sentences in relation to the breaches.

NSWCCA Justices Anthony Payne, Stephen Rothman and Ian Harrison explained that Supreme Court Justice Des Fagan had relied on the evidence of two forensic psychiatrists in determining that the offender should be placed on the extended supervison order.

The High Risk Offenders Act allows for inmates the Supreme Court deems too dangerous to be released back into the community as per usual standards to either be placed on an extended detention order – kept in prison after their term expires – or an extended supervision order.

Section 10 of the Act outlines that an extended supervision order can last for up to 5 years, while section 11 sets out the conditions that may be applied to an order, which can include the subject not engaging in certain conduct and not changing their name.

Considerations of the court

The NSWCCA justices set out that when breaching the terms of an extended supervision order, the type of behaviour it can involve fits into one of two categories, that which has the aim of facilitating the commission of further offences or that which has nothing to do with reoffending.

“The offences committed by the applicant are not in the category of planning for, or preparation for, or the commission of, serious sexual or violent offences,” their Honours said, adding that certain breaches may disclose “increased risk of serious offending” but that was not the case here.

Compliance with the conditions of an extended supervision order is important, the NSWCCA justices made clear, however they determined the nature of those Monteiro engaged in were not around the mid-range of objective serious.

Their Honours outlined that although the seriousness of these breaches wasn’t of the lowest level, it was well below mid-range. And due to this the appeals court found that resentencing the offender was necessary.

So, on 17 February this year, the NSWCCA justices determined that considering the nature of the extended supervision order, the correct sentence would be an 18 month fixed sentence, with no parole period.

And due to the time Monteiro had already spent behind bars, this meant that the 18 month period of the sentence actually expired on the day that the appeals court handed it down.

Therefore, Monteiro was able to walk out of the courtroom a free man.

Evidently, as Justice Harrison set out this determination and the immediate release it resulted in, Monteiro burst into tears.

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