Open letter to Simon Corbell re: the ACT judiciary

By 11 December, 2012 52

Mr Simon Corbell MLA

Attorney-General for the Australian Capital Territory

GPO Box 1020, Canberra, ACT, 2601

Dear Mr Corbell

I am writing as a resident of the Australian Capital Territory, and as a constituent of the Electorate of Molonglo, to express my concern and anxiety regarding the willingness of the ACT judiciary – in particular the Justices of the ACT Supreme Court – to deal appropriately with alleged and proven criminals in the interests of public safety and community expectations.

Firstly, I should declare that I am an admitted Barrister and Solicitor in the ACT Supreme Court.  However, whilst I have a strong interest in the administration of criminal justice, I do not practice or have any expertise in the area.  Nonetheless, I believe that my understanding of the legal system, and my detachment from the day-to-day administration of criminal justice, means that I am in a good position to comment on what I consider to be an undue focus on the interests of alleged and proven offenders at the expense of the interests of the wider community, and victims in particular.

I draw your attention to the repeated appearance of one Mr Justin Monfries before the ACT Supreme Court, and more recently the appearance of one Mr Jermaine Goolagong before that same Court.  Indeed, it was the more recent matter of Mr Goolagong’s appearance before Higgins CJ, which was reported in The Canberra Times,[1] that has prompted me to write this letter.  Whilst that matter on its own is not particularly noteworthy, I believe that it is indicative of a wider trend in the Court to consider community safety, the community’s expectations of standards of behaviour, and particularly the interests of victims, as an afterthought only.

As you would be aware, Mr Monfries most recently came before the ACT Supreme Court (Refshauge J) in March this year.  On this occasion, Mr Monfries was sentenced for numerous offences, including driving a stolen motor vehicle, theft, obtaining property by deception, and multiple breaches of bail.

Prior to coming before the Court in March, Mr Monfries had already accumulated multiple convictions in the ACT and NSW for similar offences, and had served several sentences of imprisonment in NSW.

Despite the severity of the offences and his substantial criminal record, Mr Monfries was sentenced to three years’ imprisonment, wholly suspended, noting time served while on remand.

In my opinion, this sentence was entirely inadequate.  I note that section 7 of the Crimes (Sentencing) Act 2005 (ACT) provides as follows:

Purposes of sentencing

(1)   A court may impose a sentence on an offender for 1 or more of the following purposes:

(a)    to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b)   to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c)    to protect the community from the offender;

(d)   to promote the rehabilitation of the offender;

(e)    to make the offender accountable for his or her actions;

(f)    to denounce the conduct of the offender;

(g)   to recognise the harm done to the victim of the crime and the community.

(2)   To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

I have read the sentencing decision in relation to Mr Monfries’ March hearing, which is available on the ACT Supreme Court website,[2] and I consider that Refshauge J gave inadequate consideration to subsections (1)(a), (1)(b), (1)(c), (1)(e), (1)(f) and (1)(g) of the Crimes (Sentencing) Act.  I believe this is an endemic issue in the ACT Supreme Court, and I strongly believe that despite subsection (2), subsection (1)(d) is consistently given inordinate weight by the Court.

Approximately two months after his release, Mr Monfries is alleged to have killed one woman and seriously injured another when he ran a red light whist evading police in a stolen car under the influence of alcohol and drugs.  Mr Monfries is, of course, currently presumed innocent in relation to these allegations.  However, one cannot help but suspect that the surviving victim and the families of both victims must feel that they were completely let down by the ACT judiciary.  It is easy to comment with the benefit of hindsight, but in my opinion, given the information before the Court at Mr Monfries’ March sentencing hearing, such a tragedy was entirely foreseeable, and I strongly believe that Refshauge J is culpable for the dereliction of his duty to the community.

More recently, Mr Jermaine Goolagong is alleged to have crashed a stolen vehicle into another road user while on bail for charges relating to car theft.  As a result, Magistrate Bernadette Ross revoked Mr Goolagong’s bail and again refused bail in October.  However, Mr Goolagong was subsequently released on bail by Higgins CJ in November after His Honour noted the ACT’s inadequate capacity to provide mentally ill prisoners an alternative to custody.  Whilst this is a widely expressed concern, I feel that the safety of the community should be of paramount concern in bail hearings.  I have said above that Mr Monfries’ alleged offences in May this year ought to have been foreseen by the Court – I sincerely hope that I am not making similar observations in the future should Mr Goolagong reoffend while on bail.

In summary, I am deeply concerned about the ACT judiciary’s focus on the interests of alleged and proven offenders at the expense of the community and victims in particular.  I understand that the separation of powers means that the legislature and the executive have limited capacity to interfere in the judicial process.  However, I submit that we are now at a point where the ACT Government must seriously contemplate the mechanisms available to rein in what I consider to be an activist and permissive judiciary that does not reflect the expectations of the community.

Given the public interest in this matter, I have also provided a copy of this letter to Mr Zed Seselja (ACT Shadow Attorney-General), Mr Shane Rattenbury (ACT Greens’ spokesperson for the Attorney-General’s portfolio), ACT Supreme Court Chief Justice Terence Higgins, ACT Supreme Court Justice Richard Refshauge, and The Canberra Times.

Yours sincerely

Kieren Lee-Murphy


[1] Andrews, Louis, “Teen on bail despite claim he fled crash scene”, The Canberra Times, 28 November 2012.

[2] http://www.courts.act.gov.au/supreme/sentence/view/1176/title/r-v-monfries

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52 Responses to Open letter to Simon Corbell re: the ACT judiciary
#1
pptvb11:03 am, 11 Dec 12

*like*

#2
Tymefor11:27 am, 11 Dec 12

love to see the response, if any, get posted !!

#3
Comic_and_Gamer_Nerd11:47 am, 11 Dec 12

Great letter.

#4
thebrownstreak6911:50 am, 11 Dec 12

A great letter indeed. Hopefully a sensible response is forthcoming.

#5
Holden Caulfield11:50 am, 11 Dec 12

Hear, hear.

#6
Chop7112:10 pm, 11 Dec 12

Do you think he will do anything?

#7
vg12:41 pm, 11 Dec 12

Good luck. The Police have been telling the government for years that 90% of our crime is committed by less than 10% of our crooks and dealing with recidivists strongly is a big part of community safety. That fell on deaf ears.

#8
Paul00751:08 pm, 11 Dec 12

Fantastic read. I hope this brings about more than just a bit of debate, though being the cynic I am when it comes to Australian politics, I can’t say I am confident in seeing much change.

#9
caf1:24 pm, 11 Dec 12

I imagine you might get a frosty reception next time you have to argue before Refshauge J!

#10
Deref1:27 pm, 11 Dec 12

Good stuff – well done!

I’m puzzled though – why is it “Higgins CJ” and “Refshauge J” but not “Monfries Mr Justin” or “Seselja Mr Zed”?

#11
Diggety1:39 pm, 11 Dec 12

This is great. Where were you on my ballot paper??

#12
devils_advocate2:08 pm, 11 Dec 12

caf said :

I imagine you might get a frosty reception next time you have to argue before Refshauge J!

OP clearly states “I do not practice or have any expertise in the area.”

#13
devils_advocate2:12 pm, 11 Dec 12

vg said :

Good luck. The Police have been telling the government for years that 90% of our crime is committed by less than 10% of our crooks and dealing with recidivists strongly is a big part of community safety. That fell on deaf ears.

Yes but often when police run this argument, it is part of a larger argument in favour of stronger or more invasive powers, or mandatory sentencing laws, or some such rubbish.

This is a private (though apparently knowledgable) citizen (also: constituent) asking for better adherence to existing sentencing principles, so is more convincing, IMO.

Although the letter should also refer to the factors that a magistrate must take into account in sentencing – in my view, these are almost exclusively exculpatory in nature.

#14
caf2:33 pm, 11 Dec 12

devils_advocate said :

caf said :

I imagine you might get a frosty reception next time you have to argue before Refshauge J!

OP clearly states “I do not practice or have any expertise in the area.”

Yes, “the area” being “criminal justice”. The ACT Supreme Court hears other cases, too.

#15
bundah2:40 pm, 11 Dec 12

How refreshing to see that someone else is prepared to forward an articulate,clear picture to Corbell describing the pathetic approach adopted by the judiciary in this territory particularly since Higgins has ruled the roost.

I too have emailed Corbell on a number of occasions re issues similar to what you have articulated only to have ludicrous unintelligent responses to clear-sighted valid concerns that have plagued this town for years. So while i wish you well i fear that it is for nought given the mentality and their approach to justice.IMHO they seriously do not give a fark as to what the community expect from them for they know better,just ask them.

#16
Zeital4:06 pm, 11 Dec 12

Holden Caulfield said :

Hear, hear.

+1

#17
dtc5:48 pm, 11 Dec 12

Higgins is about to retire. Last Friday there were ads in the national press seeking applicants for the position of CJ.

If anyone thinks they can do a better job. (ok, bar, low etc).

Remember that Refshauge used to be the DPP ie the prosecutor. So its either strange that he now appears very lenient (guilt perhaps?), or there are factors that the public is not properly taking into account.

#18
bundah6:21 pm, 11 Dec 12

dtc said :

Higgins is about to retire. Last Friday there were ads in the national press seeking applicants for the position of CJ.

If anyone thinks they can do a better job. (ok, bar, low etc).

Remember that Refshauge used to be the DPP ie the prosecutor. So its either strange that he now appears very lenient (guilt perhaps?), or there are factors that the public is not properly taking into account.

It’s not a question of ‘factors that the public isn’t taking into account’ but more a question of the mindset and general approach of our judicial officers to sentencing that is clearly the problem.

#19
drfelonious6:38 pm, 11 Dec 12

Good letter Kieren, until you wind it up.

What, exactly, are the mechanisms that the AG can use to override the separation of powers, and how can we be sure that the cure you propose might not be worse than the disease?

#20
steveu7:22 pm, 11 Dec 12

How about we send all the ACT magistrates to NSW, and get them replaced with NSW magistrates. From what I have heard some of the NSW magistrates they have brought in have a different attitude to the ACT judges…

#21
Pandy7:36 pm, 11 Dec 12

Simon goes with the letter to the mayor of Canberra, holding it out limply with that snarly look of his and says: “What should I do with this boss?” The mayor snatches from his hand, scans over it and laughs out loud and says: “These guys are oppressed. Get out of my office so I can keep on playing with my tram set!” And so Simon walks out of Shane’s office.

#22
LegalNut7:54 pm, 11 Dec 12

Deref said :

Good stuff – well done!

I’m puzzled though – why is it “Higgins CJ” and “Refshauge J” but not “Monfries Mr Justin” or “Seselja Mr Zed”?

Standard referencing of judicial officers in the legal profession. Justice ABC becomes ABC J, Chief Justice XYZ becomes XYZ CJ and so on.

drfelonious said :

Good letter Kieren, until you wind it up.

What, exactly, are the mechanisms that the AG can use to override the separation of powers, and how can we be sure that the cure you propose might not be worse than the disease?

Simple. You amend the legislation applied by the Court to reduce their discretion. Examples of this are all too common in the form of so-called mandatory minimums. While they create their own barrel of issues, they do act to minimise the effect of the judiciary.

#23
LSWCHP8:51 pm, 11 Dec 12

Normally my brain translates the phrase “open letter” to “pompous self-interested rant by deranged loser” and I pay no attention to the letter.

This case is different. While reading the post by Lee-Murphy K I heard the sound of nails being hit on the head. This post states, more precisely than I ever could, exactly how I feel about the rotten state of the law (not justice) in the ACT.

Recidivist mongrel dog blaggers, thugs and drunk drivers are given all the consideration in the world and released on bail again and again, repeatedly putting the rest of the community at risk, as amply demonstrated by Monfries and his poor victims.

This is outstanding work. I concur with everything you expressed so clearly. Good on you.

And I’d also like to know where the convention about judges being referred to as (surname initial) comes from. :-)

#24
curlylocks9:02 pm, 11 Dec 12

Love it fantastic reading but do you think anything will come of it???????? I hope something does but I am 90% sure that nothing will happen at all.

#25
Leon9:33 pm, 11 Dec 12

In hindsight, Canberra would have been safer if we had locked up not only Justin Monfries but also the other half dozen drivers who were involved in fatal collisions this year.

Monfries was convicted in March of “dishonestly without consent driving a motor vehicle owned by another person … having an article with intent to use it in relation to a theft … stealing a carpark access remote control device … [and] attempting to obtain $6 675.20 by deception,” plus victimless crimes relating to breaches of bail conditions.

If these crimes represent a threat to public safety that was sufficient to justify locking him up indefinitely, then many of us would be sharing the prison with him.

#26
Diggety11:14 pm, 11 Dec 12

Leon said :

In hindsight, Canberra would have been safer if we had locked up not only Justin Monfries but also the other half dozen drivers who were involved in fatal collisions this year.

Monfries was convicted in March of “dishonestly without consent driving a motor vehicle owned by another person … having an article with intent to use it in relation to a theft … stealing a carpark access remote control device … [and] attempting to obtain $6 675.20 by deception,” plus victimless crimes relating to breaches of bail conditions.

If these crimes represent a threat to public safety that was sufficient to justify locking him up indefinitely, then many of us would be sharing the prison with him.

Keep looking Leon.

#27
banco11:50 pm, 11 Dec 12

vg said :

Good luck. The Police have been telling the government for years that 90% of our crime is committed by less than 10% of our crooks and dealing with recidivists strongly is a big part of community safety. That fell on deaf ears.

If you asked ACT criminal lawyers to name the 25 biggest troublemakers in the ACT there’d be a lot of overlap.

#28
kea8:19 am, 12 Dec 12

i have a similar letter brewing for the FLC and FMC.. if it wasn’t for section 121 I’d go to town..

#29
bundah8:58 am, 12 Dec 12

@ Leon

Look at what you missed:

The main difficulty with Mr Monfries is that he has a difficulty with his mental situation.Mr Monfries has a substantial and depressing history going back over many years. His criminal records shows 40 offences dealt with in eight court appearances since reaching the age of 18, … Mr Monfries has been in custody for 503 days and that custody relates principally to the offences other than the cheque offence. His mental situation is one that results in him being easily led and also having difficulty organising himself. Indeed, as the bail failures that have led to three of the offences for which I have to sentence him show, he has difficulty organising himself to comply with court orders. He has had a number of breaches of bail conditions over time and these have caused him to be in and out of custody from time to time. Those bail breaches have sometimes been serious, in the sense of using drugs and the like, but mostly they have been failures to comply with the given strictures.

Monfries is a walking time-bomb who needs a permanent room at the AMC!

#30
IrishPete9:30 am, 12 Dec 12

There is, unfortunately, a fundamental problem with this letter.

The judge did sentence Justin Monfries to imprisonment, a significant period. However, he was immediately released (presumably without any release plans in place) because he had already served all of it. So the problem, in this case at least, may not be the sentence, but the painfully slow ACT court system. All those other breaches of bail would not have occurred if the matter had been finalised earlier, because he wouldn’t have been subject to curfews, zero alcohol etc. The breaches that were non-technical would have occurred, but would just have been treated as new offences and (probably) breaches of a Good Behaviour order.

In fact Mr Justin Monfries was on bail at the time of the incident at Canberra Hospital. Circumstances of that bail are not clear from the public record. So “the system” had a number of ways of preventing the death and serious injury outside Canberra Hospital:

- it could have imprisoned him for longer, postponing the incident until his later release, but also giving him the opportunity for treatment in prison as a sentenced prisoner (but the sentence might have been appealed if excessive)
- it could have dealt with him earlier, giving the same prison sentence but he actually would have spent some time in custody as a sentenced prisoner, and might have received some meaningful treatment, and release-planning
- it could have done nothing different on these offences, but remanded him back into custody on the charges which he was given bail for.

Anyone thinking that the Supreme Court Blitz has changed anything or that Mr Refshauge would do things any differently from Mr Higgins if he becomes Chief Justice should read this from the ABC website yesterday: “He [Mr Tamayo Del Solar] stood trial for that offence in 2011, but a year and a half later Justice Richard Refshauge is yet to hand down his decision.” Another offender likely o be released straigh from court without having received any treatment or release planning?

The problem in the ACT courts is the culture, which the judges, magistrates (except some of the new ones from interstate), prosecutors and defence teams are all part of and complicit with. A culture of “I can’t make a decision, I need more information” regardless of the effect of further delay on victims, defendants, and the ACT taxpayer. The culture clearly extends into the civil justice area (Jonathan Crowley for example) and even some of the Tribunals’ areas of function (e.g. mental health).

IP

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