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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
#31
IrishPete9:31 am, 12 Dec 12

bundah said :

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

Silly comment – he has already “gone off” (allegedy). How much worse can it get than one person dead and one seriously injured?

IP

#32
IrishPete9:33 am, 12 Dec 12

And finally Mr Jermaine Goolagong is a different issue, as his bailing relates to the lack of a secure mental health facility in whch he can be detained appropriately. ACT Government has been prevaricating (postponing) this for years. In his case it is not the judiciary at fault, it is squarely the ACT Government and Health department.

IP

#33
bundah10:10 am, 12 Dec 12

IrishPete said :

bundah said :

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

Silly comment – he has already “gone off” (allegedy). How much worse can it get than one person dead and one seriously injured?

IP

I thought that would be obvious to even someone with a modicum of intelligence.It is quite evident that he is a basketcase and danger to society who would need constant monitoring to ensure that he behaves himself,which to date,he has clearly been incapable of doing.You might believe that he can be rehabilitated and can do no more harm however i do not.

#34
Dilandach10:21 am, 12 Dec 12

IrishPete said :

Silly comment – he has already “gone off” (allegedy). How much worse can it get than one person dead and one seriously injured?

IP

Giving him another opportunity for a start by letting him out again.

IrishPete said :

And finally Mr Jermaine Goolagong is a different issue, as his bailing relates to the lack of a secure mental health facility in whch he can be detained appropriately. ACT Government has been prevaricating (postponing) this for years. In his case it is not the judiciary at fault, it is squarely the ACT Government and Health department.

IP

The ACT government didn’t hand down the sentence, the judiciary did. Blame passing at its absolute best. The judiciary did have a choice, protect the public before looking at the interests of those convicted. The judiciary have to own their decisions, take responsibility instead of taking the stance of ‘oh we had no other choice!’

Mully and Monfries stand as a testament to the decisions that the judiciary take. Must be nice going through life without a conscience.

#35
IrishPete11:56 am, 12 Dec 12

Dilandach said :

IrishPete said :

Silly comment – he has already “gone off” (allegedy). How much worse can it get than one person dead and one seriously injured?

IP

Giving him another opportunity for a start by letting him out again.

IrishPete said :

And finally Mr Jermaine Goolagong is a different issue, as his bailing relates to the lack of a secure mental health facility in whch he can be detained appropriately. ACT Government has been prevaricating (postponing) this for years. In his case it is not the judiciary at fault, it is squarely the ACT Government and Health department.

IP

The ACT government didn’t hand down the sentence, the judiciary did. Blame passing at its absolute best. The judiciary did have a choice, protect the public before looking at the interests of those convicted. The judiciary have to own their decisions, take responsibility instead of taking the stance of ‘oh we had no other choice!’

Mully and Monfries stand as a testament to the decisions that the judiciary take. Must be nice going through life without a conscience.

Mr Goolagong has not been sentenced. He was released on bail.

IP

#36
IrishPete12:01 pm, 12 Dec 12

bundah said :

IrishPete said :

bundah said :

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

Silly comment – he has already “gone off” (allegedy). How much worse can it get than one person dead and one seriously injured?

IP

I thought that would be obvious to even someone with a modicum of intelligence.It is quite evident that he is a basketcase and danger to society who would need constant monitoring to ensure that he behaves himself,which to date,he has clearly been incapable of doing.You might believe that he can be rehabilitated and can do no more harm however i do not.

Don’t put words in my mouth. He is now in custody on serious charges, and is likely to remain there for quite a long time. I was referring to his prospects of rehabilitation before the death he is charged with – it appears rehabilitation had never been attempted because the courts couldn’t get their act together to finalise his various cases.

Don’t know what you mean by “basketcase”. If you mean he is unable to be rehabilitated, I would reiterate that you can’t know that if it hasn’t ever been tried. But now is certainly not the right time, and the opportunity may have been missed entirely.

IP

#37
dpm12:28 pm, 12 Dec 12

Awesome. But good luck, as I suspect Refshauge etc. are actually under the impression that crims listen to and heed their warnings given when handing out sentences.
For example, I note this recent this case:
http://www.abc.net.au/news/2012-12-07/weekend-detention-for-drunk-armed-robbery/4415770?section=act

I remember when I heard the report on the radio the other day I laughed out loud at judgment quotes like:
1) ‘Refshauge took into account both had now stopped drinking, but warned of *serious consequences* if they resumed’ Hahahah! I’m sure they’ll keep that in mind! I can picture him waving his finger at them as he said this.

2) ‘that flirting with drugs and alcohol would no longer be an option’ Another classic. I’m sure they’ll never touch a drop again after that directive.

and 3) he ‘*hoped* the time served would be a ”wake up call”’ Yes, the rest of us out in the community are also *hoping*…..

We shall see, I suppose, if they do pull their heads in.
On that note, I also wonder if the guy that was charged in Young a few months back for a range of offences (with the same name and age as one of the two sentenced to weekend detention above:
http://www.youngwitness.com.au/story/211091/in-brief/ )
is the same person? If it is…..

#38
Dilandach12:49 pm, 12 Dec 12

IrishPete said :

Mr Goolagong has not been sentenced. He was released on bail.

IP

Not that I was referring to Goolagong specifically, the point remains. The Judiciary don’t ‘own’ their decisions and the consequences that come from them. Instead we get blame shifting and irrelevant excuses.

#39
IrishPete2:23 pm, 12 Dec 12

Dilandach said :

IrishPete said :

Mr Goolagong has not been sentenced. He was released on bail.

IP

Not that I was referring to Goolagong specifically, the point remains. The Judiciary don’t ‘own’ their decisions and the consequences that come from them. Instead we get blame shifting and irrelevant excuses.

Okay, but because of the comment you quoted it seemed like you were referring to Goolagong. You’re right, the judiciary never own their decisions. Some should have been pensioned off years ago for inefficiency, but there is no workable mechanism for firing judges and magistrates.

IP

#40
dpm8:45 am, 16 Dec 12
#41
bundah10:02 am, 16 Dec 12
#42
Lookout Smithers7:49 pm, 16 Dec 12

Everyone has the right to opinion, and to write a letter outlining concern and anxiety over a case or two. ACT is one of the cleanest safest cities in the country. Maybe that is why one case is singled out so easily. Victims of crime who have yet to ever have a day in court would like a phone call and an apology .

#43
Innovation8:29 am, 17 Dec 12

Presumably Judges hate to have their decisions overturned or amended on appeal. I’m guessing that their generous judgements have a lot to do with the likelihood of offenders appealing vs the likelihood of prosecutors appealing.

No doubt Judges and Government’s have indemnity for judicial decisions. A bit left field, but perhaps decisions would be different if they or the Government could be sued for future offences caused by criminals released back into the community too soon……..

#44
dpm3:33 pm, 03 Jan 13

I see the accused in another crash involving a stolen car yesterday is/was ‘serving a suspended jail sentence and is subject to three good behaviour orders…’ and … ‘is also serving a term of weekend jail for burglary, aggravated burglary and theft’.

If convicted of this too, better give them one more chance as i’m sure they were *almost* reformed this time, but just had a bad day….

#45
Girt_Hindrance5:07 pm, 03 Jan 13

dpm said :

I see the accused in another crash involving a stolen car yesterday is/was ‘serving a suspended jail sentence and is subject to three good behaviour orders…’ and … ‘is also serving a term of weekend jail for burglary, aggravated burglary and theft’.

If convicted of this too, better give them one more chance as i’m sure they were *almost* reformed this time, but just had a bad day….

Must drive the Police absolutely crazy knowing that even if they catch these POS, they’re going to get a light touch up with a feather prior to being put back onto the streets to steal, rob, maim and kill.
Seems that it’s going to take being a victim of one of these cretins for these Magistrates to wake up.

#46
IrishPete5:39 pm, 15 Jan 13

This judgement http://www.courts.act.gov.au/supreme/judgment/view/4077/title/leighton-v-blundell was the subject of an appeal just finalised. One of the grounds of appeal was the delay in handing down the judgement, more than 2.5 years. Justice Refshauge, in case anyone is wondering.

IP

#47
cleo4:48 am, 16 Jan 13

It’s not the Judges who make the laws in Canberra, but he government, the laws in Canberra differ from other states, the Judges have no power, Canberra is meant to be seen as a Fantastic place to live, as it’s the Capital, so they just sweep things under the carpet. Like I said it’s a Mickey Mouse town.

#48
Pitchka10:40 am, 16 Jan 13

Im quite often amused by judgememts handed out. In particular the ones that state along the lines of ‘the following crime carried a maximum penaltly of 10 years inprisonment or …………’

Person in question committed a violent robbery with a deadly weapon, all that aside, here, sign this 2 year good behaviour bond and stay out of trouble, because you show great signs of rehabilitation, despite the fact you have a long and lengthly criminal history…

Winner winner chicken dinner..

#49
farout8:43 am, 20 Jun 13

Sorry to drag up an old thread, but did nay good come of this effort by the OP?
Judging by the support on this website, it might be worth starting a petition, something on the lines of this one on change.org ?

#50
bundah9:42 am, 20 Jun 13

farout said :

Sorry to drag up an old thread, but did nay good come of this effort by the OP?
Judging by the support on this website, it might be worth starting a petition, something on the lines of this one on change.org ?

Unfortunately the judiciary are living in a world of their own and it’s called la-la-land!

#51
farout10:03 am, 20 Jun 13

bundah said :

Unfortunately the judiciary are living in a world of their own and it’s called la-la-land!

But they’re meant to be playing a role in keeping the real world safe.
Real world people, including the victims and potential victims of crime in the ACT, are the ones who eventually pay for their salaries and keep them in their job. If their standards do not meet the expectations of the general populace, surely there must be some way to get the message to them?

#52
bundah10:27 am, 20 Jun 13

farout said :

bundah said :

Unfortunately the judiciary are living in a world of their own and it’s called la-la-land!

But they’re meant to be playing a role in keeping the real world safe.
Real world people, including the victims and potential victims of crime in the ACT, are the ones who eventually pay for their salaries and keep them in their job. If their standards do not meet the expectations of the general populace, surely there must be some way to get the message to them?

Many,particularly those in positions of some power,have attempted to enlighten the la-la’s however the standard of sentencing has been maintained.The only way to change the situation is to introduce mandatory sentencing which is both controversial and extremely unlikely to occur in this territory so we’re effectively buggered..

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