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Brad Moore (a pseudonym)[1] v The Queen

Brad Moore (a pseudonym)[1] v The Queen

Case [2018] VSCA 2 30 January 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0149

BRAD MOORE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2018
DATE OF JUDGMENT:	30 January 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 2
JUDGMENT APPEALED FROM:	DPP v [Moore] (Unreported, County Court of Victoria, Judge Gucciardo, 7 June 2017)

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CRIMINAL LAW — Appeal — Sentence — Indecent act with or in the presence of a child (two charges) — Sentences of three years’ imprisonment on each charge — Cumulation two years — Total effective sentence of five years’ imprisonment with non-parole period of three years and three months — Whether sentence manifestly excessive — Appeal allowed — Resentenced to a total effective sentence of 30 months’ imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC and Mr B Johnston	James Dowsley & Associates
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
SANTAMARIA:

On 27 July and 29 July 2016, the applicant, then aged 47 years, committed two indecent acts with his partner’s daughter, ‘JM’, then aged 6 (charges 1 and 2). He later pleaded guilty in the County Court on 25 May 2017 to two charges of indecent act with or in the presence of a child.[2]
[2]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.

Following a brief plea, on 7 June 2017 the judge sentenced the applicant to be imprisoned for three years on each charge, two years of the sentence on charge 2 to be served cumulatively with the sentence on charge 1. Thus, the total effective sentence imposed was five years’ imprisonment, upon which the judge fixed a non-parole period of three years and three months.[3] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty, he would have sentenced the applicant to be imprisoned for six years, and would have fixed a non-parole period of four years.
[3]Pursuant to s 34 of the Sex Offenders Registration Act 2004, the applicant was ordered to be a registrable offender 15 years.

The applicant seeks leave to appeal against that sentence on two grounds as follows:

1 The sentencing discretion miscarried as a result of the Judge’s finding that the Applicant’s offending — comprising two instances separated by two days — ‘required a significant measure of cumulation, one upon another in recognition of its separate occurrence’; and
2 In all the circumstances:
(a)the individual sentences imposed;
(b)the order for cumulation made;
(c)the total effective sentence; and
(d)the non-parole period

are manifestly excessive and such as to have offended the principle of totality.

In our view, leave to appeal should be granted,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brad Moore (a pseudonym)[1] v The Queen

Details

AGLC: Brad Moore (a pseudonym)[1] v The Queen [2018] VSCA 2
Case: [2018] VSCA 2
Decision Date: 30 January 2018

CaseChat Overview and Summary

Brad Moore, the appellant, challenged the sentence imposed by the Supreme Court of Victoria, contending that it was manifestly excessive. The charges against him involved indecent acts with or in the presence of a child, for which he was sentenced to three years’ imprisonment on each count. The court ordered the sentences to cumulate by two years, resulting in a total effective sentence of five years’ imprisonment, with a non-parole period of three years and three months. The appeal focused on the severity of the sentence and whether it was manifestly excessive.

The primary legal issue was whether the sentence imposed by the trial judge was manifestly excessive. The court had to consider the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing for offences involving indecent acts with or in the presence of a child. The appeal hinged on whether the trial judge had appropriately balanced the severity of the offences with the principles of sentencing, particularly those concerning the protection of children and the need for general deterrence.

The Court of Appeal found that the trial judge had failed to adequately consider the principles of parity and proportionality in sentencing. The court concluded that the total effective sentence of five years was manifestly excessive. It was noted that the appellant had no prior criminal history, and the offences, though serious, did not warrant such a severe penalty. The court resentenced the appellant to a total effective sentence of 30 months’ imprisonment with a non-parole period of 18 months, finding this to be a more appropriate sentence in the circumstances.

The final orders of the Court of Appeal resulted in the appellant's resentencing to a total effective sentence of 30 months’ imprisonment, with a non-parole period of 18 months. The decision underscored the importance of ensuring that sentences are proportionate to the gravity of the offence and the individual circumstances of the offender.

Orders