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DPP v Moore

DPP v Moore

Case [2009] VSCA 264 24 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 787 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
RODNEY DARYL MOORE

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JUDGES	NEAVE and REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2009
DATE OF JUDGMENT	24 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 264
JUDGMENT APPEALED FROM	R v Moore (Unreported, County Court of Victoria, Judge Bourke, 7 August 2008)

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CRIMINAL LAW – Sentencing – DPP appeal against sentence – Manifest inadequacy – Aggravated burglary – Rape – Application of principles in R v Verdins [2007] 16 VR 269 – Dysfunctional family and deprived background – Drug and alcohol abuse – Whether compassion for applicant’s circumstances given too much weight – Cognitive impairment – Link between Verdins principles and offending – No specific sentencing error identified in grounds of appeal – Previous convictions for violent offences – Broad range of sentences for this category of offences – Appeal allowed – Sentence increased.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC	Balmer & Associates Pty

NEAVE JA
REDLICH JA:

The facts have been fully set out in the reasons for judgment of Lasry AJA. We agree with his Honour that the Director should not be permitted to rely on a specific error in the sentencing judge’s application of the principles in R v Verdins,[1] because such an error was not alleged in the grounds of appeal.
[1](2007) 16 VR 269.

In our opinion, however, the ground alleging manifest inadequacy has been made out. The sentence imposed on Mr Moore is so disproportionate to the objective gravity of the offence as to shock the public conscience and to indicate error in principle. We take that view after making due allowance for his personal circumstances, his reduced mental capacity, the delay in his prosecution, the fact that he pleaded guilty and the principle of double jeopardy.

The personal circumstances of the offender

The learned sentencing judge recognised that the respondent’s Aboriginal background had contributed to his disadvantaged circumstances. In Director of Public Prosecutions v Terrick,[2] this Court summarised the principles relevant to the sentencing of Aboriginal offenders as follows:

The same sentencing principles apply irrespective of the offender’s race. Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.
In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt. At the same time, the sentencing court is bound to take into account ‘facts which exist only by reason of the offender’s membership of an ethnic or other group.’
When applying sentencing principles, which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that ‘mitigating factors in the background of the offender, or [in the] circumstances of the offence, occurred or had an impact peculiarly…

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 DPP v Moore

Details

AGLC: DPP v Moore [2009] VSCA 264
Case: [2009] VSCA 264
Decision Date: 24 November 2009

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, Moore, who had been convicted of aggravated burglary and rape. The Court of Appeal was required to determine whether the sentence was manifestly inadequate and if the trial judge had erred in his application of the principles outlined in R v Verdins. The appeal centred on whether the trial judge had given undue weight to Moore’s personal circumstances, including his dysfunctional family background, deprived upbringing, drug and alcohol abuse, and cognitive impairment, in assessing his culpability and sentencing.

The Court of Appeal found that while the trial judge had considered Moore’s personal circumstances, this did not amount to an error in principle or an error in applying the Verdins principles. The trial judge had appropriately considered these factors within the context of the overall sentencing framework. However, the court concluded that the sentence imposed was manifestly inadequate in light of the seriousness of the offences and the need for general deterrence. The appeal was allowed, and the sentence was increased to reflect the gravity of the crimes committed.

The Court of Appeal emphasised that the broad range of sentences for violent offences necessitated a reassessment of Moore’s sentence. The court acknowledged the mitigating factors but determined that they did not sufficiently justify the original sentence. The increased sentence was intended to align with the seriousness of the offences and to serve the broader purpose of general deterrence. The Court of Appeal’s decision underscored the importance of balancing individual circumstances with the overarching objectives of sentencing in serious criminal cases.

Orders