Moiler v R

Case [2021] NSWCCA 73


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Moiler v R [2021] NSWCCA 73
Hearing dates: 12 April 2021
Date of orders: 12 April 2021
Decision date: 21 April 2021
Before: Basten JA at [1];
Davies J at [3];
Button J at [4]
Decision:

1.   Grant the applicant leave to appeal from the sentence for reckless wounding imposed by the District Court on 24 April 2020.

2.   Set aside the sentence for reckless wounding.

3.   Resentence the applicant to a non-parole period of 19 months to date from 13 October 2019 and a balance of term of 17 months.

4.   The effect is that the applicant is entitled to release on parole on 12 May 2021, with the balance of term due to expire on 12 October 2022.

Catchwords:

SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole

Legislation Cited:

Crimes Act 1900 (NSW), ss 35, 58

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Crimes (Administration of Sentences) Act 1999 (NSW), ss 128, 158

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Texts Cited:

Oxford Concise Medical Dictionary, 8th ed (2010)

Category:Principal judgment
Parties: John Moiler (Applicant)
The Queen (Respondent)
Representation:

Counsel:

P Coady (Applicant)
S Traynor (Respondent)

Solicitors:

Legal Aid (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/217755
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
24 April 2020
Before:
Noman DCJ SC
File Number(s):
2019/00217755

Judgment

  1. BASTEN JA: I agree with Button J. I add the further brief observation.

  2. In a recent affidavit, prepared for the purposes of this hearing, the applicant demonstrated a degree of insight into his condition and the fact that drugs had exacerbated his mental illness in the past, rather than ameliorating it. He will undoubtedly need assistance in the future from those he trusts to help him maintain a regime of appropriate medication and avoidance of illicit drug taking. I therefore support the recommendation of Button J that the Parole Authority provide assistance to him in giving effect to these insights.

  3. DAVIES J: The reasons of Button J are also my reasons for having joined in the orders of the Court on 12 April 2021.

  4. BUTTON J:

Introduction

  1. On 12 April 2021, I joined in orders of this Court with regard to an application for leave to appeal against sentence brought by Mr John Moiler (the applicant), and founded…

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Moiler v R [2021] NSWCCA 73
Case
[2021] NSWCCA 73
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against his sentence for recklessly wounding a man in Melbourne. The matter was heard in the High Court of Australia. The appellant was already on parole for a previous offence of identical nature when the current offence was committed. The appellant suffers from schizophrenia and intellectual deficits, and he also has a history of drug abuse. The primary issue before the court was whether the sentence of four years' imprisonment, after a 25% discount, was manifestly excessive given the appellant's mental health issues and drug abuse problems.

The court considered the impact of the appellant's mental illness and drug abuse on his offending behaviour. It acknowledged that while the appellant's mental illness was not the direct cause of the offence, it was inextricably linked to his drug abuse, which in turn led to the offence. The court found that the appellant's mental health issues and drug abuse had a significant impact on his ability to refrain from reoffending, and that these factors should be taken into account when assessing the severity of the sentence. The court determined that the original sentence was manifestly excessive and reduced both the head sentence and the non-parole period. The court also recommended that the State Parole Authority consider imposing further conditions of parole to address the appellant's drug abuse and mental health issues.

The final orders of the court were that the appeal against sentence be allowed, the head sentence of imprisonment for four years be reduced to three years, the non-parole period be reduced to 18 months, and the recommendation be made to the State Parole Authority to consider imposing further conditions of parole. The appellant's conviction was upheld, and he was to serve the reduced sentence with the non-parole period as determined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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