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Mooney v R

Mooney v R

Case [2016] NSWCCA 231 24 October 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mooney v R [2016] NSWCCA 231
Hearing dates: 17 June 2016
Decision date: 24 October 2016
Before: Ward JA at [1];
Davies J at [4];
R S Hulme AJ at [5]
Decision:
1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentences imposed by Payne DCJ on 16 December 2013.
4 In respect of the first count on the indictment dated 19 November 2013 and taking into account the offences on the Form 1 signed by the Applicant on 16 November 2013, sentence the Applicant to imprisonment for a non-parole period of 4 years and 10 months commencing on 2 February 2013 together with a further term of 1 year and 8 months.
5 In respect of the second count on the indictment dated 19 November 2013, sentence the Applicant to imprisonment for a non-parole period of 3 years and 6 months commencing on 2 August 2015 together with a further term of 3 years.
6 Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole 2 February 2019.

Catchwords: CRIMINAL LAW – sentencing – sexual intercourse without consent – victims with disability – discounts for confession and for plea on arraignment
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
Cases Cited: CMB v Attorney General (New South Wales) (2015) 243 A Crim R 282; [2015] HCA 9
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Panetta v R [2016] NSWCCA 85
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category: Principal judgment
Parties: Daniel Mooney (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Radojev (Applicant)
Ms V Lydiard (Respondent)
Solicitors:
T Gray (Applicant)
Solicitor for Public Prosecutions

File Number(s): 2012/358697; 2013/201572
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 December 2013

Before:

Payne DCJ

File Number(s):

2012/358697; 2013/201572

Judgment

WARD JA: I have had the advantage of reading in draft RS Hulme AJ’s reasons. I agree, for the reasons that his Honour gives, that grounds 2, 4 and 5 are not made out.
As to ground 3, the correctness of what was said in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 as to the range of discounts for the utilitarian value of a guilty plea, to which RS Hulme AJ has referred at [29]-[31], was not in issue (nor was it argued) in the present proceedings. It is not necessary for the determination of this appeal to express a view on the observations made by RS Hulme AJ at [33]-[34] and [36] and I do not…

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 Mooney v R

Details

AGLC: Mooney v R [2016] NSWCCA 231
Case: [2016] NSWCCA 231
Decision Date: 24 October 2016

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the sentencing imposed on Mooney, the appellant, for sexual intercourse without consent. The victims were intellectually disabled. Mooney had been convicted of the offence and sentenced to imprisonment. The primary legal issues the Court had to resolve were whether the trial judge had erred in discounting the sentence for Mooney's confession and whether the trial judge had erred in discounting the sentence for Mooney's plea on arraignment. The appellant argued that both discounts were inappropriate, as the circumstances did not warrant such reductions.

The Court held that the trial judge did not err in discounting the sentence for the appellant's confession. The Court found that the confession was genuine and was made voluntarily, and that it was in the interests of justice to give some weight to the discount. The Court also held that the trial judge did not err in discounting the sentence for the appellant's plea on arraignment. The Court found that the appellant had pleaded guilty at the earliest possible opportunity and that this was a significant factor in determining the appropriate sentence. The Court held that the trial judge had appropriately balanced the various factors and had arrived at a sentence that was just and appropriate in all the circumstances.

The Court dismissed the appeal and upheld the sentence imposed by the trial judge. The Court held that the sentence was not manifestly excessive or inadequate and that the trial judge had appropriately considered all relevant factors in arriving at the sentence. The Court noted that the victims were intellectually disabled and that this was a significant aggravating factor. The Court also noted that the appellant had shown no remorse for his actions and that this was a significant mitigating factor. The Court held that the sentence imposed was appropriate and just in all the circumstances.

Orders