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Moore (a pseudonym) v The King

Moore (a pseudonym) v The King

Case [2022] VSCA 233 27 October 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0093

JAY MOORE (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, 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 AP and NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF JUDGMENT:	27 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 233
JUDGMENT APPEALED FROM:	DPP v Moore (a pseudonym) [2022] VCC 842 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault of child under 16 – Sentence of 10 months’ imprisonment with two year community correction order – Whether judge sentenced on incorrect factual basis – Whether judge failed to take into account participation in sex offender treatment – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr CK Wareham
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA:

The applicant (now aged 35 years)[2] and his partner hosted a New Year’s Eve party at their home on 31 December 2019. Evidently, the applicant drank a deal of alcohol and became quite inebriated. His partner’s female niece, then aged 15 years,[3] stayed the night at the premises, and was asleep on a mattress on the lounge room floor when she was woken by the applicant’s finger touching her genitals underneath her underwear.
[2]His date of birth is 29 September 1984.
[3]She was born in June 2004.
On 3 June 2022, the applicant pleaded guilty in the County Court to one charge of sexual assault of a child under 16.[4] The maximum sentence for that offence is 10 years’ imprisonment, and the standard sentence is four years.
[4]Crimes Act 1958, s 49D.
Following a plea in mitigation, on 6 June 2022 the judge sentenced the applicant to 10 months’ imprisonment, to be followed upon his release by a two year community correction order (‘CCO’).
The applicant now seeks leave to appeal against his sentence on three grounds:
1The learned sentencing judge erred by having regard to a superseded Summary of Prosecution Opening, and sentenced the applicant on the basis that:
(a) He ‘pestered [the complainant] to sleep on the mattress’ with him, and
(b) He ‘asked the [complainant] to sleep on the mattress [with him] many times’, and
(c) There was ‘some premeditation’ to the offending.
2The learned sentencing judge erred by failing to take into account the fact that the applicant had already commenced treatment in a sex offender treatment program prior to his plea and sentence.
3When regard is had to the following factors:
(a) the applicant’s plea, its timing and inherent utility,
(b) the discount to be afforded to pleas of guilty during the currency of the COVID-19 pandemic,
(c) the applicant’s expressions of remorse and prior good character,
(d) the applicant’s engagement in treatment and rehabilitation…

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 Moore (a pseudonym) v The King

Details

AGLC: Moore (a pseudonym) v The King [2022] VSCA 233
Case: [2022] VSCA 233
Decision Date: 27 October 2022

CaseChat Overview and Summary

The appellant, referred to as Moore, was convicted of sexually assaulting a child under the age of 16. He appealed against his sentence, which was 10 months' imprisonment with a two-year community correction order. Moore argued that the sentence was manifestly excessive and that the primary judge had erred in sentencing on an incorrect factual basis. Additionally, he contended that the judge had failed to consider his participation in a sex offender treatment program.

The court considered whether the primary judge erred in sentencing by relying on an incorrect factual basis, and whether the judge had failed to appropriately consider Moore's participation in a sex offender treatment program. The court also considered whether the sentence was manifestly excessive. The court found that there was no error in the primary judge's factual basis for sentencing, and that the judge had indeed taken into account Moore's participation in the treatment program. The court concluded that the sentence was not manifestly excessive, considering the gravity of the offence and the need for deterrence and denunciation.

The court dismissed the appeal and refused leave to appeal to the High Court. The sentence of 10 months' imprisonment with a two-year community correction order was upheld. The court found that the primary judge had properly exercised their discretion in sentencing, taking into account all relevant factors, including the nature and circumstances of the offence, the character of the offender, and the interests of the community. The sentence was deemed to be appropriate and not manifestly excessive.

Orders