MOORE, David Albert v R - [2008] NSWCCA 143

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
MOORE, David Albert v R [2008] NSWCCA 143

FILE NUMBER(S):
2007/2901

HEARING DATE(S):
10 March 2008

JUDGMENT DATE:
26 June 2008

PARTIES:
David Albert Moore - Applicant
Regina - Respondent

JUDGMENT OF:
Giles JA Adams J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/41/0043

LOWER COURT JUDICIAL OFFICER:
JLA Bennett SC DCJ

LOWER COURT DATE OF DECISION:
9 March 2007

COUNSEL:
H Dhanji - Applicant
J Girdham - Respondent

SOLICITORS:
S O'Connor - Applicant
S Kavanagh - Respondent

CATCHWORDS:
SENTENCE APPEAL - maliciously inflict GBH with intent to inflict GBH - assessment of objective gravity of the offence as within the mid-range - departure from the standard non parole period after plea of guilty - serious, permanent and disabling injuries suffered by victim - no lesser sentence warranted at law.

LEGISLATION CITED:

CASES CITED:
R v Gallagher [2007] NSWCCA 296
R v Way (2004) 60 NSWLR 168
R v Ohar (2004) NSWCCA 83
R v Pellew (2004) NSWCCA 434

TEXTS CITED:

DECISION:

Leave to appeal granted.
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/2901
GILES JA
ADAMS J
LATHAM J
26 JUNE 2008

DAVID ALBERT MOORE v REGINA

Judgment

GILES JA : I agree with Latham J.
ADAMS J : I agree with the judgment of Latham J but wish to add some additional comments. Any intentional infliction of grievous bodily harm that leaves serious permanent injuries should be regarded as at least well within the mid-range of objective seriousness and the injury that was inflicted on and continues to be suffered by the appellant's victim, as set out in Latham J's judgment, in my respectful view place the objective seriousness of the appellant's offence significantly above the mid-range. It may be that the sentencing judge's analysis reveals some degree of inconsistency but this is, in the circumstances, insufficient to demonstrate an error requiring appellate intervention. Even if I were of the opinion that there was an error requiring this Court to consider re-sentencing, I agree with Latham J that the sentence imposed was the least that could be justified and that no lesser sentence is warranted in law.
LATHAM J : The applicant, David Albert Moore, seeks leave to appeal against the sentence imposed upon him on 9 March 2007, following a plea of guilty to Maliciously Inflict Grievous Bodily Harm with Intent to Inflict Grievous Bodily Harm. The offence carries a maximum penalty of 25 years imprisonment and bears a standard non-parole period of 7 years. The plea was accepted in satisfaction of an indictment, the principal charge of which was Cause Grievous Bodily Harm with Intent to Murder.
The applicant was sentenced to a non-parole period of 6 years, with a balance of term of 3 years.
The sentencing proceedings extended over four days, largely because of a dispute concerning whether or not certain injuries to the applicant's abdomen were inflicted by the victim or self-inflicted. That dispute was resolved adversely to the applicant. No issue is taken with that finding in this application, or with the allocation of a 10% discount for the applicant’s plea.
The applicant’s submissions on the appeal are the product of a mathematical analysis of the sentencing exercise, which (it was said) reveal error. The submissions did not go so far as to assert that the sentence fell outside the range of the judge’s legitimate sentencing discretion, having regard to the objective and subjective circumstances of the case. The facts found by the judge for the purpose of sentencing (which are accepted), and the applicant’s history, demonstrate that such a submission could not be sustained. The application fails on this basis, even if error is established.
The Offence
The applicant, aged 56, and the victim, his wife, aged 52, had been married for 32 years. On 23 August 2005 the applicant and the victim decided to end their marriage. The family and friends of the couple described their relationship as an argumentative one, albeit not violent. During the fortnight leading up to 23 August, their relationship had become strained.
On the evening of 23 August 2005, the couple were visited by two friends, with whom they consumed a moderate amount of alcohol and a joint of cannabis. During the evening, the applicant and his wife informed their friends that they had mutually agreed to separate and had amicably resolved their property settlement.
Sometime between the departure of their friends at 9:30pm and the early hours of 24 August, the applicant and the victim began to argue, culminating in an assault by the victim upon the applicant with a metal poker. The applicant sustained abrasions to his hands, which were described by the judge as defensive wounds, and a superficial contusion to his head. In so far as the victim (who was 5 feet tall) resorted to the use of the poker during the argument, the judge accepted that there was a measure of provocation directed at the applicant. However, very soon thereafter, the applicant wrested the poker from his wife and struck her a number of times forcefully to the head. At some stage after this assault, the applicant inflicted a number of superficial abrasions to his abdomen "so as to embellish the extent of the attack offered by his wife, thereby to provide some explanation if not greater justification for his attack upon her."
The applicant called 000 shortly after 1 am. He told attending police that he had hit his wife in the head and could not stop the bleeding. The applicant's wife was found in a semiconscious state on the floor of the kitchen in a pool of blood. She had a large wound to the right side of her head with grey matter protruding. The poker was found nearby.
The evidence of blood splatter in the kitchen was consistent with the poker having been swung at ground level on a minimum of two occasions towards the position where the applicant's wife was found by the police.
The applicant complained of chest pains and was taken to Bowral Hospital for treatment. He declined the opportunity to take part in an interview, but submitted to forensic procedures. He later claimed to a friend who visited him in custody that he "just lost it for 30 seconds."
The applicant’s wife was taken to Liverpool Hospital in a critical condition. She underwent surgery for a large depressed fracture to the right side of her skull and a resulting intraventricular haemorrhage. She remained in a critical but stable condition on life-support in an induced coma. Three months after the injury, the victim had made significant gains and was likely to make a further limited recovery. However, the brain injury was described as severe, resulting in permanent impairment of a cognitive, emotional, behavioural and functional nature.
The victim was unable to recall the events of the night. At the time of sentence (18 months after the offence), the victim was still wheelchair-bound and unable to live independently in the foreseeable future. The victim spent a total of one year in hospital. She has an indentation of her head and baldness in the affected area. She cannot use her left hand, and has lost touch sensation in her left arm, fingers and leg. She has difficulty controlling her voice, has blurred vision on the left side, and has had extensive surgery, including the transplantation of skin from her leg to repair the damage to her scalp, and a cranioplasty. The victim’s left foot curls, necessitating the wearing of a splint. She takes a number of medications and requires assistance with dressing and toileting.
The judge assessed the objective gravity of the offence as one falling within the middle of the range. No issue is taken with this assessment for present purposes. For my part, having regard to the serious injuries suffered by the victim, this was a very generous finding : R v Gallagher [2007] NSWCCA 296 at [27].
The Applicant’s Subjective Circumstances
The applicant was born in the United Kingdom, where he married his wife, before emigrating to Australia in the early 1970s. The couple had no children.

The applicant had a minor criminal history for possession of drugs and a common assault in 1991 and 1993 respectively, which the judge put to one side in determining sentence. The judge found that the applicant was a person of good character and that he had good prospects of rehabilitation.

The applicant had worked consistently since leaving school at the age of 16 and was a qualified stonemason, landscaper, bricklayer and concreter. He suffered from a heart condition, a back condition, and depression, for which he takes a number of medications. The applicant was undergoing treatment for the heart condition and will require surgery in the future. It was common ground that the applicant's health justified a finding of special circumstances.
It was accepted that the applicant expressed genuine remorse and grief over the injuries he had inflicted upon his wife. The applicant was employed as a sweeper within the prison and was undertaking Bible studies in custody.
It is not contended that the judge overlooked any relevant subjective factor, or failed to give appropriate weight to any factor.
The Approach to Sentence and the Applicant’s Submissions.
The judge comprehensively reviewed the authorities applicable to the sentencing of offenders for those offences to which a standard non-parole period applies, namely R v Way (2004) 60 NSWLR 168 , R v Ohar (2004) NSWCCA 83 and R v Pellew (2004) NSWCCA 434. Ultimately the judge noted that the applicant’s plea of guilty, his expressions of remorse, the ongoing heart condition with which he is afflicted, and his prospects of rehabilitation, all justified a departure from the standard non-parole period.
The judge correctly referred to the maximum penalty for the offence to which the applicant had pleaded guilty as one at the top of the range of maximum penalties for offences in the State. The judge went on to say :
But for the plea of guilty, I would have sentence this offender to an overall sentence of 10 years. I believe that would have properly reflected the very serious nature of this crime including the grievous bodily harm in all its dimensions that has been suffered by Mrs Moore. As I have said, I propose to discount the sentence by 10% and that reduces the overall sentence to one of nine years.
Herein lies the applicant's complaint. It is submitted that the starting point of 10 years imports a non-parole period (absent special circumstances) of 7.5 years, that is, 6 months more than the standard non-parole period. Then it is submitted that the resulting head sentence of 9 years yields a non-parole period (absent special circumstances) of 6 years and 9 months, only 3 months less than the standard non parole period. The submission continues in this vein : that as a matter of logic, once the standard non parole period was held not to apply, the starting point for the sentence “would be expected to be a sentence with a non parole period less than the standard non parole period.” In other words, the judge’s starting point was too high.
In support of this argument, it is further submitted that the judge’s remarks referred to at [22] demonstrate that he was unduly influenced by the maximum penalty. The applicant relies upon the following passage in Way at [53] to justify a submission that the standard non parole period “was of greater significance than the maximum penalty” :-
There is nothing in Division 1A to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences. (italics not in original)
However, it is important to read this passage from Way in context. Immediately thereafter, the following appears in the Court’s judgment :-
54 As will be mentioned later in these reasons, this may well result in some change in the established sentencing pattern for these offences, or at least some of them, with an overall increase in the non-parole periods and terms of the sentences.
55 Irrespective of these considerations, there is no basis for assuming that guideline judgments of this Court are to have any less relevance, or that there is to be a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice. (italics not in original)
This was precisely what the judge did in this case : he exercised his discretion according to “the very serious nature of this crime including the grievous bodily harm in all its dimensions”. The starting point of 10 years imprisonment reflected the judge’s finding that the offence fell within the mid-range for offences of this type, and at the end of the day, consistent with the judge’s decision not to apply the standard non parole period, the applicant did not receive a non parole period of 7 years. He received a lesser non parole period which the judge considered appropriate to the objective gravity of the offence.
I would not regard a lesser sentence as capable of meeting the applicant’s serious criminality. There has been no error in the exercise of the sentencing discretion. The orders I propose are :-
Leave to appeal granted.
Appeal dismissed.

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LAST UPDATED:
26 June 2008