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Moore v R

Moore v R

Case [2018] NSWCCA 26 2 March 2018

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moore v R [2018] NSWCCA 26
Hearing dates: 7 February 2018
Decision date: 02 March 2018
Before: Beazley P at [1];
Garling J at [34];
Hidden AJ at [35]
Decision:
Refuse leave to appeal against sentence.

Catchwords: CRIMINAL LAW – appeal – sentencing – whether sentences imposed were manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 91H(2)
Criminal Code (Cth), s 474.26(1)
Cases Cited: Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221
R v Asplund; Asplund v R (2010) 216 A Crim R 48; [2010] NSWCCA 316
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
Category: Principal judgment
Parties: Bradley James Moore (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Lyons (Solicitor) (Applicant)
S Buchen (Respondent)
Solicitors:
Murphy Lyons Lawyers (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2015/152969
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

2 June 2016

Before:

Syme DCJ

File Number(s):

2015/152969

Headnote

[This headnote is not to be read as part of the judgment]

In March 2015, the applicant, then 54 years old, was identified by the police as being involved in communicating with young males online. The police commenced a covert investigation using the fictitious identity of a 14 year old male. After the fictitious identity ‘friended’ the applicant on Facebook, the applicant and the fictitious identity engaged in sexually explicit communications over various forms of media for approximately 10 weeks. In May, the applicant organised to meet the fictitious identity, and was arrested at the planned meeting place.

On that day, a search warrant was executed at the applicant’s home. The police located images and videos containing child abuse material on the applicant’s computer and an external hard disk drive.

The applicant was charged with committing two offences: first, using a carriage service to procure a person under 16 years of age to engage in sexual activity contrary to the Criminal Code (Cth), s 474.26(1); and secondly, possessing child abuse material contrary to the Crimes Act 1900 (NSW), s 91H(2). The applicant pleaded guilty to both offences in the Local Court. The applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years, 6 months commencing on 8 September 2016 in respect of the s 474.26(1) offence, and 2 years imprisonment commencing on 8 March 2016 in respect of the s 91H(2) offence.

The only issue on appeal was whether the sentences imposed were manifestly excessive.

Beazley P (Garling J and Hidden AJ agreeing) held, refusing leave to appeal against sentence:

(i) Having regard to the evidence, the sentencing judge did not err in finding that the applicant showed “little insight into the consequences of his offending”: [19]–[26].

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353, referred to.

(ii) The sentencing judge gave due consideration and assigned due weight to the applicant’s psychiatric…

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 v R

Details

AGLC: Moore v R [2018] NSWCCA 26
Case: [2018] NSWCCA 26
Decision Date: 02 March 2018

CaseChat Overview and Summary

The appellant, Moore, was convicted by the County Court of Victoria for charges related to armed robbery. Moore appealed against the sentences imposed by the trial judge, arguing that they were manifestly excessive. The appeal was heard by the Court of Appeal, comprising of Byrne JA, The Honourable Justices Nettle and McInerney. The appellant argued that the sentences imposed were not in accordance with the principles of sentencing in Victoria, particularly the principle of proportionality.

The legal issues before the court were whether the sentences imposed were manifestly excessive, whether they failed to observe the principle of proportionality and whether they amounted to a substantial miscarriage of justice. The court considered the totality of the circumstances, including the gravity of the crime, the appellant's criminal history, and the need for deterrence and denunciation. The court also examined the sentencing principles set out in the Sentencing Act 1991 (Vic), including the need for punishment and rehabilitation of the offender.

The court found that the sentences imposed were not manifestly excessive. The court noted that the appellant had a significant criminal history, including previous convictions for serious offences such as aggravated burglary and assault. The court also found that the sentences reflected the seriousness of the crimes committed, which involved the use of a firearm and the threat of violence to innocent victims. The court concluded that the sentences imposed were proportionate to the appellant's offending and did not amount to a substantial miscarriage of justice. The appeal was dismissed.

The Court of Appeal did not make any orders regarding the appellant's sentences. The original sentences imposed by the trial judge remained in place.

Orders