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Moore v The King

Moore v The King

Case [2024] NSWCCA 115 8 July 2024

Appeal

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moore v R [2024] NSWCCA 115
Hearing dates: 31 May 2024
Date of orders: 8 July 2024
Decision date: 08 July 2024
Before: Harrison CJ at CL at [1]
Davies J at [2]
Sweeney J at [109]
Decision:
(1) Extend the time for the applicant to seek leave to appeal to 2 April 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – two charge sets comprising seven counts – assault occasioning actual bodily harm, sexual intercourse and record an intimate image without consent – influence witness, aggravated detain and intentionally choke – where applicant reported traumatic childhood characterised by domestic and sexual violence – where applicant diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits – whether sentencing judge failed to consider mental health and Bugmy factors – where sentencing judge reduced moral culpability by reason of Bugmy factors – where sentencing judge made a finding of special circumstances – ex tempore judgment – sentencing judge is not obliged to refer to every part of a psychological report – no submission about a causal connection between mental health and the offending was made – sentencing judge did not err by giving weight to general and specific deterrence given the applicant’s criminal record – no error – ground rejected
CRIME – appeals – appeal against sentence – where parties had previously agreed to film their sexual activity – where parties’ sexual relationship involved dominating and degrading behaviour – applicant filmed sexual activity whilst the complainant was unconscious – whether sentencing judge erred in finding of objective seriousness – whether nature of the parties’ sexual relationship ought to have reduced objective seriousness – sentencing judge’s findings of fact accorded entirely with agreed statement of facts – agreement to film sexual activity did not extend to sexual intercourse whilst the complaint was unconscious – sentencing judge did not err by finding that the sexual intercourse was accompanied by degrading and violent acts – determination open to his Honour – ground rejected
CRIME – appeals – appeal against sentence – manifest excess – where applicant contends indicative sentences for sexual intercourse without consent were excessive – challenge can only be made to the aggregate sentence – indicative sentences open to sentencing judge – comparable cases of limited utility given number of offences and seriousness of present offending – offending involved serious domestic violence over a six month period – sentence not plainly unjust – ground rejected – sentence appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 37, 59, 61I, 86, 91P, 195, 323, 324
Drug Misuse and Trafficking Act 1985 (NSW) ss 13, 21

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Bussey v R [2020] NSWCCA 280
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Harper v R [2022] NSWCCA…

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 The King

Details

AGLC: Moore v The King [2024] NSWCCA 115
Case: [2024] NSWCCA 115
Decision Date: 08 July 2024

CaseChat Overview and Summary

The appellant in this case, Moore, appealed against his sentence following a conviction on seven charges, including assault occasioning actual bodily harm, sexual intercourse without consent, recording an intimate image without consent, influencing a witness, aggravated detain, and intentionally choking. The appeal was heard in the High Court of Australia. The appellant raised several grounds for appeal, focusing primarily on the sentencing judge's consideration of his mental health and Indigenous status, as well as the objective seriousness of the offences.

The primary legal issues the court had to address were whether the sentencing judge appropriately considered the appellant's mental health and Indigenous status, whether the judge erred in assessing the objective seriousness of the offences, and whether the sentence imposed was manifestly excessive. The court had to determine if the sentencing judge's failure to refer to every part of the psychological report constituted an error and whether the weight given to general and specific deterrence was appropriate. The court also needed to consider whether the appellant's criminal history justified the sentence.

The High Court held that there was no error in the sentencing judge's approach. The court found that the sentencing judge was not obliged to refer to every part of the psychological report and that no submission about a causal connection between mental health and the offending was made. The court also held that the sentencing judge did not err by giving weight to general and specific deterrence, given the appellant’s criminal record. The court found that the sentencing judge's findings of fact were in line with the agreed statement of facts and that the nature of the parties' sexual relationship did not reduce the objective seriousness of the offences. The court concluded that the sentence was not plainly unjust and dismissed the appeal.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld.

Orders