Moore v The Queen - [2006] NTCCA 6

Moore v The Queen [2006] NTCCA 06
PARTIES:MOORE, ANDREW JAMES
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 20 of 2004 (20322965)
DELIVERED:  23 February 2006
HEARING DATES:  16 and 23 February 2006
JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ
CATCHWORDS:

CRIMINAL LAW – Sentence – general principles – sexual offence against sleeping woman – factors to be taken into account – role of appellate court – appeal allowed – applicant resentenced
Criminal Code s 192(3)
Liddy v R [2005] NTCCA 4; R v Hope, unreported, 30 October 2001, CA 215/01; R v Sullivan, unreported, VICCCA, 13 May 1998, BC98020760; Wiren v R (1996) 89 A Crim R 356; referred to
REPRESENTATION:
Counsel:
Applicant:P Elliott
Respondent:  A Elliott
Solicitors:
Applicant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Mil06370
Number of pages:  9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Moore v The Queen [2006] NTCCA 06

No. CA 20 of 2004 (20322965)
BETWEEN:

ANDREW JAMES MOORE

Applicant

AND:

THE QUEEN

Respondent

CORAM: ANGEL, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 23 February 2006)
THE COURT:

This is an application for leave to appeal against a sentence imposed upon the applicant. The sole ground of the proposed appeal was that the sentence imposed was manifestly excessive in all of the circumstances of the offence and the offender.
The applicant was indicted for having had sexual intercourse with one A A without her consent, contrary to s 192(3) of the Criminal Code. The applicant entered a plea of not guilty to that charge. He admitted that sexual intercourse occurred, but he put consent in issue. By its verdict of guilty the jury was satisfied beyond reasonable doubt that the applicant had sexual intercourse with Ms A at a time when she was either asleep or had blacked out and that accordingly she had not given her consent to sexual intercourse.
The learned trial Judge found that Ms A had fallen asleep on the bed in the bedroom with her boyfriend, J C. Mr C lived in a unit. Ms A had been drinking heavily during the day. She became ill and vomited. She then went to bed. She fell asleep on Mr C's bed. She was naked at that time. Her boyfriend, Mr C, was asleep in the bed beside her.
Mr C had also been drinking heavily and had passed out at an earlier time in the day. Neither Ms A nor Mr C were aware that the applicant had had sexual intercourse with Ms A until some days later when DNA and other evidence identified sperm found in the vagina of Ms A as being that of the applicant.
The learned trial Judge found that Ms A woke up some time around 4.00 pm on the day in question. She was lying on…

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 Queen

Details

AGLC: Moore v The Queen [2006] NTCCA 6
Case: [2006] NTCCA 6
Decision Date: 23 February 2006

CaseChat Overview and Summary

Moore appealed against his sentence for a sexual offence against a sleeping woman, imposed by the Supreme Court of the Northern Territory. The appeal concerned the principles of sentencing for such offences and the role of an appellate court in reviewing sentences.

The central legal issue before the Court of Criminal Appeal of the Northern Territory was whether the sentencing judge had erred in the application of sentencing principles, particularly concerning the gravity of the offence and the appropriate weight to be given to various factors in determining the sentence. The court was required to consider whether the sentence imposed was manifestly excessive or otherwise unjust.

The court allowed the appeal, finding that the sentencing judge had placed undue emphasis on certain factors and had not adequately considered others, leading to an erroneous sentence. The court applied established sentencing principles, including those relating to the need for deterrence, punishment, rehabilitation, and the protection of the community, while also considering the specific circumstances of the offence and the offender. The court resentenced the applicant, reducing the original term of imprisonment.

Orders