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Moore v The Queen

Moore v The Queen

Case [2019] NSWCCA 264 4 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Moore v R [2019] NSWCCA 264
Hearing dates: 16 October 2019
Decision date: 04 November 2019
Before: Macfarlan JA at [1];
Johnson J at [2];
R A Hulme J at [8]
Decision:
1. Time to file Notice of Application for Leave to Appeal is extended to 25 July 2019.
2. Leave to appeal against sentence is granted.
3. The appeal is dismissed.

Catchwords: CRIME – appeal against sentence – aggregate sentence imposed for serious domestic violence offences – no error in assessment of objective seriousness of counts 1 and 4 – no error in less than favourable findings for prospects of rehabilitation or risk of re-offending – whether sentence was manifestly excessive – limited utility of statistics and cases for comparison – no error in assessment of indicative sentences for individual offences – no error in degree to which the indicative sentences were partially accumulated
Legislation Cited: Crimes Act 1900 (NSW), ss 33, 33(1)(b), 33B(1)(a), 86(2)(b)
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Evidence Act 1995 (NSW), s 136
Cases Cited: AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cherry v R [2017] NSWCCA 150
Heron v R [2006] NSWCCA 215
Majzoub v R [2019] NSWCCA 94
Nguyen v R [2019] NSWCCA 87
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v Burton [2008] NSWCCA 128
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Mulato [2006] NSWCCA 282
R v Williams [2004] NSWCCA 246; (2004) 148 A Crim R 325
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Paul Phillip Moore (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms K Stares (Applicant)
Mr D Patch (Crown)
Solicitors:
Velasquez Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/337006
Decision under appeal

Court or tribunal:

District Court

Citation:

R v Paul Phillip Moore [2018] NSWDC 228

Date of Decision:

24 August 2018

Before:

Colefax SC DCJ

File Number(s):

2016/337006

HEADNOTE

[This headnote isnotto be read as part of the judgment]

Mr Paul Phillip Moore (the applicant) pleaded guilty to three offences: cause grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) Crimes Act 1900 (NSW) (Count 1); detain with intent to obtain an advantage, namely a psychological advantage, and immediately beforehand occasion actual bodily harm, contrary to s 86(2)(b) (Count 2); and use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1)(a) (Count 3).
The course of conduct in which the offences were committed began when the applicant ambushed his ex-partner outside her house, beating her around the head and body with…

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 [2019] NSWCCA 264
Case: [2019] NSWCCA 264
Decision Date: 04 November 2019

CaseChat Overview and Summary

The appellant was convicted of multiple offences of domestic violence and was sentenced to an aggregate term of imprisonment. The appeal was against the sentence imposed, which the appellant contended was manifestly excessive. The High Court of Australia was tasked with reviewing the sentence and determining whether the trial judge had erred in his assessment of the objective seriousness of the offences, the prospects of rehabilitation, the risk of re-offending, and the degree to which the indicative sentences were accumulated.

The legal issues before the court included whether the trial judge had erred in his assessment of the objective seriousness of the offences, particularly counts 1 and 4. The court also needed to determine if the judge had erred in making less than favourable findings for the prospects of rehabilitation or the risk of re-offending. Additionally, the court had to consider whether the aggregate sentence was manifestly excessive and if the degree to which the indicative sentences were partially accumulated was appropriate.

The court found that there was no error in the trial judge's assessment of the objective seriousness of the offences, nor in his less than favourable findings for the prospects of rehabilitation or risk of re-offending. The court held that while the statistics and cases for comparison were of limited utility, the trial judge's assessment of the indicative sentences for the individual offences and the degree to which they were partially accumulated was not erroneous. The court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

The High Court affirmed the sentence imposed by the trial court. The appeal was dismissed, and the original sentence was upheld.

Orders