Moore v The Queen - [2016] NSWCCA 300

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moore v R [2016] NSWCCA 300
Hearing dates: 28 November 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Before: Hoeben CJ at CL at [1]
Adams J at [80]
R A Hulme J at [87]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – murder – applicant was mother of principal assailant – participation in joint criminal enterprise resulting in death of deceased – applicant actively encouraging principal assailant – objective criminality substantial – whether parity principle properly applied – whether level of planning should have been given “real weight” – whether s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) properly applied – need to resentence – no lesser sentence warranted – appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 18
Crimes (Sentencing Procedure) Act 1999 – s 21A
Criminal Appeal Act 1912 - ss 5(1)(c), 6(3)
Cases Cited: Fahs v Regina [2007] NSWCCA 26
Giorgianni v The Queen [1985] HCA 29;156 CLR 473
House v R [1936] HCA 40; 55 CLR 499
Moore v R [2016] NSWCCA 185
Mulato v R [2006] NSWCCA 282
Pearce v R [1998] HCA 57; 194 CLR 610
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Swan [2006] NSWCCA 47
RL v R [2015] NSWCCA 106
Category: Principal judgment
Parties: Michelle Kathleen Moore – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr E Ozen – Applicant
Ms Maria Cinque SC - Respondent Crown
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/338749
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Moore; R v Price [2015] NSWSC 1101

Date of Decision:

07 August 2015

Before:

Garling J

File Number(s):

2012/338749

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 4 May 2015 the applicant was arraigned before Garling J and a jury of twelve on a charge of murder, contrary to s 18 of the Crimes Act 1900. This offence carries a maximum penalty of imprisonment for life with a standard non-parole period of 20 years. The applicant was tried jointly with her husband, Brendan James Price.

On 30 May 2015 the jury delivered a verdict of guilty of murder with respect to both offenders.
On 7 August 2015 Garling J sentenced the applicant and Mr Price as follows:

The applicant – imprisonment with a non-parole period of 15 years, commencing 22 November 2012 and expiring 21 November 2027 with a balance of term of 7 years expiring 21 November 2034.

Mr Price – imprisonment with a non-parole period of 12 years, commencing 22 November 2012 and expiring 21 November 2024 with a balance of term of 6 years expiring 21 November 2030.

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed…

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 [2016] NSWCCA 300
Case: [2016] NSWCCA 300
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of Moore v The Queen involved the appellant, who was the mother of the principal assailant, appealing against her sentence for her role in a joint criminal enterprise that resulted in the death of the deceased. The appellant actively encouraged and supported the principal assailant during the crime. The appeal focused on whether the sentencing court appropriately applied the principles of parity and whether the level of planning involved warranted significant consideration. The court also examined whether section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was correctly applied. The appeal centred on the appropriateness of the sentence and whether a lesser sentence was warranted.

The central legal issues in the appeal were whether the sentencing court correctly applied the principles of parity and the extent to which the level of planning should have been considered in determining the sentence. The appellant argued that her level of planning and preparation was not adequately taken into account, which resulted in an excessive sentence. The appellant also contended that the sentencing court did not properly apply section 21A of the Act, which mandates consideration of the offender’s culpability and the circumstances of the offence. These issues were critical in determining whether the sentence was proportionate and whether a re-sentencing was necessary.

The court found that the sentencing judge had appropriately applied the principles of parity and had given the level of planning due consideration. It was determined that the appellant’s objective criminality was substantial and warranted a severe sentence. The court held that the sentencing judge had not erred in applying section 21A of the Act, as the culpability and the nature of the crime justified the sentence imposed. The appeal was dismissed as the court found no basis for a lesser sentence and concluded that the sentence was proportionate to the crime committed.

Orders