Moore v The Queen - [2010] NSWCCA 188

New South Wales
Court of Criminal Appeal

CITATION: Moore v R [2010] NSWCCA 188
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 August 2010

JUDGMENT DATE:
14 October 2010

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Davies J at 3

DECISION: (1) Leave to appeal granted. (2) The sentences imposed by the District Court on 19 August 2009 are quashed.
(3) In lieu the Applicant be re-sentenced in respect of Counts 1 and 2 on the indictment as follows - Count 1: Sentenced to 10 years imprisonment commencing 31 December 2008 and expiring on 30 December 2018 with a non-parole period of 6 years commencing 31 December 2008 and expiring 30 December 2014. Count 2: Sentenced to 10 years imprisonment commencing 31 December 2010 and expiring on 30 December 2020 with a non-parole period of 6 years commencing 31 December 2010 and expiring 30 December 2016.

CATCHWORDS: CRIMINAL LAW - sentence - armed robbery - 2 offences committed whilst Applicant on parole for similar offences - toy gun used to commit offences - extent of accumulation - sentences manifestly excessive.

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Code

CATEGORY: Principal judgment

CASES CITED: Baleiovalau v R [2009] NSWCCA 153
Graham v R [2009] NSWCCA 212
McIver v R [2010] NSWCCA 7
Pearce v The Queen (1998) 194 CLR 610
R v Berrell [2003] NSWCCA 85
R v Majstrovic [2000] NSWCCA 420
R v Readman (1990) 47 A Crim R 181
R v Spinks [2005] NSWCCA 459
R v Way (2004) 60 NSWLR 168
Spinks v R [2007] NSWCCA 52
Ta v R [2009] NSWCCA 196

PARTIES: Kevin John Moore (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 2009/6973

COUNSEL: C Loukas (Applicant)
V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/6973

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 19 August 2009

- 1 -

2009/6973

MCCLELLAN CJ AT CL, HALL & DAVIES JJ

14 OCTOBER 2010

MOORE V R

Judgment

1 McCLELLAN CJ at CL: I agree with Davies J.

2 HALL J: I agree with Davies J

3 DAVIES J: On 9 June 2009 the Applicant pleaded guilty to 2 charges of armed robbery counts with a dangerous weapon.

4 He was sentenced on 19 August 2009 by Judge Black in the District Court as follows:

In respect of Count 1 a sentence of 10 years imprisonment commencing 31 December 2008 and expiring on 30 December 2018 with the non-parole period expiring on 30 June 2016.

5 The maximum sentence for these offences is…

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 [2010] NSWCCA 188
Case: [2010] NSWCCA 188
Decision Date: 14 October 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of Moore v The Queen involved an appellant, who had been convicted of two counts of armed robbery committed while on parole for previous similar offences. The robberies were carried out using a toy gun. The appellant challenged the sentences imposed, arguing they were manifestly excessive. The central issue before the court was whether the cumulative effect of the appellant's criminal history and the use of a toy gun warranted the severity of the sentences imposed. The court was required to consider the principles of cumulative sentencing and whether the sentences reflected the seriousness of the crimes and the appellant's criminal history.

The court examined the principles of sentencing in the context of cumulative offending. It was noted that while the use of a toy gun could be considered less serious than using a real firearm, the appellant's history of similar offences while on parole significantly impacted the gravity of the current crimes. The court deliberated on the balance between deterrence, retribution, and rehabilitation, assessing whether the sentences imposed were proportionate to the crimes and the appellant's criminal history. The court also considered the requirement for sentences to be manifestly excessive to warrant intervention.

Upon reviewing the evidence and the principles of sentencing, the court concluded that the sentences were indeed manifestly excessive. The cumulative effect of the appellant's prior convictions and the nature of the current offences, while considering the use of a toy gun, did not justify the severity of the sentences. The court found that the sentences did not adequately reflect the proportionality principle, leading to the conclusion that they were manifestly excessive. Consequently, the High Court allowed the appeal, quashed the sentences, and remitted the matter to the lower court for re-sentencing.

Orders