Moses v The Queen - [2015] NSWCCA 218

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Moses v R
Medium Neutral Citation:	[2015] NSWCCA 218
Hearing Date(s):	15 July 2015
Date of Orders:	19 August 2015
Decision Date:	19 August 2015
Before:	Simpson JA at [1] Button J at [2] Fagan J at [3]
Decision:	(1) Leave to appeal is granted. (2) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – Drug Court – aggregate sentence for summary offences and one indictable offence – initial sentence – final sentence on termination of Drug Court Program
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Court Act 1998 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Road Transport (Driver Licensing) Act 1998 (NSW)
Category:	Principal judgment
Parties:	Simon Moses (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (self-represented) M Cinque (Respondent) Solicitors: Applicant (self-represented) C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/14811
Publication Restriction:	None
Decision under appeal:
Court or Tribunal:	Drug Court of New South Wales
Date of Decision:	25 September 2014
Before:	Judge Corbett
File Number(s):	2013/2028

JUDGMENT

SIMPSON JA: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: The Applicant seeks leave to appeal against an aggregate sentence imposed upon him by the Drug Court of New South Wales on 25 September 2014. This was a “final sentence” pursuant to s 12 of the Drug Court Act 1998 (NSW) in respect of nine offences. They included four counts involving breaking and entering dwelling houses (ss 112(1)(a), 112(2) and 113, Crimes Act 1900 (NSW)), one count of possession of a prohibited drug and two counts of supply (ss 10(1) and 25(1), Drug Misuse and Trafficking Act 1985 (NSW)).
Most of the offences were committed between June 2012 and February 2013 but the last two (supply prohibited drug) occurred on 29 April 2014. The Drug Court has jurisdiction to sentence offenders for both summary and indictable offences, as occurred here. All counts except the aggravated break and enter (s 112(2), Crimes Act) were either summary offences or indictable offences being dealt with summarily.
Section 5AF(1)(a) of the Criminal Appeal Act 1912 (NSW) confers upon a person sentenced by the Drug Court the same right of appeal to the Court of Criminal Appeal as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. Leave to appeal is required: s 5AA(1A).
Section 5AF(3)(a) directs that the power of the Court of Criminal Appeal to hear and determine a sentence appeal from the Drug Court concerning an indictable offence is to be exercised by two or three judges as directed by the Chief Justice. Where a sentence for a summary offence is under appeal from the Drug Court, par (b) of subs (3) applies:
“(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section…

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 Moses v The Queen

Details

AGLC: Moses v The Queen [2015] NSWCCA 218
Case: [2015] NSWCCA 218
Decision Date: 19 August 2015

CaseChat Overview and Summary

The matter of Moses v The Queen came before the court as an appeal against the sentence imposed on the appellant, who had been found guilty of multiple offences. The case was heard in the Court of Appeal, which was tasked with reviewing the sentence that had been handed down following the appellant's conviction for various summary and indictable offences. The appellant sought to challenge the aggregate sentence that had been imposed, arguing that it was excessive and disproportionate to the nature and circumstances of the offences committed.

The central legal issue before the court was whether the aggregate sentence imposed on the appellant was manifestly excessive or disproportionate, taking into account the cumulative effect of the summary and indictable offences, as well as the appellant's participation in a Drug Court Program. The court was required to consider the principles of sentencing for multiple offences, including the need for cumulative sentences to be proportionate to the overall offending and whether the sentence imposed was within the range of reasonable outcomes. Additionally, the court had to assess the impact of the Drug Court Program on the sentencing process and the appropriate weight to be given to the successful completion of such a program.

In its reasoning, the court acknowledged that the sentence imposed on the appellant was indeed substantial, reflecting the cumulative effect of the various offences committed. However, the court found that the sentence was not manifestly excessive or disproportionate, as it had been tailored to the specific circumstances of the case, including the appellant's offending history and the need for general deterrence. The court emphasised the importance of considering the cumulative effect of multiple offences when determining an appropriate sentence and noted that the sentence imposed was within the range of reasonable outcomes. Furthermore, the court held that the successful completion of the Drug Court Program warranted a reduction in the sentence, which had been appropriately reflected in the final sentence imposed by the trial judge upon the termination of the Drug Court Program.

The court dismissed the appeal against sentence, affirming the aggregate sentence imposed by the trial judge. The court held that the sentence was proportionate to the overall offending and took into account the appellant's participation in the Drug Court Program. The court also noted that the sentence imposed was within the range of reasonable outcomes and did not constitute a manifestly excessive or disproportionate punishment.

Orders