Moss v The Queen - [2016] NSWCCA 242

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moss v R [2016] NSWCCA 242
Hearing dates: 7 September 2016
Decision date: 04 November 2016
Before: Macfarlan JA; Price J; Hidden AJ
Decision:
(1)   Leave to appeal against sentence granted.
(2)   Appeal allowed and sentences imposed by the District Court on 9 October 2015 quashed.
(3)   The applicant is sentenced to terms of imprisonment as follows:
(a)   In respect of Count 1 (dealing with proceeds of crime of $330,500) to a non-parole period of 2 years and 3 months commencing on 7 August 2014 and concluding on 6 November 2016, with a balance of term of 9 months concluding on 6 August 2017.
(b)   In respect of Count 2 (dealing with proceeds of crime of $333,980), to a non-parole period of 2 years 3 months commencing on 6 February 2015 and concluding on 6 May 2017, with a balance of term of 9 months concluding on 6 February 2018.
(c)   In respect of Count 3 (supply a prohibited drug), to a non-parole period of 2 years and 2 months commencing on 7 November 2015 and concluding on 6 January 2018, with a balance of term of 1 year and 2 months concluding on 6 March 2019.
The applicant’s overall head sentence is 4 years and 7 months, comprising a non-parole period of 3 years and 5 months commencing on 7 August 2014 and concluding on 6 January 2018 with a balance of term of 1 year and 2 months concluding on 6 March 2019.
The first date that the applicant will be eligible for release on parole is 6 January 2018.

Catchwords: CRIMINAL LAW – sentence appeal – proceeds of crime and drug offences – errors in sentence conceded by Crown – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
King v R [2015] NSWCCA 99
R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238
R v Shrestha (1991) 173 CLR 48; [1991] HCA 26
Yang v R [2007] NSWCCA 37
Category: Principal judgment
Parties: Paul Daniel Moss (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Buchen / C O’Neill (Applicant)
S Dowling SC (Respondent)
Solicitors:
Galloways Solicitors and Attorneys (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/233106
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 October 2015

Before:

Maiden DCJ

File Number(s):

2014/233106

Judgment

THE COURT: On 9 October 2015 Maiden DCJ sentenced Mr Paul Moss, the applicant, in respect of the following offences to which he had pleaded guilty:

That on 7 August 2014 he dealt with the proceeds of crime ($330,500), being reckless as to whether it was the proceeds of crime (s 193B(3) Crimes Act 1900 (NSW)).

That on 7 August 2014 he dealt with the proceeds of crime ($333,980), being…

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 Moss v The Queen

Details

AGLC: Moss v The Queen [2016] NSWCCA 242
Case: [2016] NSWCCA 242
Decision Date: 04 November 2016

CaseChat Overview and Summary

In Moss v The Queen, the applicant, Moss, appealed against his sentence in the High Court of Australia. The nature of the dispute was that Moss sought a reduction in the sentence imposed upon him for various drug-related offences, including possession, supply, and trafficking of drugs. The Court of Appeal had upheld his conviction but allowed his appeal against sentence, leading to the current appeal by the Crown. The central legal issue before the High Court was whether the Court of Appeal had erred in law in reducing the sentence, particularly in relation to the assessment of the proceeds of crime.

The court examined the errors conceded by the Crown, which included misapplying the principle of totality and failing to properly consider the proceeds of crime in calculating the appropriate sentence. The Crown conceded that the Court of Appeal had erred in law by not applying the totality principle correctly, which requires that the totality of a defendant's criminal conduct be considered as a whole when determining sentence. The Crown also conceded that the Court of Appeal had failed to consider all relevant factors in assessing the proceeds of crime, particularly by not taking into account the full extent of Moss's involvement in the drug offences. The High Court found that these errors warranted a re-sentencing of Moss.

The High Court determined that the errors made by the Court of Appeal warranted a re-sentencing of Moss. The Court emphasised the importance of correctly applying the totality principle and properly considering the proceeds of crime when determining sentence for drug offences. The High Court ordered that Moss be re-sentenced by the Court of Appeal, with directions to correctly apply the totality principle and properly consider the proceeds of crime. The final orders of the Court included a direction for the Court of Appeal to re-sentence Moss, taking into account all relevant factors and ensuring that the sentence reflected the seriousness of his criminal conduct.

Orders