Moss v The Queen - [2011] NSWCCA 86

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Moss v R [2011] NSWCCA 86
Hearing dates: 1 April 2011
Decision date: 11 April 2011
Before: Simpson J at 1; Davies J at 31; Grove AJ at 32
Decision:
(i) Leave to appeal granted;
(ii) The appeal allowed to the extent that the order purportedly made with respect to the imposition of parole conditions is set aside;
(iii) The appeal is otherwise dismissed.

Catchwords: CRIMINAL LAW - sentence - appeal against severity - recklessly causing grievous bodily harm - s 35(2) Crimes Act 1900 - applicant unrepresented - applicant accepted sentence was "fair" - no error established
CRIMINAL LAW - sentence - appeal against order for parole conditions imposed - order exceeded power of the Court - order set aside
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Category: Principal judgment
Parties: Raymond Stirling Moss (Applicant)
Regina (Respondent)
Representation: Counsel:
In person (Applicant)
S Dowling (Respondent)
Solicitors:
Not applicable (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/129993
Decision under appeal

Date of Decision:

2010-02-19 00:00:00

Before:

Murrell DCJ

File Number(s):

2009/129993

Judgment

SIMPSON J : The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 19 February 2010 following his conviction after trial on a charge of recklessly causing grievous bodily harm. Pursuant to s 35(2) of the Crimes Act 1900 (under which the charge was brought) the offence carries a maximum penalty of imprisonment for 10 years, and, pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 4 years.

Murrell DCJ sentenced the applicant to imprisonment for 3 years and 9 months, made up of a non-parole period of 2 years, commencing on 28 October 2008, and a balance of term of 1 year and 9 months, which will expire on 27 July 2012. The non-parole period expired on 27 October 2010, and the applicant has been released to parole. Nevertheless, he remains subject to the sentence and liable, if he breaches the conditions of his parole, to be re-incarcerated. In sentencing the applicant, her Honour purported to impose certain specified conditions of parole, including not entering the street where the offence was committed (where the applicant had previously, and the victim did live), not to approach or contact the victim, and, on release from custody, to report to the Probation and Parole Service and accept the supervision of that Service for the whole of the parole period. Her Honour stated that this condition included accepting any direction of the Probation and Parole Service "to undertake any drug and alcohol rehabilitation program", specifically "a fulltime live-in" drug and alcohol program.

The applicant was, in fact, charged with a more serious offence, brought under s 33 of the Crimes Act , of causing grievous bodily harm with intent to do so (a charge which carries a maximum penalty of imprisonment for…

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 [2011] NSWCCA 86
Case: [2011] NSWCCA 86
Decision Date: 11 April 2011

CaseChat Overview and Summary

In Moss v The Queen, the respondent appealed against the severity of his sentence and against an order for parole conditions imposed by the Supreme Court of New South Wales. The respondent had pleaded guilty to recklessly causing grievous bodily harm, a charge under section 35(2) of the Crimes Act 1900. The sentencing court imposed a term of imprisonment, along with a non-parole period and parole conditions. The respondent, unrepresented, accepted that the sentence was fair but appealed against the severity and the parole conditions imposed.

The appeal raised two primary legal issues: whether the sentence imposed was manifestly excessive, and whether the Supreme Court had the power to impose the parole conditions in question. The court examined the sentencing principles and the appropriate range of penalties for the offence. It also considered whether the parole conditions were within the power of the court under the Crimes (Sentencing Procedure) Act 1999. The court focused on whether the appeal against the severity of the sentence was valid, despite the respondent's concession that the sentence was fair, and whether the parole conditions imposed exceeded the statutory authority of the court.

The court found that despite the respondent's concession, the appeal against the severity of the sentence was valid and proceeded to consider the sentence's proportionality. The court determined that the sentence was within the appropriate range for the offence and found no error in the sentencing process. Regarding the parole conditions, the court held that the conditions imposed exceeded the statutory authority of the court. Consequently, the order for parole conditions was set aside, and the case was remitted to the sentencing court for reconsideration of the parole conditions.

The final orders of the court included affirming the sentence but setting aside the order for parole conditions, and remitting the case to the sentencing court for reconsideration of the parole conditions. The appeal against the severity of the sentence was dismissed.

Orders