Moule v The The Queen - [2022] NSWDC 410

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Moule v R [2022] NSWDC 410
Hearing dates: 3-4 August 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [38]-[40].

Catchwords:
CRIME – APPEAL – AGGREGATE SENTENCE – 5 OFFENCES – Negligent driving causing death – Breach of Public Health Regulation – Possession of a false document – Possession of prohibited drugs (2 counts).
CRIME – APPEAL – SIGNIFICANCE OF MAXIMUM PENALTY – Indicative sentences for drug offences too great – new indicative sentences fixed for drug offences – Sentence fixed using same ration as used in Local Court – Significance of rounding down of periods and special circumstances.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Public Health Act 2010 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Ibbs v The Queen (1987) 163 CLR 447; 74 ALR 1
Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; 77 ALR 835

Texts Cited:
Nil.

Category: Sentence
Parties: Appellant – Adam Moule
R - Crown
Representation: Appellant – Mr Maxton of LegalAid NSW
R - Ms O’Sullivan of the Office of the Director of Public Prosecutions (NSW)

File Number(s): 2021/00100153; 2021/0039496; 2022/00091341
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Crime

Citation:

Nil.

Date of Decision:

19 May 2022

Before:

Christofi LCM

File Number(s):

2021/00100153

Judgment

HIS HONOUR: This is an appeal against a sentence passed by Magistrate Christofi sitting in the Central Local Court on 19 May 2022. The Appellant stood for sentence before his Honour for five separate offences. His Honour imposed an aggregate sentence of imprisonment for two years and fixed a non-parole period of 18 months.
The sentence commenced on 17 November 2021 despite the fact that it was imposed on 17 February 2022, the backdating being due to periods of pre-sentence custody. It is conceded by the Crown that the backdating was to the appropriate date.
The imposition of an aggregate sentence is to be contrasted with the imposition of five separate sentences of imprisonment. Aggregate sentences of imprisonment are provided by s 53A of the Crimes (Sentencing Procedure) Act 1999, which is in the following terms:

“(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following—

(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences…

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 Moule v The The Queen

Details

AGLC: Moule v The The Queen [2022] NSWDC 410
Case: [2022] NSWDC 410
Decision Date: 04 August 2022

CaseChat Overview and Summary

The appellant, Moule, appealed against his sentence for five offences: negligent driving causing death, breach of a public health regulation, possession of a false document, and possession of prohibited drugs (two counts). The matter was heard and determined in the New South Wales Court of Criminal Appeal. The appellant argued that the aggregate sentence imposed by the trial judge was manifestly excessive, and that the trial judge had failed to properly consider the principles applicable to the sentencing of drug offences.

The central legal issues before the court were whether the aggregate sentence was manifestly excessive, and whether the trial judge had correctly applied the principles of sentencing in relation to the drug offences. The court considered whether the trial judge had erred in fixing the indicative sentences for the drug offences, and whether the rounding down of periods and special circumstances had been properly considered.

The court held that the aggregate sentence was not manifestly excessive, and that the trial judge had correctly applied the principles of sentencing in relation to the drug offences. The court found that the trial judge had not erred in fixing the indicative sentences for the drug offences, and that the rounding down of periods and special circumstances had been properly considered. The court concluded that the sentence was appropriate and did not need to be altered.

The orders of the court are set out in paragraphs [38] to [40] of the judgment. The appeal was dismissed, and the sentence imposed by the trial judge was upheld.

Orders

Orders of the court

See pars [38]-[40].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Moule v R [2022] NSWDC 410
Hearing dates:	3-4 August 2022
Date of orders:	4 August 2022
Decision date:	04 August 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [38]-[40].
Catchwords:	CRIME – APPEAL – AGGREGATE SENTENCE – 5 OFFENCES – Negligent driving causing death – Breach of Public Health Regulation – Possession of a false document – Possession of prohibited drugs (2 counts). CRIME – APPEAL – SIGNIFICANCE OF MAXIMUM PENALTY – Indicative sentences for drug offences too great – new indicative sentences fixed for drug offences – Sentence fixed using same ration as used in Local Court – Significance of rounding down of periods and special circumstances.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Public Health Act 2010 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Ibbs v The Queen (1987) 163 CLR 447; 74 ALR 1 Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; 77 ALR 835
Texts Cited:	Nil.
Category:	Sentence
Parties:	Appellant – Adam Moule R - Crown
Representation:	Appellant – Mr Maxton of LegalAid NSW R - Ms O’Sullivan of the Office of the Director of Public Prosecutions (NSW)
File Number(s):	2021/00100153; 2021/0039496; 2022/00091341
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Crime Citation: Nil. Date of Decision: 19 May 2022 Before: Christofi LCM File Number(s): 2021/00100153