Moye v The The Queen

[2022] NSWCCA 96

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Moye v R [2022] NSWCCA 96

Hearing dates:

6 May 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Before:

Basten AJA at [1];
Price J at [2];
N Adams J at [29]

Decision:

(1) Leave to appeal against sentence is granted.

(2) The appeal against sentence is allowed.

(3) The sentence imposed by McLennan SC DCJ on 28 October 2020 is quashed.

(4) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 5 years and 9 months, commencing on 25 July 2020, with a non-parole period of 3 years 7 months 4 days, expiring on 28 February 2024.

Catchwords:

CRIME — Appeals — Appeal against sentence – aggregate sentence for offences involving dishonesty – concession by the Crown that sentencing judge was mistaken as to the maximum term of imprisonment for three offences on a s 166 certificate and as to the backdating of sentence – appeal allowed – re-sentence – affidavits tendered on re-sentence – whether more favourable subjective findings should be made

Legislation Cited:

Crimes Act 1900 (NSW), s 527C(1)(c)

Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jason Phillip Moye (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Quilter (Applicant)
E Nicholson (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/233414

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

28 October 2020

Before:

McLennan SC DCJ

File Number(s):

2019/233414

Judgment

1. BASTEN AJA: I agree with Price J.

2. PRICE J: On 28 October 2020, Jason Phillip Moye (the applicant) was sentenced in the District Court at Lismore to an aggregate term of imprisonment of six years commencing on 20 October 2020 with a non-parole period of three years and nine months.

3. The applicant sought leave to appeal his sentence on two grounds:

Ground 1

For three offences the sentencing judge acted on the wrong maximum penalty.

Ground 2

The sentencing judge erred by:

(a) mistaking the facts in relation to the applicant’s period of pre-sentence custody; or

(b) failing to take into account a period of pre-sentence custody.

4. It was apparent from the sentencing judge’s remarks on sentence that his Honour had made the errors complained of. The Crown appropriately made the concession that the appeal should be upheld and this Court should proceed to re-sentence.

5. The applicant had pleaded guilty to 16 counts on an indictment and to five offences which were transferred to the District Court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). Unfortunately, in respect of three of the offences on the s 166 certificate, which were goods on premises suspected of having been stolen contrary to s 527C(1)(c) of the Crimes Act 1900 (NSW), his Honour stated that the maximum penalty was two years’ imprisonment whereas the correct maximum penalty was six months’ imprisonment. For each of these offences, his Honour indicated a sentence of six months’ imprisonment after allowing a discount of 25% for the pleas of guilty in the Local Court. His Honour had accepted the Crown’s submission that these three offences fell at “the lower end of the range of objective seriousness”. It is evident that his Honour acted on the wrong maximum penalty for the offences and Ground 1 of the appeal was established.

6. As to the second ground of appeal his Honour said in his sentencing remarks that the applicant had been in continuous custody since 30 April 2020 whereas the applicant had been in continuous custody since 27 July 2019. The applicant’s relevant custodial history disclosed that on 27 July 2019 he was arrested and bail refused on the charges for which he was sentenced by his Honour. On 30 April 2020, he was sentenced in the Local Court for unrelated matters committed in 2015. The Magistrate imposed a sentenced of two years and six months’ imprisonment with a non-parole period of 12 months, commencing on 30 April 2020.

7. It was agreed by the parties in this Court that the applicant had been bail refused, solely in relation to the District Court offences from 27 July 2019 to 30 April 2020; a period of nine months and four days. However, his Honour commenced the aggregate sentence on 20 October 2020; thus, the back dating of the sentence was confined to eight days. The applicant’s complaint that his Honour was required to take into account the full period of pre-sentence custody of nine months and four days was established.

8. In re-sentencing the applicant, I will adopt the sentencing judge’s findings of objective seriousness and his Honour’s indicative sentences for all the offences (which have not been challenged on appeal), save for the three s 527C(1)(c) offences which are identified as Sequences (‘Seq’) 20, 30 and 34 in the Table below. My indicative sentences for these offences will be two months’ imprisonment instead of 6 months as indicated by the sentencing judge. The Table, which was helpfully provided by the applicant’s counsel, contains a concise summary of the applicant’s offending. All of the indicative sentences take into account the 25% discount for the early pleas of guilty.

#	Charge	Facts	Objective Assessment	Max. Penalty	Indicative Term
1	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	Between 6 and 8 July 2019: The applicant drilled out the rivets to the ensuite bathroom window of a residence to enter the property. The applicant stole a gold bracelet, 4 gold necklaces, 2 gold rings with diamonds and a ‘Mary’ pendant.	Low to mid-range	14 years	2 years 6 months
2	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	Between 4 and 8 July 2019: The applicant forced entry to a residence and removed a 65-inch television, a Nespresso machine, a Dyson vacuum cleaner, 9 towels, and various toiletries.	Towards the lower range	14 years	2 years
3	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	Between 1 May and 19 July 2019: The applicant smashed a ground floor window and gained entry to a residence. He removed two safes, a toaster, some jewellery, a Nutri-bullet, Ugg boots, a box of curry spices, a coffee maker, a Cryovac machine, frozen fish and other household items.	Lower end	14 years	2 years
4	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	Between 21 and 23 July 2019: The applicant forced a locked ground floor rear door of a residence. He removed a surf lifesaving garment, a spade, a stainless- steel sand sieve, a cell LED torch, a fishing kayak, and a metal detector.	Lower end	14 years	2 years
5	Steal from dwelling s 148 Crimes Act 1900 (NSW)	Between 26 and 27 July 2019: The applicant jumped a side fence of a residence. He stole a large plant pot and 5 bags of fertilizer valued at $101 was removed. The property was housed under an awning within the same curtilage of the house and ancillary to the occupation of the premises.	Lower end	7 years	12 months
6	Steal from dwelling s 148 Crimes Act 1900 (NSW)	Between 10 and 11 April 2019: The applicant entered an open garage door of a residence and removed a Kartcher brand water pressure washer and Alpine Stars motorcycle clothing.	Lower end	7 years	12 months
7	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 17 and 18 June 2019: Mountain bike and stand-up paddle board.	Lower end	10 years	9 months
8	Receiving stolen property s 188 Crimes Act 1900 (NSW)	21 June 2019: Mountain bike.	Lower end	10 years	9 months
9	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 24 and 25 June 2019: Merinda mountain bike wheels.	Lower end	10 years	9 months
10	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	Between 19 June and 9 July 2019: The applicant forced the rear laundry door of a residence and removed a doona cover, sheets, pillowcases, and a sandwich press.	Lower end	14 years	2 years
11	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 15 November 2018 and 16 April 2019: Copper wire worth $6,520.	Greater than lower end	10 years	15 months
12	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 19 and 22 July 2019: 150 copper water metres and two generator batteries.	Lower end	10 years	9 months
13	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 10 and 19 July 2019: 4 rings, a war medal, a necklace with a red stone, and three cuff links.	Lower end	10 years	9 months
14	Possessing property suspected of being proceeds of crime s 193C (2) Crimes Act 1900 (NSW)	December 2018 – 5 February 2019: The applicant purchased various garden maintenance tools, machinery and a trailer with funds raised from the sale of copper wire, gold, jewellery, and other household items.	Lower end	3 years	6 months
15	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 12 and 13 July: Television and angle grinder.	Lower end	10 years	9 months
16	Receiving stolen property s 188 Crimes Act 1900 (NSW)	Between 8 and 9 July: 9-carat engagement ring with 3 diamonds removed.	Lower end	10 years	9 months
Seq 1	Possess Drug s 10 Drugs Misuse and Trafficking Act 1985 (NSW)	27 July 2019: 30 grams of cannabis.	Lower end	2 years	4 months
Seq 2	Cultivate drugs s 23(1)(a) Drugs Misuse and Trafficking Act 1985 (NSW)	27 July 2019: The applicant cultivated 8 small cannabis plants in a specialized hydroponics tent.	Lower end	2 years	6 months
Seq 20	Goods on premises s 527C(1)(c) Crimes Act 1900 (NSW)	24 May-27 May 2019: Honda Generator.	Lower end	6 months	2 months
Seq 30	Goods on premises s 527C(1)(c) Crimes Act 1900 (NSW)	27 July 2019: AU $886.20 in various denominations.	Lower end	6 months	2 months
Seq 34	Goods on premises s 527C(1)(c) Crimes Act 1900 (NSW)	28 June 2019: Refrigerant scales.	Lower end	6 months	2 months

9. The applicant does not challenge the following findings made by the sentencing judge as to his subjective case:

1. The applicant’s criminal history deprived him of leniency and highlights the need for specific deterrence and the need to protect the community from him; and

2. The applicant’s moral culpability was not reduced because of his background or his persistent depressive disorder nor did his self-medication with drugs to deal with emotional issues mitigate his offending. Further these issues did not make him an unsuitable vehicle for general deterrence.

10. These findings are well-founded and I will adopt them in re-sentencing the applicant.

11. Further findings made by the sentencing judge were:

1. There was no clear evidence of remorse;

2. His prospects of rehabilitation were problematic but not non-existent; and

3. He is more likely than not to re-offend.

12. The applicant tendered on re-sentence his affidavit affirmed on 13 April 2022 and an affidavit affirmed by his solicitor Danka Durovic on 14 April 2022. The applicant submitted that the affidavits may justify more favourable findings on remorse, rehabilitation and likelihood of reoffending.

13. The Crown tendered on re-sentence an affidavit of Philippa Winston, a solicitor employed by the Office of the Director of Public Prosecutions, affirmed on 29 April 2022. Ms Winston’s affidavit provided details of the Local Court sentence. The applicant was sentenced for 29 offences which included charges of common assault, damaging property and stalking/intimidating intending to cause fear. Those offences all pertained to offences against his mother.

14. The applicant is now 39 years of age. He was born on 24 February 1983 and was aged 35 to 36 at the time of the offences.

15. Shortly stated, the applicant’s affidavit discloses his work history since being sentenced and the completion of various vocational programs. He also related the difficulties that the COVID-19 pandemic has created for visits from his mother and his Nan, and the hardship experienced during the lockdowns at the Cessnock Correctional Centre during a COVID outbreak lockdown in March 2022.

16. Ms Durovic’s affidavit also refers to the applicant’s progress in custody and the courses undertaken.

17. Both affidavits refer to an incident on 8 September 2021 when the applicant was overheard discussing a drug drop over the telephone which resulted in his re-classification to a “CI” and to misconduct on 21 February 2022 when buprenorphine strips were found in the applicant’s cell. The applicant stated that he was holding the strips for another inmate in return for “buy-ups”.

18. During the proceedings on sentence before the sentencing judge the applicant’s prior criminal history, a sentencing assessment report, and a report from Emma Hubner, a forensic psychologist, were tendered.

19. The applicant’s lengthy prior criminal history discloses serious offences of violence and dishonesty. He also has convictions for the supply and possession of prohibited drugs and firearm offences. The tendered reports refer to his history of problematic drug abuse. The sentencing assessment report states that the applicant is at a Medium to High risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).

20. The material contained in the tendered affidavits does not persuade me to take a more positive view of the applicant’s prospects of rehabilitation. I agree with the sentencing judge’s assessment that the applicant’s prospects of rehabilitation are problematic but not non-existent. The likelihood of his re-offending, in my assessment, remains uncertain and is dependent upon his ability to overcome prohibited drug use upon release.

21. The applicant’s affidavit does not assist on the issue of remorse and I adopt the sentencing judge’s assessment on this issue.

22. A modest allowance on re-sentence for the difficulties experienced in custody by the applicant due to COVID-19 will be made.

23. In this Court, the parties agreed that the applicant has served 650 days in custody solely referrable to the District Court charges. The parties submitted that a commencement date of 25 July 2020 would account for this period in custody.

24. The applicant was sentenced in the Ballina Local Court on 30 April 2020 for 29 offences to an aggregate term of imprisonment of two years and six months with a non-parole period of 12 months, commencing 30 April 2020. The suggested commencement date is nine months and four days before the expiration of the non-parole period of the Local Court sentence.

25. In considering the principle of totality, it is necessary to take into account the Local Court sentence. The applicant’s offences for which he was sentenced in the Local Court are independent and discrete acts of criminality. In the present case, the suggested commencement date will appropriately reflect partial concurrency.

26. The sentencing judge’s finding of special circumstances was not challenged and is adopted on re-sentence. The ratio of 62.5% between the head sentence and the non-parole period is maintained.

27. Accordingly, the orders that I propose are as follows:

1. Leave to appeal against sentence is granted.

2. The appeal against sentence is allowed.

3. The sentence imposed by McLennan SC DCJ on 28 October 2020 is quashed.

4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 5 years and 9 months, commencing on 25 July 2020, with a non-parole period of 3 years 7 months 4 days, expiring on 28 February 2024.

28. The earliest date the applicant will be eligible for release to parole is on 29 February 2024.

29. N ADAMS J: I agree with Price J. It is regrettable that the legal practitioners who appeared before the sentencing judge did not correct the two identifiable errors in this matter. When his Honour misstated the maximum penalty that should have been brought to his attention at that time. The error was expressed at the beginning of his sentencing reasons. If it had been brought to his Honour’s attention at that time he could have adjourned to briefly reconsider the proposed sentence. Similarly, when his Honour stated that he would backdate the sentence by the agreed amount and then did not do so, that fact could have been brought to his attention immediately. It is the duty of legal practitioners appearing on sentence to correct errors of this type. It is to be accepted that one may be nervous to interrupt a judge but at the very least it should be done after the reasons have been given and before the sentence is passed. Sentencing judges in busy lists require the assistance of legal practitioners on matters such as these.

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Decision last updated: 13 May 2022