R v Moon

Case [2000] NSWCCA 534 14 December 2000

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Reported Decision: 117 A Crim R 497

New South Wales

Court of Criminal Appeal

CITATION: Regina v Moon [2000] NSWCCA 534

FILE NUMBER(S): CCA 60710/99

HEARING DATE(S): 01/12/00

JUDGMENT DATE:
14 December 2000

PARTIES :

Regina v Leonard Raymond Moon

JUDGMENT OF: Fitzgerald JA at 1; Whealy J at 6; Howie J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/41/0212

LOWER COURT JUDICIAL
OFFICER : J. B. Phelan DCJ

COUNSEL : H. Dhanji - Applicant
T. L. Buddin SC - Crown

SOLICITORS: D. J. Humphreys - Applicant
S. E. O'Connor - DDP

LEGISLATION CITED: Crimes Act 1900
Sentencing Act 1989
Interpretation Act 1987 NSW
Crimes (Amendment) Act 1984
Sentencing (Criminal Procedure Act)

CASES CITED:
R v Shore (1992) 66 A Crim R 37 at 42
R v Watson (1999 NSWCCA 227 (unreported) 12 August 1999)
R v Maclay (1990) 19 NSWLR 112
Radenkovic v The Queen (1990) 170 CLR 623
R v T (1990) 47 A Crim R 29
R v Theobald (unreported NSWCCA 22 July 1994)
R v Bo Too (unreported NSWCCA 16 July 1992)
R v Combo (1971) 1 NSWLR 703
R v Moffitt (1990) 49 A Crim R 20 at 38
House v The King (1936) 55 CLR 499 at 505
Dinsdale v The Queen (2000) HCA 54 at paras (3-6)
Lowndes v The Queen (1999) 195 CLR 665 at 671-672
R v JCW [2000] NSWCCA 209 at paras 30-38
Sha (1988) 38 A Crim R 334 at 335
R v Peel [1971] 1 NSWLR 247
Oliver (1980) 7 A Crim R 174
Veen v The Queen (No 2) (1988) 164 CLR 465 at 478
Ibbs v The Queen (1987) 163 CLR 447 at 451
Gilson v The Queen (1991) 172 CLR 353 at 364
Baumer v The Queen (1988) 166 CLR 51 at 57
Dodd (1991) 57 A Crim R 549
Veen v The Queen (1979) 143 CLR 458

DECISION: By majority - grant leave to appeal and allow the appeal. The sentences imposed upon the applicant should be quashed. In respect of each offence the applicant should be sentenced to 18 months imprisonment with a non parole period of 13 months 10 days. The sentence is to commence on 5 November 1999 and the non parole period is to expire on 14 December 2000 the date upon which the applicant is to be released to parole.

IN THE COURT

OF CRIMINAL APPEAL

60710/99

FITZGERALD JA
WHEALY J
HOWIE J

THURSDAY 14 December 2000

REGINA v Leonard Raymond MOON

JUDGMENT

1 FITZGERALD JA: The judgments of the other members of the Court make it unnecessary for me to do more than state my conclusions. 2 On 11 November 1999, the applicant was sentenced for four offences of indecent assault which he had committed between 1966 and 1971. The applicant had earlier pleaded guilty to the offences. He was sentenced for each offence to a minimum term of 2 years imprisonment to commence on 4 November 1999 and to expire on 3…

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 R v Moon

Details

AGLC: R v Moon [2000] NSWCCA 534
Case: [2000] NSWCCA 534
Decision Date: 14 December 2000

CaseChat Overview and Summary

The Court of Criminal Appeal heard an appeal by Leonard Raymond Moon against his sentence for four offences of indecent assault committed between 1966 and 1971. The applicant had pleaded guilty to the charges and was sentenced by the District Court to a minimum term of two years imprisonment to commence on 4 November 1999 and to expire on 3 November 2001, and an additional term of eight months to expire on 3 July 2002, to be served concurrently. The applicant sought leave to appeal against his sentence on various grounds, including that the sentencing judge erred in sentencing him on the basis that the events took place between 1966 and 1971, that he was not given sufficient credit for his plea, and that he was sentenced in accordance with current sentencing attitudes and principles rather than those applicable at the time of the offence. The Court of Criminal Appeal dismissed the grounds of appeal but found that the sentence was manifestly excessive and allowed the appeal, quashing the sentences imposed. The Court proposed to re-sentence the applicant to 18 months imprisonment with a non parole period of 13 months 10 days, to commence on 5 November 1999 and expire on 14 December 2000, the date upon which the applicant is to be released to parole.

Orders