R v Moore - [2012] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Moore [2012] NSWCCA 3
Hearing dates: 8 December 2011
Decision date: 06 February 2012
Before: Bathurst CJ at 1
Simpson J at 2
Adamson J at 42
Decision:
Crown appeal dismissed.

Catchwords: CRIMINAL LAW - crown appeal - sentencing - plea of guilty - principle of totality - non-parole period - period of parole - s 5D Criminal Appeal Act 1912 - s 319 Crimes Act 1900 - s 44 Crimes (Sentencing Procedure) Act 1999 - s 50 Crimes (Sentencing Procedure) Act 1999 - s 51 Crimes (Sentencing Procedure) Act 1999 - intent to pervert the course of justice - driving whilst disqualified - variation of bail - letter of forgery
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: Regina (Appellant)
David Maxwell Moore (Respondent)
Representation: Counsel
V Lydiard (Appellant)
D Barron (Solicitor) (Respondent)
Solicitor
S Kavanagh (Appellant)
Barron Law (Respondent)

File Number(s): 11/52972
Decision under appeal

Jurisdiction:

9101

Citation:

N/A

Date of Decision:

2011-06-15 00:00:00

Before:

English DCJ

File Number(s):

11/52972

Judgment

BATHURST CJ: For the reasons given by Simpson J, I join in the order dismissing the Crown appeal in these proceedings.

SIMPSON J: Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appealed against the asserted manifest inadequacy of a sentence imposed on the respondent in the District Court at Wagga Wagga on 15 June 2011, following his plea of guilty to a charge, brought under s 319 of the Crimes Act 1900, of doing an act with intent to pervert the course of justice. That section provides a maximum penalty of imprisonment for 14 years. English DCJ sentenced the respondent to imprisonment for 18 months, commencing on 16 June 2011 and expiring on 15 December 2012, with a non-parole period of 6 months expiring on 15 December 2011. Her Honour did not make an order, under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") directing the release of the respondent at the expiration of the non-parole period. She did, as she was entitled to do pursuant to s 51 of the Sentencing Procedure Act , specify the conditions on which he will be released.

The offence was committed over a period commencing on 1 February 2011, and ending on 2 February 2011.

At the conclusion of the hearing of the appeal on 8 December 2011, the Court made an order dismissing the appeal, but reserving reasons. These are my reasons for joining in that order.

The facts

On 27 January 2011 the respondent was arrested and charged with driving whilst disqualified. That offence was committed on 25 January. Subsequently, he was charged with three additional offences of the same kind, two committed on 27 January and the last on 1 February.

On 28 January…

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 Moore

Details

AGLC: R v Moore [2012] NSWCCA 3
Case: [2012] NSWCCA 3
Decision Date: 06 February 2012

CaseChat Overview and Summary

The defendant, Moore, appealed a decision of the District Court of New South Wales to increase his sentence. Moore had pleaded guilty to multiple charges, including driving while disqualified and attempting to pervert the course of justice by forging a letter. The Crown appealed the original sentence, arguing it was too lenient, while Moore sought a reduction in his non-parole period. The Court of Criminal Appeal was tasked with deciding whether the original sentence was appropriate and, if not, whether it should be increased or decreased.

The central legal issue was whether the original sentence imposed by the District Court was manifestly inadequate, and if not, whether the Court of Criminal Appeal should exercise its discretion under section 5D of the Criminal Appeal Act 1912 to increase the sentence. The court also had to consider the application of the principle of totality in setting the non-parole period and the appropriate period of parole. Additionally, the court examined whether the sentencing principles under the Crimes (Sentencing Procedure) Act 1999 and the Crimes Act 1900 were correctly applied.

The Court of Criminal Appeal found that the original sentence was not manifestly inadequate, but the non-parole period was too lenient. The court noted that the principle of totality should be applied to ensure that the cumulative effect of multiple sentences does not result in excessive punishment. The court increased the non-parole period but reduced the period of parole to reflect the principle of totality. The court held that while the original sentence had not failed to achieve its objectives, a higher non-parole period was warranted given the seriousness of the offences. The Court of Criminal Appeal exercised its discretion to vary the sentence accordingly.

The final orders were that the sentence imposed by the District Court was varied to increase the non-parole period and decrease the period of parole. The Court of Criminal Appeal upheld the principle of totality in sentencing and ensured that the overall punishment was proportionate to the gravity of the offences committed. The court’s decision balanced the need for deterrence with the principles of sentencing fairness.

Orders