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R v Moore

R v Moore

Case [2005] NSWCCA 212 17 June 2005

Criminal Liability

Sentencing

Assistance and plea of guilty

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Wayne Robert Moore [2005] NSWCCA 212

FILE NUMBER(S):
2005/485

HEARING DATE(S): 01/06/05

JUDGMENT DATE: 17/06/2005

PARTIES:
Crown
Wayne Robert Moore - Applicant

JUDGMENT OF: Studdert J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0470

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
M Kelly - Crown
T Watts - Applicant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Applicant

CATCHWORDS:
Possession of prohibited imports (MDMA) - sentence - departure from usual proportion between head sentence and non parole period - Assistance and plea of guilty - discount.

LEGISLATION CITED:
Customs Act 1901

DECISION:
1. Leave granted to appeal; 2. Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/485
STUDDERT J
HOWIE J
LATHAM J
17 June 2005

REGINA v WAYNE ROBERT MOORE

Judgment

STUDDERT J: I agree with Latham J
HOWIE J: I agree with Latham J
LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 2 September 2004, following a plea of guilty to a charge under s 233B (1)(a) (vi) of the Customs Act 1901 (the Act), namely that he was in possession of prohibited imports, being a quantity of MDMA not less than the commercial quantity applicable to that drug. The offence carries a maximum penalty of life imprisonment.
The commercial quantity for MDMA under the Act is 500 grams. The applicant was sentenced on the basis that he had in his possession 92.442 kilograms of pure MDMA. The applicant was sentenced to a term of twenty years imprisonment with a fifteen year non-parole period to commence on 24 December 2002.
The grounds of appeal assert that the sentence is manifestly excessive and that the discount allowed for the assistance provided by the applicant and the offer of further assistance was insufficient in the circumstances. A further alternate ground asserts that the total discount given for the assistance, the plea of guilty and remorse and contrition was insufficient. In addition, the applicant asserts error in that the sentencing judge fixed a non-parole period which was seventy-five percent of the total sentence.
A comprehensive statement of facts was before the sentencing judge as Exhibit A in the proceedings. In short form, between 8 October and 24 December 2002, the applicant was a party to an arrangement with persons known as Ballis, Anderson and Hinke, whereby the applicant was to obtain possession of approximately 980,000 MDMA or ecstasy tablets which had been imported from the Netherlands. Between those dates, the applicant had communicated on a number of occasions with Ballis, Anderson and Hinke concerning the anticipated importation of the MDMA tablets. Anderson was located in the Netherlands, whilst Ballis and Hinke were in Australia at the relevant time. Ballis, Anderson and Hinke were jointly responsible for procuring the supply of the ecstasy tablets from the importers to the applicant.
Between 10 December and 16 December 2002 the applicant assisted Hinke in his…

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 [2005] NSWCCA 212
Case: [2005] NSWCCA 212
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the case of R v Moore, the defendant was charged with possessing a prohibited import, specifically MDMA, and the matter was heard in a court of criminal jurisdiction in Australia. The dispute centred on the appropriate sentence for the defendant, particularly the balance between the head sentence and the non-parole period, and the application of any discounts for assistance and a plea of guilty.

The court was required to determine whether the sentence imposed by the trial judge was appropriate, particularly whether the non-parole period was excessive. Additionally, the court had to assess the extent to which the defendant's assistance and plea of guilty should influence the sentence.

The court examined the sentencing principles and considered the defendant's level of involvement, the quantity of the prohibited substance, and the potential harm caused by the importation. The court noted that the defendant had provided significant assistance and entered a plea of guilty, which warranted a discount. After carefully weighing these factors, the court concluded that the non-parole period was excessive and reduced it, while acknowledging the mitigating factors. The court determined that the sentence should reflect the defendant's cooperation and early guilty plea.

The court ordered a reduction in the non-parole period, while maintaining the overall sentence length to reflect the seriousness of the offence. The revised sentence was deemed to be a just and appropriate response to the defendant's actions, taking into account all relevant factors.

Orders