R v Moore - [2001] NSWCCA 454

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dominick James Moore [2001] NSWCCA 454

FILE NUMBER(S):
60506/00

HEARING DATE(S): 10 September 2001

JUDGMENT DATE: 10/09/2001

PARTIES:
Regina
Dominick James Moore

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0212

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
M. C. Grogan - Crown
In person - Appellant

SOLICITORS:
S. E. O'Connor - Crown
In person - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NsW)

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60506/00

SULLY J
CARRUTHERS AJ

Monday 10 September 2001

REGINA v DOMINICK JAMES MOORE

JUDGMENT

SULLY J: Mr Dominick James Moore seeks leave to appeal against a sentence of imprisonment imposed upon him by his Honour Judge Nield sitting in the District Court at Bathurst on 19 July 2000.
The applicant had pleaded guilty to one charge of armed robbery. That offence contravenes section 97(1) of the Crimes Act1900 (NSW); and it attracts upon conviction a statutory maximum penalty of imprisonment for twenty years. At the request of the applicant, his Honour took into account in connection with that substantive matter some further offences, which were presented to his Honour scheduled on a Form 1.
The offences thus scheduled embraced a charge of possessing cannabis, a charge of possessing Valium and a charge of possessing equipment for the administration of a prohibited drug.
The sentence passed by his Honour upon Mr Moore was a sentence of imprisonment of four years and six months, to commence on 19 July 2000 and to expire on 18 January 2005. His Honour fixed in connection with that sentence a non-parole period of two years and six months, expiring on 18 January 2003.
Mr Moore, having been refused legal aid or any other form of professional assistance, has appeared for himself in connection with his present application. He is at present held in detention at the Junee Correctional Centre and with, as it would appear, the assistance of another inmate in that correctional centre, Mr Moore has prepared for the assistance of the Court a handwritten document, which sets out in clear and numbered paragraphs, some eleven stated grounds of appeal.

It will be appropriate to return presently to a consideration of each of those grounds, but before doing so it is appropriate to look at the relevant facts. They can be shortly stated, for they were not in dispute at the hearing before Judge Nield.
Two particular ladies were at the relevant time together in the back room of a building in Moulder Street in Orange, that building housing, so far as is now relevant, an operation described as the Gateway Escort Agency. It is clear that the ladies themselves were receptionists or clerical assistants of that kind at the Gateway Escort Agency.

At the relevant time they were counting the money that the agency had taken from clients during the day. They were not aware, but the fact was, that Mr Moore was outside the building in the backyard of the premises. He saw them counting the money. He formed, as it would seem on the spur of the moment, an intent to rob them of the money.
To that end, he took up a piece of timber then lying in the backyard of the premises, and holding the timber, entered the back room of the agency. There he confronted the two ladies of whom I have been speaking, and took from them the money that they were then counting.
In due course, the investigating police interviewed Mr Moore. They asked him what he could tell them about the particular incident that I have previously described. He replied, "Nothing". He was asked whether he had ever been previously to that particular address. He replied, "Haven't been there but I've been past it". Those answers were, of course, untrue.
Later, the police interviewed Mr Moore further. They confronted him with the fact that a fingerprint, clearly traced to him, had been found at the premises. The interviewing police officer asked Mr Moore whether he could explain how it came about that a fingerprint of his, Mr Moore's, had been clearly identified at the scene of the robbery. Mr Moore replied, "It has to be bullshit, it is not my fingerprint".
He was asked whether there was any particular reason that he could advance for the presence of his fingerprint there. He replied, "I used to get over the fence there at night time and have a look through the windows and perve on 'em".
In due course, and at the conclusion of the interview, Mr Moore was taken to another part of the police station to be charged. It seems to be that at that stage, in the course of events, Mr Moore had second thoughts about the stance that he had previously taken in connection with his interviews by the police, and decided that he ought to make a clean breast of his involvement in the incident of which I have been speaking.
He then gave a version which accords, essentially, with the summary of the facts that I have earlier given. He was asked in connection with that version the following questions and gave the following answers:
"Q. Now why was it you grabbed the piece of wood before you went in there?
A. I don't know, just in case there were any blokes or anything in there.
Q. Okay?
A. Or people who could defend themselves, I don't know.
Q. Alright. Well, do you agree then that the lump of wood was to be used as a weapon if need be?
A. Yeah.
Q. Was that your intention?
A. I suppose, I didn't really look at it as that. I just picked it up and went straight in there. I didn't even think about it.
Q. Okay. When these ladies saw you there with a lump of wood and you saying, 'Give me the money', do you think they felt threatened by you standing there with this lump of wood?
A. Yeah, I suppose.
Q. Okay.
A. Scared I would say."
Against the factual background thus sketched, it is now possible to look properly at the individual grounds put forward by Mr Moore in support of his present application.
The first ground is that the sentencing Judge gave an inappropriate emphasis to the guidelines established by the decision of this Court in Regina v Henry (1999) 46 NSWLR 346.
The point of the submission is that the sentencing Judge applied the decision in Henry to the facts of the present case in a way that virtually equated the piece of wood, which the applicant was admittedly carrying at the time of the robbery, with a knife or a similar kind of obviously dangerous offensive weapon, being the kind of weapon with which, in particular, the decision in Henry was concerned.
It is true that the sentencing Judge observed:
"I do not think that either the victim or the witness would have felt less threatened or less intimidated in knowing that the person had not planned what he was doing. I can understand the fear of being confronted by a man with a T-shirt over his head and wielding a 70 centimetre long piece of timber, could have instilled in the victim and the witness."
It was following those observations that his Honour turned in a more particular way to a brief consideration of the relevant sentencing range suggested by the decision in Henry. I think that a fair reading in context of what his Honour said, does not fairly carry the implication which Mr Moore's present submission seeks to draw from it.
I do not think that on a fair view the sentencing Judge was at all intending to equate the piece of timber with something as serious as, for example, a flick knife or a revolver, or something of that kind. I think that what his Honour was seeking to do was to establish what I should have thought common sense itself would have established: namely, that the particular circumstances of the present case were an example of the resolute wielding by an offender of a lump of wood sufficient to instil into the intended victims a very real degree of fear for their safety; and that such conduct came within the sense of the relevant reasoning of the Court in Henry.
The second ground is that further allowance should have been made by the sentencing Judge for what the submission describes as the "totally unplanned, hapless, opportunistic robbery". The short answer to that submission, it seems to me, is to be found in part of the material earlier quoted from the reasons for sentence. I think that the sentencing Judge correctly understood that, although there was a measure of planning in the sense that Mr Moore applied his mind in a deliberate way to arming himself with the piece of wood before carrying out the robbery, the case was not to be treated as one in which there had been deliberate and detailed planning of a criminal offence over a period of time prior to the committing of the offence.
For myself, I see no error in the way in which his Honour dealt with that aspect of the matter.
The third ground depends upon the proposition that the two ladies, of whom I have been speaking, were, as the submission puts it, sex workers. It is sufficient to dispose of that ground to say that it is now frankly conceded by Mr Moore that they were not "sex workers" at all; but were receptionists or the like, or clerical assistants, in the particular premises.
The fourth proposition is that the head sentence and the non-parole period "in the light of comparable decisions would appear at least six months too harsh". The submissions do not, at least so far as I have been able to ascertain, present anything in the nature of a schedule of what are said to be "comparable decisions". In that situation it is not possible, I think, to say more than that, as a matter of fact, the ground, in the terms in which it has been advanced, has not been established.
The fifth ground is not, strictly speaking, a ground of application at all; but is simply an indication of an intention to seek, as the end result of the application, the substitution of another and lower sentence for the sentence, in fact, imposed.
The sixth point is that the sentence is "ungenerous, if not harsh", when looked at in its appropriate place in the appropriate range of sentences for offences of this kind. It is sufficient to say that when the whole of the objective and subjective features are taken into consideration, it does not seem to me that such is the case.
The seventh ground propounds that the sentence in fact passed is supported by a process of reasoning on the part of the sentencing Judge that entails a re-punishment for past offences of the applicant.
The relevant portion of the remarks on sentence will be found at page 4 under a heading "The prisoner's character". The sentencing Judge there canvasses, correctly, in fact as it would seem to me from the available material, the relevant details of Mr Moore's criminal antecedents. They were extensive and discouraging, and were properly taken into account, not in order that they might be visited with further punishment, but in order that they might be understood properly in connection with what they had to say about the proper approach to sentencing for the particular matter that was before the District Court.
The sentencing Judge observed that, as his Honour saw the case:
"It is obvious that he has learned nothing whatsoever from his being in court in relation to offences involving dishonesty and the abuse of drugs and the sentence imposed upon him for those offences."
There does not seem to me to be anything wrong either in fact or law with the proposition there advanced.
The eighth ground put forward draws attention to the applicant's plea of guilty and points out that he entered the plea without any legal advice. That is to say, it is entirely upon his own initiative and that he "admitted guilt and assisted police at the first opportunity". It is suggested that the sentencing Judge did not accord sufficient weight to those considerations.
The remarks on sentence deal, at page 6, under the heading "The prisoner's belief" with this aspect of the present case. The learned sentencing Judge in terms acknowledges that Mr Moore had pleaded guilty at the earliest possible opportunity and, as his Honour put it: "He is entitled, therefore, to the discount of substance which follows an early guilty plea, and there could not have been an earlier guilty plea".
It does not seem to me that those remarks of the sentencing Judge admit of an argument that his Honour did not advert sufficiently, or at all, to the well-established requirements of the law of sentencing as to the proper discounting of an otherwise proper sentence by reason of a plea of guilty entered at the earliest practicable opportunity.
The ninth ground is that at the time of the offence the applicant was "aimlessly wandering about under a strong influence of drugs and alcohol", with the result that the robbery was "a hapless, unpremeditated robbery with minimal threat of personal injury to the victims".
I cannot add usefully to what I have said earlier in connection with these aspects of the matter. There does not seem to be any room for doubt that the applicant at all material times, and whether wandering aimlessly about or not, knew what he was doing; and that in every sense relevant for present purposes his mind, as it were, went with his action.
The tenth ground is that, "There is error in the full appreciation of the circumstances of the matter in his Honour's interpretation of the relevant factors for the sentencing".
I take that to be a submission that apart from any patent errors in the process of reasoning put forward in support of the sentence passed, the sentence itself is, on its face, so disproportionate to the offence in question as to manifest latent error of law. I do not agree. I think that the remarks on sentence in this case, if I might presume to say so, are admirably clear, carefully and logically arranged, and wholly convincing in the process of reasoning which they manifest.
It is trite that the offence of armed robbery by whomsoever and in whatsoever circumstances committed is a serious breach of public order. It is trite that sentences are to be imposed which are properly severe in the sense that, among other things, they operate as a deterrent, both to the individual offender and, very importantly, in this area of criminal behaviour, as a deterrent to other people, and in particular other young men such as Mr Moore, who might, from time to time, take it into their heads to break into other people's premises and, with threats, to rob those other people of their property.
I think that on a fair view of the entirety of the material before the Court, it cannot properly be held that there was a miscarriage in fact or in law. I, therefore, would grant leave to appeal but I would dismiss the appeal.
CARRUTHERS AJ: I would agree.
SULLY J: The orders of the Court will be as I have announced.

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LAST UPDATED: 15/11/2001