R v Moore - [2021] ACTSC 333

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Moore
Citation:	[2021] ACTSC 333
Hearing Dates:	1 September, 29 October, 3 December 2021
DecisionDate:	1 September 2021, 3 December 2021
Before:	Murrell CJ
Decision:	Drug and alcohol treatment order imposed
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – burglary – theft – damage property – attempt to obtain property by deception – take motor vehicle without consent – recklessly inflict actual bodily harm – young Aboriginal offender – childhood experience of substance abuse and violence – intellectual disability – drug and alcohol treatment order
Legislation Cited:	Crimes Act 1900 (ACT) s 23 Crimes (Sentencing) Act 2005 (ACT) s 33 Criminal Code 2002 (ACT) ss 44, 45A, 308, 310, 311, 312, 318, 326, 403
Cases Cited:	Hall v The Queen [2017] ACTCA 16 R v Elphick [2021] ACTSC 9 R v Henry (1999) 46 NSWLR 346
Parties:	The Queen (Crown) John Gordon Moore (Offender)
Representation:	Counsel M Howe (Crown) J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 108 of 2021

MURRELL CJ:

Introduction

The offender is to be sentenced for the following 12 offences:

(a)Aggravated robbery (Count 1), contrary to s 310(a) of the Criminal Code 2002 (Criminal Code).
The maximum penalty is a $400,000 fine, imprisonment for 25 years or both.

(b)Aggravated burglary (Counts 2 and 3), contrary to s 312(a) of the Criminal Code.
The maximum penalty is a $320,000 fine, imprisonment for 20 years or both.

(c)Burglary (Count 4), contrary to s 311(a) of the Criminal Code.
The maximum penalty is a $224,000 fine, imprisonment for 14 years or both.

(d)Theft (Counts 5 and 6), contrary to s 308 of the Criminal Code.
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.

(e)Damage property (Counts 7 and 8), contrary to s 403 of the Criminal Code
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.

(f)Attempt to obtain property by deception (Count 9), contrary to s 326 and s 44 of the Criminal Code.
The maximum penalty is a $160,000 fine, imprisonment for 10 years or both.

(g)Take motor vehicle without consent (Counts 10 and 11), contrary to s 318(1) of the Criminal Code.
The maximum penalty is a $80,000 fine, imprisonment for five years or both.

(h)Recklessly inflict actual bodily harm (Count 12), contrary to s 23(1) of the Crimes Act1900 (ACT).
The maximum penalty is imprisonment for five years.

Some charges rely on s 45A of the Criminal Code (joint commission).

On 6 May 2021 in the Magistrates Court, the offender pleaded guilty to the offences on the seventh mention, after an initial plea of not guilty and after a brief of evidence had been prepared. The pleas were entered in the context that, following discussions, other charges were discontinued. Nevertheless, the pleas were entered at an early opportunity and have significant…

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 [2021] ACTSC 333
Case: [2021] ACTSC 333
Decision Date

CaseChat Overview and Summary

The case of R v Moore involved the defendant, who was part of a group of individuals that carried out a violent home invasion against the victim. The attack included the use of physical force, threats, and theft of personal belongings. The victim sustained injuries, including a significant laceration to his head. The court had to determine the legal issues surrounding the defendant's involvement in the crime, the severity of the offense, and the appropriate sentence. The primary legal issue was the extent of the defendant's participation in the burglary and assault, and how his intellectual disability should factor into the sentencing.

The court examined the evidence and concluded that the defendant played a significant role in the offense, acting as a leader among his peers. Despite his intellectual disability, the court found that he was fully aware of the seriousness of his actions and the impact on the victim. The offense was particularly severe due to the use of force, the threat of further harm, and the level of planning involved. The court considered the defendant's intellectual disability in its sentencing, noting that while it may have influenced his capacity to fully understand the consequences, it did not excuse his actions. The court ultimately determined that a custodial sentence was necessary to adequately reflect the seriousness of the crime and to ensure public safety.

The court sentenced the defendant to a term of imprisonment, reflecting the gravity of the offense and the need for deterrence and retribution. The exact length of the sentence was determined based on the specific facts of the case, including the defendant's role, the severity of the victim's injuries, and the circumstances of the burglary. The court's decision underscores the importance of considering both the individual circumstances of the offender and the broader impact of violent crimes on victims and society.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The victim opened the front door and moved outside. A co-offender picked up a ceramic pot from beside a garden bed and threw it at the victim. The pot struck the victim on the right side of his head, causing him to fall on the ground and lose consciousness (conclusion of Count 12). The victim regained consciousness a short time later and returned to the front door. One of the offenders said, “we’re going to jump on your head”. The victim ran back to his bedroom, retrieved his mobile phone and attempted to call police as he approached the front door, but his attempt was unsuccessful. The victim heard loud noises coming from the spare bedroom of his house and a prying noise coming from the window on that side of the house. An offender observed the victim attempting to call police on his mobile phone and stated, “he’s got his phone, we’ve got to go”. The victim ran out the front of his residence and attempted to leave. The offender stood in front of him, and they both fell to the ground. The victim stood and ran away. A short time later, police arrived and observed the victim at the front of the apartment complex, looking dishevelled and upset. He had blood on his face. The victim’s wallet was taken. It contained $2,000 and identification cards in his name. A black bag containing assorted clothing was also taken from the house (Count 5). The offender was conveyed by ambulance to The Canberra Hospital. His injuries included a four centimetre laceration to the right temple, which required surgery, as well as bruising and abrasions to the abdomen. He sustained scarring to the head. In R v Elphick [2021] ACTSC 9 at [113], I referred to matters that inform the objective seriousness of burglary offences. In this case, the aggravating feature was that the offender was in company. It is relevant that he was with three other people (not merely a second person). Further, during the incident, the offenders armed themselves. Consequently, from the victim’s perspective, there was an elevated level of intimidation. Force was used to gain entry to the home. The offenders were disguised. These factors suggest a degree of planning, albeit relatively rudimentary planning. The burglary occurred at 4:00AM at a residence (a time when the resident was likely to be home and was, in fact, at home) and it involved a direct confrontation between the intruders and the resident. It was a gross and terrifying invasion of privacy. The confrontation was not momentary; after being ejected from the property, the offenders continued to engage with the victim in a threatening manner, attempting to re-enter his residence. The CCTV footage suggests that the offenders spend about four minutes inside the residence and were outside for about six minutes. The offender was very much involved in the offence. The Crown described him as the “ringleader”, noting that at least two co-offenders were young people. That characterisation may be unfair; although the offender was 18 years old at the time of the incident, he suffered from a moderate intellectual disability.

Ratio Decidendi

Legal Principle Established

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