R v Moore - [2005] QCA 400

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moore [2005] QCA 400

PARTIES:

R
v
MOORE, Roger Kerryn
(applicant)

FILE NO/S:

CA No 215 of 2005
DC No 1843 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

2 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2005

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - applicant pleaded guilty to one count of receiving and one count of fraud - offences committed during operational period of suspended sentence - sentenced to 12 months imprisonment to be served by way of intensive correction order - operational period for suspended sentence extended for 12 months - offences committed whilst on bail for like offences - significant and relevant criminal history - previous breaches of probation and fine option orders - plea of guilty at early stage - co-operation with authorities - whether sentence manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant, Mr Moore, pleaded guilty on 10 August 2005 to one count of receiving and one count of fraud. Those offences were committed during the operational period of an eight month suspended sentence imposed in the Brisbane Magistrates Court on 1 October 2003. On the fraud and receiving charges, Mr Moore was sentenced to 12 months imprisonment to be served by way of an intensive correction order with the additional condition that he submit to medical psychiatric or psychological treatment including drug treatment programs and drug testing. The operational period for the suspended sentence imposed on 1 October 2003 was extended for 12 months. Mr Moore contends that the sentence was manifestly excessive.

He was 28 at the time he committed the offences and 30 at sentence. He has a significant and relevant criminal history commencing in 1994 when he was fined for possession of a dangerous drug. In May 1999 he was placed on 18 months probation for possessing a dangerous drug. The next month he was convicted and fined for possessing utensils or pipes used in connection with a dangerous drug. In August 1999 he was convicted and fined for breaching his probation order. In November 1999 he was placed on two years probation for possession of a dangerous drug. In February 2000 he was convicted and fined of breaching his probation order. In August 2000 he was convicted and fined for failing to properly dispose of a needle and syringe. Later that year he was dealt with for breaching a fine option order and…

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.

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Details

Case: [2005] QCA 400
Decision Date: 2 November 2005

CaseChat Overview and Summary

The applicant, Moore, was convicted of receiving and fraud offences and was subject to a suspended sentence at the time of the commission of the current offences. He was sentenced to 12 months imprisonment, to be served by way of an intensive correction order. The applicant's operational period for the suspended sentence was extended by 12 months, and he had committed the offences while on bail for similar offences. The court considered Moore's significant and relevant criminal history, previous breaches of probation and fine option orders, and his early guilty plea and co-operation with authorities. The primary issue before the court was whether the sentence imposed was manifestly excessive.

The court examined the principles of sentencing and the relevant factors that should be considered, including the gravity of the offence, the offender's culpability, and the need for deterrence and rehabilitation. The court also considered the applicant's criminal history, which included previous breaches of probation and fine option orders. Despite the applicant's early guilty plea and co-operation with authorities, the court found that the sentence was not manifestly excessive. The court concluded that the sentence was appropriate given the circumstances of the case, and the appeal against the sentence was dismissed.

The court's reasoning was based on a comprehensive assessment of the relevant sentencing principles and the facts of the case. The court considered the gravity of the offence, the offender's culpability, and the need for deterrence and rehabilitation. The court also took into account the applicant's criminal history and previous breaches of probation and fine option orders. The court found that the sentence was appropriate given the circumstances of the case, and the applicant's appeal against the sentence was dismissed. The court did not grant leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Moore [2005] QCA 400
PARTIES:	R v MOORE, Roger Kerryn (applicant)
FILE NO/S:	CA No 215 of 2005 DC No 1843 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	2 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2005
JUDGES:	McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - applicant pleaded guilty to one count of receiving and one count of fraud - offences committed during operational period of suspended sentence - sentenced to 12 months imprisonment to be served by way of intensive correction order - operational period for suspended sentence extended for 12 months - offences committed whilst on bail for like offences - significant and relevant criminal history - previous breaches of probation and fine option orders - plea of guilty at early stage - co-operation with authorities - whether sentence manifestly excessive
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent