R v Moore

[1992] QCA 91

IN THE COURT OF APPEAL [1992] QCA 091

SUPREME COURT OF QUEENSLAND	Appeal No. 281 of 1991
Before the Court of Appeal
The President Mr Justice Davies Mr Justice Williams

T H E Q U E E N

v.

JOHN JOSEPH MOORE

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

JUDGMENT - THE COURT

Delivered the Twenty-Eighth day of April 1992

On 27 September 1991, John Joseph Moore pleaded guilty

and was convicted in the District Court at Brisbane of one
charge of arson and of another charge of false pretences. The
second charge related to an attempt to defraud the insurer of
the dwelling house. At the time of his conviction, Moore was
a single man, twenty-six years of age, with no previous

convictions.

The sentencing judge admitted Moore to probation for a

period of three years subject to the usual conditions, plus a special condition that he receive psychiatric and psychological treatment as directed. This is an appeal by the Attorney-General against that sentence. to two mortgages. The woman determined to arrange for the house and its contents to be burned in order to collect the amount for which they were insured which was increased in September 1990. Her husband and their three children resided regularly in the dwelling house and the woman, who worked as an "escort", went there on weekends. At other times, she resided in a block of flats at Kangaroo Point, where Moore also lived. The woman agreed to pay Moore $500.00 to set fire to the dwelling house at a time when she knew that her husband and children would be absent and he did so on 27 September 1990. Before doing so, Moore removed part of the contents, some of which he retained and some of which he gave to the woman. The dwelling house and its contents were completely destroyed in the fire, and subsequently the woman lodged an insurance claim.

The dwelling house was owned by a woman and was subject

The sentencing Judge was influenced by a psychological

report which suggested that Moore has a personality disorder
which might be alleviated by psychiatric assistance. One
aspect of Moore's condition is apparently manifested by a
susceptibility to influence from trusted females. According to
the psychologist "Moore shows no overt criminality in any

proactive sense in his personality."

Secondly, Moore has no other convictions, has a good

employment history and pleaded guilty.

Thirdly, material placed before this Court on behalf of

Moore without objection from the appellant indicates that, although "manifesting some features of a situational stress reaction" associated with this appeal, Moore has largely co- operated since being admitted to probation, subject to one important qualification. Consistently, perhaps, with the psychologist's view that Moore is susceptible to the influence of trusted females, Moore gave evidence at the trial of the woman that did not accord with his statement to the police. Moore was declared a hostile witness and the woman was acquitted.

Finally, for reasons which are not explained, there has

been considerable delay in this appeal coming on for hearing.

Moore was sentenced on 27 September 1991, the notice of

appeal was filed on 22nd October 1991, the record was
completed later that year, but the appeal did not come on for
hearing until 3rd April 1992, a little more than six months

after Moore was sentenced.

The offences committed by Moore, especially the arson

offence, are extremely serious and the deterrent purpose of statements made in that case which are material for present purposes. Delay in finalising a Crown appeal against sentence and demonstrated prospects of rehabilitation in the period between the original sentence and the appeal are potentially material factors.
sentencing plainly indicated a custodial sentence when Moore
was first dealt with, even though he is a first offender. On
the other hand, Crown appeals against sentence raise special
questions of fairness to a defendant as is recognised in, for
example, R v. Tait and Bartley (1979) 24 ALR 473, 476-477.

Nonetheless, the Court has reluctantly concluded that

Moore must be sent to prison at this late stage. He participated in serious criminality for financial gain and his conduct caused considerable loss. Reasonably comparable sentences referred to the Court indicate that a sentence of imprisonment for two years would be appropriate. To take account of the other factors, the Court recommends that parole be considered after 6 months.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No. 281 of 1991

T H E Q U E E N

v.

JOHN JOSEPH MOORE

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

The President
Mr Justice Davies

Mr Justice Williams

Judgment of the Court delivered on the

Twenty-Eighth day of April 1992

Appeal allowed. Sentence varied by setting aside probation

order and sentencing respondent to imprisonment for two
years. Recommend that respondent be eligible to apply for
parole after serving 6 months of sentence. Issue warrant
for the arrest of the appellant, to lie in the Supreme
Court Registry until 4.00 p.m. this afternoon.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 281 of 1991
Before the Court of Appeal
The President Mr Justice Davies Mr Justice Williams

T H E Q U E E N

v.

JOHN JOSEPH MOORE

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

JUDGMENT - THE COURT

Delivered the Twenty-Eighth day of April 1992

MINUTE OF ORDER:Appeal allowed. Sentence varied by setting

aside probation order and sentencing apply for parole after serving 6 months of sentence. Issue warrant for the arrest of the appellant, to lie in the Supreme Court Registry until 4.00 p.m. this afternoon.

respondent to imprisonment for two years.

CATCHWORDS:Criminal law - Sentence - Attorney-General appeals against sentence of 3 years probation for arson and false pretences arising out of

attempted fraud on insurer - whether
prison term warranted not withstanding
psychological condition and delay in
appeal coming on - 2 years with 6 month

recommendation substituted

Counsel:	Mr M. Byrne for the Crown Mr S. Herbert for the Respondent
Solicitors:	Director of Prosecutions for the Crown
Messrs. Gilshenan and Luton for the Respondent

Hearing date: 3 April 1992