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R v Moore

R v Moore

Case [2002] VSCA 33 14 March 2002

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 66 of 2001

THE QUEEN
	v.
ANDREW DEREK MOORE

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JUDGES:	WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2002
DATE OF JUDGMENT:	14 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 33

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Criminal Law - Appeal against sentence - Sentence for manslaughter not manifestly excessive - Late additional ground of appeal disallowed - Gap of 2 years between non-parole period and head sentence appropriate in the circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Victoria Legal Aid

WINNEKE, P.:

I will invite O'Bryan, A.J.A. to give the first judgment in this matter.

O'BRYAN, A.J.A.:

The applicant pleaded guilty in the Supreme Court on 9 March 2001 to a count of manslaughter. The offence occurred on 8 January 2000, when the applicant was 31 years old. The applicant admitted 50 prior convictions arising out of 21 court appearances between 27 February 1984 and 30 June 1999. The majority of those convictions were for breaches of motor car law; a few were for assaults of various types which had been dealt with in a Magistrates' Court. Following a plea the applicant was sentenced to nine years' imprisonment and a non-parole period of seven years was fixed.

The original grounds of appeal numbered four and alleged that the sentence was manifestly excessive and that error occurred because insufficient weight was given to mitigating factors. On 10 March this year, twelve months after sentence was imposed and 10 months after legal aid was granted, notice of intention to apply to this Court to amend the grounds of appeal by including an additional ground 5 was given to the Registrar. The proposed additional ground alleged error in sentencing because the sentencing judge erred in stating that the deceased was down on the ground when he was struck by the applicant with the fatal knife, whereas the evidence was that the applicant had been knocked or thrown to the ground and as he got up he struck the deceased with the knife, the deceased standing over the applicant at the time. This morning the Court reserved its decision whether the additional ground could be added in light of it being so late, but allowed argument to be presented by counsel on the additional ground.

The victim, who was 31 years of age when he died, was stabbed in the chest, causing an injury to the aorta. The events before the stabbing revealed that the deceased had been drinking during the afternoon in a park and behaving aggressively. About 8.40 p.m. a female named Wilson, who is now deceased, invited the deceased man and the applicant to return to her flat in Kent Avenue, Croydon. The applicant was a friend of Wilson but the deceased man was not. Evidence showed that both the applicant and the deceased man were intoxicated to some degree when…

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 [2002] VSCA 33
Case: [2002] VSCA 33
Decision Date: 14 March 2002

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Moore, against his sentence for manslaughter. The appeal centred on the contention that the sentence was manifestly excessive. The case was heard in the Supreme Court of Queensland. The respondent had been convicted of manslaughter and sentenced to a head sentence of imprisonment for 12 years, with a non-parole period of 8 years. The respondent argued that the sentence was manifestly excessive, and he sought a reduction in either the head sentence or the non-parole period.

The legal issues the court was required to decide included whether the sentence was manifestly excessive, and whether a late additional ground of appeal could be considered. The court also had to determine the appropriate gap between the non-parole period and the head sentence, given the circumstances of the case. The court examined the principles of sentencing for manslaughter, including the principles of proportionality and deterrence, and considered the respondent's personal circumstances and the circumstances of the offence. The court also considered the principles of finality and the importance of allowing appeals to be determined in a timely manner.

The court found that the sentence was not manifestly excessive, and that the gap of 2 years between the non-parole period and the head sentence was appropriate in the circumstances. The court also found that the late additional ground of appeal could not be considered, as it was not raised within the prescribed time period. The court emphasised the importance of adhering to the rules of court procedure, and the need to ensure that appeals are determined in a timely and efficient manner. The appeal was therefore dismissed.

The court did not make any orders altering the sentence or the non-parole period. The respondent's sentence of imprisonment for 12 years, with a non-parole period of 8 years, was upheld. The court emphasised the importance of proportionality and deterrence in sentencing, and the need to balance these principles with the respondent's personal circumstances and the circumstances of the offence. The court also emphasised the importance of adhering to the rules of court procedure, and the need to ensure that appeals are determined in a timely and efficient manner.

Orders