R v Moore
[2001] VSC 115
•26 March 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1501 of 2000
| THE QUEEN |
| v. |
| ANDREW DEREK MOORE |
---
JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 26 MARCH 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 115 | |
---
CATCHWORDS Manslaughter – Plea of guilty – Unlawful and dangerous act – Extensive criminal history – Propensity to engage in violent behaviour – Ingestion of alcohol.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. McArdle | Office of Public Prosecutions |
| For the Accused | Mr. L. Hartnett | Victoria Legal Aid |
HIS HONOUR:
Andrew Derek Moore, after having been presented before this court charged with the murder at Croydon on 8 January 2000 of Simon Paul De Saint, a further and replacement presentment has been filed containing a count of manslaughter, to which you have entered a plea of guilty. It is now my responsibility to impose sentence upon you for the commission of that offence.
Against that background, I observe that you have admitted convictions for 50 offences arising out of 21 court appearances between 27 February 1984 and 30 June 1999. The offences vary substantially in seriousness but, significantly for present purposes, they include a number of convictions in relation to acts of physical violence and the use or possession of weapons.
It is also to be noted that you have a long history of driving motor vehicles with a blood alcohol concentration in excess of the prescribed limit, and of driving whilst disqualified. Your record before the courts is powerfully indicative of a lifestyle involving the abuse of alcohol associated with irresponsible behaviour and, on occasions, the resort to serious violence using weapons. I do not find it surprising that, eventually, your conduct has occasioned the death of a person.
The circumstances surrounding the commission of the offence which brings you before this court may be briefly described as follows. At some stage during the afternoon of 8 January, you joined a group, which included the deceased, who were engaged in what could be appropriately described as a drinking session in a Croydon park. It appears to be reasonably clear that some, if not all, of those present were or became significantly affected by alcohol. Disputes developed on at least two occasions over what seem to have been relatively minor matters, the detail of which is not significant, and at one stage some punches were thrown by the deceased. There are indications that Mr De Saint was in an aggressive frame of mind at the time and it appears that he was intoxicated. As I understand the situation, it has not been suggested that you were involved in that episode.
Eventually, one of the persons present, a woman named Yvonne Wilson, invited the deceased and you to go with her to her flat to engage in further drinking. You agreed to do so, and the three of you walked in the direction of a taxi rank at the Croydon Railway Station. The group was observed by two members of the Transit Police Force, whose attention was attracted by reason of your language and behaviour, and the fact that the three of you were consuming alcohol on railway premises. However, you were not detained, and the three of you then travelled by taxi to Miss Wilson's home, arriving there, it appears, at around 8.30 p.m.
Not long afterwards, a dispute broke out between the deceased and yourself. As is often the case in situations where the participants were affected by the consumption of intoxicating liquor, the cause of the dispute remains obscure and what precisely took place cannot be determined. I am unable, on the basis of the evidence before the court, to make any finding as to the circumstances under which the fight began, or who initiated a physical confrontation. There would seem to be little doubt that both of you were clearly capable of aggressive behaviour when under the influence of alcohol.
It is, however, reasonably clear that there was a fight between Mr De Saint and you outside the flat, that you returned to the kitchen area in the premises, where you obtained a large knife, and returned with it, striking the deceased with this weapon. It also appears that he was down on the ground when this was done.
Again, what prompted you to resort to a knife does not emerge from the evidence. However, this action was consistent with your conduct on the earlier occasions to which I have referred when outlining your criminal history.
Although Mr De Saint sustained three substantial injuries to an arm, as well as the wound to the chest which occasioned his death, the pathologist who conducted the post-mortem examination found himself unable to express an opinion as to the number of blows involved. In that circumstance, I consider that I should, for sentencing purposes, act on the basis of his minimum estimate that only one action may have been involved.
The crime of manslaughter to which you have pleaded guilty can arise in a variety of different situations, and there are different formulations to encompass them. In your case, the matter comes before the court on the basis that you have occasioned the death of the deceased through the performance of an unlawful and dangerous act, as those terms are understood by the law. By accepting your plea of guilty to manslaughter, the prosecution has conceded that you are not to be taken as having intended to kill your victim, or to cause really serious bodily injury to him but, rather, to have struck out in drunken anger without murderous intent. This stance is, I consider, understandable when regard is had to the uncertain state of the evidence concerning precisely what did transpire at the time and the standard of proof applicable in a criminal proceeding.
Nevertheless, as a consequence of your criminal conduct, the life of Mr De Saint has been unlawfully taken from him. That is a situation which this court, and the community that it represents, regards with the utmost seriousness. Being mindful of the fundamental importance attributed to human life in our society through the sentences they impose, and consistent with the incorporation of other relevant sentencing considerations, the courts must, through the sentences that they hand down, endeavour to deter those who are so inclined from acting as you have done. They must express the denunciation of the community that they represent of the unlawful resort to violence and particularly the employment of weapons to cause hurt to others.
In this context, as I have earlier pointed out, you have a long and sorry history of alcohol related offences and conduct indicative of a continuing disregard of the rights and safety of others.
You are a quite intelligent person and must long ago have come to some realisation of your propensity to extreme violence when affected by alcohol. There is little to suggest that you have ever made any serious endeavours to address that situation, although you have served a number of periods of imprisonment over the years in consequence.
Viewed against that background, your level of personal culpability must, in my opinion, be regarded as high, and specific deterrence given weight as a sentencing consideration in your case.
I have read the victim impact statements filed in the court and, once again, have sensed the continuing feelings of loss and anguish experienced by family members and others whose lives are intimately connected with that of your victim. Some may never recover, although in time they will probably learn to cope more or less adequately. There will be others whose life paths will be dramatically affected by what you have done. In your case, as in many others which come before this court, there are a large number of victims.
As far as your background is concerned, I understand that your early years were unremarkable. As far as I am able to assess, you were born into a stable family and were not subjected to abuse or neglect in your early years, as is often encountered in this jurisdiction.
Your family have remained supportive of you and are likely to continue to remain so. However, you commenced to drink alcohol at about the age of fourteen years and soon after became addicted to it. The direction of your life has been heavily influenced by that addiction.
I note that you have made some sporadic attempts to obtain assistance but, as I remarked earlier, you appear to have lacked any real commitment to ceasing alcohol abuse. Nevertheless, you are still a relatively young person, being 34 years of age, and your eventual rehabilitation must be regarded as a significant sentencing consideration.
I take into account in your favour your plea of guilty and I accept that you are genuinely remorseful, noting, however, that the regret of the violent alcoholic is frequently self-directed rather than reflecting any real concern for those who have suffered as a consequence of their violent outbursts.
I have had regard to the range of sentences handed down in this court over recent years for the crime of manslaughter, bearing in mind that they can provide only general guidance, as each case must be assessed in the light cast by the individual circumstances of the offence and offender involved.
In all of the circumstances of your case, I consider that a sentence of imprisonment for a period of 9 years should be imposed. I fix a minimum period before you will become eligible for parole of 7 years.
I declare that the period of 443 days which you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed. I direct that this declaration and its details be entered in the records of the court.
---
0
0
0