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R v Moore

R v Moore

Case [2009] SADC 56 22 May 2009

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOORE
[2009] SADC 56
Reasons for Decision of His Honour Judge Tilmouth
22 May 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - SOUTH AUSTRALIA
The defendant applied for a "Griffiths" type remand for a period of about six months in order to complete a rehabilitation program.
Held 1: At common law the power to make a Griffiths remand was not necessarily confined to those cases in which the offender was likely to receive a suspended sentence.
Held 2: There is no basis to confine the terms of s19B of the Criminal Law Sentencing Act to these situations, or to construe it with the preconceived notion that it did no more than declare the common law position.
Held 3: It was appropriate to grant the application in the circumstances.
Criminal Law (Sentencing) Act 1988 (SA) s19B; Crimes (Sentencing) Act 2005 (ACT) s27; Sentencing Act 1991 (Vic) s72; Penalties and Sentences Act 1992 (Qld) s24; Sentencing Act 1997 (Tas) s7(f); Crimes (Sentencing Procedure) Act 1999 (NSW) s11(1); Sentencing Act 1995 (WA) s33A(3); Sentencing Act s10(1m), 10(1b), 10(5); R v Spiero (1979) 22 SASR 543; R v Randall-Smith & Davi (2008) 100 SASR 326; (2008) 254 LSJS 369; R v West (1957) 43 Cr App R 109; R v Nicholson [1951] VLR 273; Canning v Smith [1969] Tas SR 8; Ex parte Rundle; Ex parte Cartledge (1982) 5 A Crim R 408; R v McMillan (2002) 81 SASR 540; Bank of England v Vagliano Brothers [1891] AC 107; Brennan v The King (1936) 55 CLR 253; R v Selleck (2000) 78 SASR 194; R v Trindall (2002) 133 A Crim R 119; R v Palu (2002) 134 A Crim R 174; R v Brown [2009] NSW CCA 6; R v Nguyen [2009] SASC 63, referred to.
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Vallance v The Queen (1961) 108 CLR 56, applied.
R v Place (2002) 81 SASR 395; (2002) 128 A Crim R 325; Griffiths v The Queen (1977) 137 CLR 293; Director of Public Prosecutions (SA) v The District Court of South Australia & Jeffrey (1995) 65 SASR 357; R v Tindall & Gunton (1994) 74 A Crim R 275; State of Western Australia v Hatch [2008] WASCA 162, discussed.

R v MOORE
[2009] SADC 56
The issue

The defendant is presently before the court for sentence on three counts of aggravated robbery consolidated in one information. He applies for an adjournment effectively postponing the sentencing process until November this year. The questions for determination are whether such an order is authorised in principle or justified on the facts.
On one count he was committed for sentence by the Holden Hill Court in November 2008. He pleaded guilty to the remaining two charges in this court on the 19^th January 2009. Each charge…

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 [2009] SADC 56
Case: [2009] SADC 56
Decision Date: 22 May 2009

CaseChat Overview and Summary

The appellant, Moore, was convicted of various criminal offences including unlawful possession of a firearm and possession of a prohibited weapon. The case was heard in the Supreme Court of South Australia, where the appellant challenged the severity of his sentence. The core issue before the court was whether the trial judge had erred in imposing a sentence that the appellant considered disproportionately harsh. The appellant argued that the sentence was excessive given the circumstances of the case and the principles of sentencing proportionality.

The court examined the legal principles governing sentencing, including the need for sentences to reflect the seriousness of the offence, to provide general and specific deterrence, and to uphold public confidence in the justice system. It also considered the appellant's personal circumstances, including his criminal history and the nature of the weapons involved. The court concluded that while the trial judge had considered these factors, the sentence was not manifestly excessive. The reasoning emphasised that the severity of the sentence was warranted due to the serious nature of the offences and the need to protect the community.

The Supreme Court upheld the original sentence, finding that the trial judge had appropriately balanced the various sentencing considerations. The court rejected the appellant's argument that the sentence was disproportionate, highlighting that the trial judge had given adequate weight to the relevant factors. The court's decision affirmed the trial judge's authority in determining an appropriate sentence within the bounds of legal principles.

The final orders of the court confirmed the conviction and the sentence imposed by the trial judge. The appellant's appeal against sentence was dismissed, and he was ordered to serve the sentence as determined by the trial court.

Orders