R v Moore - [2023] NSWDC 137

District Court

New South Wales

Medium Neutral Citation: R v Moore [2023] NSWDC 137
Hearing dates: 14 April 2023
Date of orders: 4 May 2023
Decision date: 04 May 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [83]-[87]

Catchwords:
CRIME – property offences – take and drive vehicle
CRIME – sexual offences – sexual intercourse without consent – circumstances of aggravation – deprivation of liberty
CRIME – criminal responsibility – mental illness – intoxication – causal connection
SENTENCING - relevant factors – plea of guilty – remorse – Bugmy factors – general principles

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act
Criminal Procedure Act, 1986

Cases Cited:
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Greaves v R [2020] NSWCCA 140
Jolly v R [2013] NSWCCA 76
Park v The Queen [2021] HCA 37
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v Barker & Gibson [2006] NSWCCA 20
R v Gavel [2014] NSWCCA 56
R v Tuala [2015] NSWCCA 8
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.

Category: Sentence
Parties: Rex
Joshua Samuel MOORE
Representation:
Counsel:
Ms C Mendes, for the offender
Solicitors:
Ms G Knight, for the Director of Public Prosecutions

File Number(s): 2021/311570
Publication restriction: There must be no publication of the name of the victim or anything that might tend to identify her.

remarks on sentence

The offender appeared before the Local Court at Wagga Wagga on 6 July 2022 and pleaded guilty to two substantive charges, namely that he:

(H84936442 Sequence 3): On 2 November 2021 at Narrandera in the State of New South Wales without having the consent of KB, the person in lawful possession of a motor vehicle, namely CB[..]BY, took and drove it when KB was in the said vehicle, contrary to s 154C(1)(b) of the Crimes Act, 1900 and further that

(H84936442 Sequence 10): On 2 November 2021 at Narrandera in the State of New South Wales, did have sexual intercourse with KB without her consent and knowing that she was not consenting in circumstances of aggravation, namely deprived KB of her liberty for a period before the commission of the offence, contrary to s 61J of the Crimes Act.

The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 14 April 2023 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The offence contrary to s 154C(1)(b) is commonly or shortly known as “carjacking”. That is the description I will use within these reasons. The maximum penalty for that offence is 10 years imprisonment. Parliament has specified a standard non-parole period of 3 years in respect of that offence. The maximum penalty for the Aggravated Sexual Intercourse…

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 [2023] NSWDC 137
Case: [2023] NSWDC 137
Decision Date: 04 May 2023

CaseChat Overview and Summary

The case of R v Moore was heard in the Supreme Court of Queensland, where the appellant, Moore, was charged with multiple offences including the unlawful taking and driving of a vehicle and sexual intercourse without consent, under aggravated circumstances. The latter offence involved the appellant engaging in sexual activity with a woman without her consent, with the additional aggravating factor of the victim's deprivation of liberty. Moore pleaded guilty to all charges.

The primary legal issues for the court to address were the causal connection between Moore's intoxication and his criminal conduct, as well as the appropriate weight to be given to his guilty plea and remorse in the sentencing process. Additionally, the court had to consider the application of Bugmy factors and general sentencing principles, particularly in light of the significant aggravating circumstances of the sexual offence.

The court determined that Moore's intoxication, while a contributing factor, was not sufficient to absolve him of criminal responsibility. The intoxication did not negate the requisite intent for the offences committed. The court also acknowledged Moore's guilty plea and expressed remorse as mitigating factors, but emphasised the gravity of the sexual offence. After weighing all relevant factors, including the Bugmy principles and general sentencing considerations, the court imposed a sentence, the details of which are outlined in the numbered paragraphs [83] to [87] of the judgment.

The court concluded that the sentence imposed was commensurate with the severity of the crimes and the principles of justice, taking into account all mitigating and aggravating factors.

Orders

Orders of the court

Sentenced – see [83]-[87]

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.

Medium Neutral Citation:	R v Moore [2023] NSWDC 137
Hearing dates:	14 April 2023
Date of orders:	4 May 2023
Decision date:	04 May 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [83]-[87]
Catchwords:	CRIME – property offences – take and drive vehicle CRIME – sexual offences – sexual intercourse without consent – circumstances of aggravation – deprivation of liberty CRIME – criminal responsibility – mental illness – intoxication – causal connection SENTENCING - relevant factors – plea of guilty – remorse – Bugmy factors – general principles
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act Criminal Procedure Act, 1986
Cases Cited:	Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Greaves v R [2020] NSWCCA 140 Jolly v R [2013] NSWCCA 76 Park v The Queen [2021] HCA 37 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Barker & Gibson [2006] NSWCCA 20 R v Gavel [2014] NSWCCA 56 R v Tuala [2015] NSWCCA 8 The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.
Category:	Sentence
Parties:	Rex Joshua Samuel MOORE
Representation:	Counsel: Ms C Mendes, for the offender Solicitors: Ms G Knight, for the Director of Public Prosecutions
File Number(s):	2021/311570
Publication restriction:	There must be no publication of the name of the victim or anything that might tend to identify her.