R v Moore - [2023] NSWDC 118

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Moore [2023] NSWDC 118
Hearing dates: 3 February 2023
Date of orders: 3 February 2023
Decision date: 03 February 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to three years and nine months imprisonment, non‑parole period two years and six months

Catchwords:
CRIME – aggravated indecent assault of a child aged under 16
SENTENCING - relevant factors on sentence - late guilty plea - victim saved from giving evidence - assessing objective seriousness - impact on victim- offender’s childhood deprivation

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
BT v R [2010] NSWCCA 267
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]
GSH v R; R v GSH [2009] NSWCCA 214
Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
Hoare v The Queen (1989) 167 CLR 348
LB v R [2019] NSWCCA 151
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Paterson v R [2021] NSWCCA 273
R v Gavel [2014] NSWCCA 56
R v NJK [2011] NSWCCA 151
R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383

Category: Sentence
Parties: Mark Daniel Moore (the offender)
Director Of Public Prosecutions
Representation:
Counsel:
Ms N Keay Deputy Senior Crown Prosecutor
Ms R Mitchell (for the offender)
Solicitors:
Director of Public Prosecutions NSW
Morrisons Law (for the offender)

File Number(s): 2021/00256721
Publication restriction: Pursuant to s578A Crimes Act 1900 and s15A Children (Criminal Proceedings) Act 1987 there is to be no publication of the child victim's name or anything that may lead to identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

Judgment- Ex Tempore Revised

Facts for sentence

In 2015 Mark Daniel Moore was a drug user and homeless. A friend allowed him to live in the garage of his home in Wollongong. Shortly afterwards he was allowed to move into a spare bedroom and started to pay rent. There was a disagreement about money, and he left the premises. He didn't live there long. Living in the house at the relevant time was a young girl; she was born in 2007. I proceed on the basis she was eight years old at the time.
In 2021 the girl went to her father and asked, “Do you remember Mark”. She then disclosed that she had been indecently assaulted by him in the hallway of the home they then resided in. The child told her father that she could not remember much about the incident. The police were called. She told police that something happened, but she had trouble explaining what. But she did tell them “He placed his fingers somewhere, somewhere being down there in this direction. I don’t remember a lot, but he put his fingers, like, around the area”. She clarified this by saying “the area” was her vagina; and that his fingers were inside…

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 118
Case: [2023] NSWDC 118
Decision Date: 03 February 2023

CaseChat Overview and Summary

In the case of R v Moore, the appellant was convicted of committing an aggravated indecent assault on a child under the age of 16. The matter was heard in the higher courts of Australia, where the appellant sought to challenge the severity of his sentence. The central issue before the court was the appropriate weight to be given to various factors during the sentencing process, including the late guilty plea by the appellant, the sparing of the victim from giving evidence, and the objective seriousness of the crime, along with the appellant’s deprived childhood.

The court was tasked with determining the relevance and impact of these factors in the context of sentencing for such a serious offence. It considered the principle that a late guilty plea should generally result in a lesser penalty, yet this must be balanced against the gravity of the crime committed. The court also acknowledged the relief provided to the victim by avoiding the ordeal of testifying in court, which was factored into the sentencing decision. Additionally, the court examined the appellant’s childhood experiences, which were marked by significant deprivation, as a mitigating factor. However, the court emphasised that while these circumstances might explain the appellant's actions, they did not excuse the severity of the crime.

Ultimately, the court concluded that while the mitigating factors warranted some consideration, the objective seriousness of the crime necessitated a substantial custodial sentence. The court determined that a sentence of three years and nine months imprisonment was appropriate, with a non-parole period of two years and six months. This decision reflects a balanced approach, taking into account both the need for punishment and the mitigating aspects of the appellant’s background.

Orders

Orders of the court

Sentenced to three years and nine months imprisonment, non‑parole period two years and six months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Moore [2023] NSWDC 118
Hearing dates:	3 February 2023
Date of orders:	3 February 2023
Decision date:	03 February 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to three years and nine months imprisonment, non‑parole period two years and six months
Catchwords:	CRIME – aggravated indecent assault of a child aged under 16 SENTENCING - relevant factors on sentence - late guilty plea - victim saved from giving evidence - assessing objective seriousness - impact on victim- offender’s childhood deprivation
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BT v R [2010] NSWCCA 267 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] GSH v R; R v GSH [2009] NSWCCA 214 Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 Hoare v The Queen (1989) 167 CLR 348 LB v R [2019] NSWCCA 151 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Paterson v R [2021] NSWCCA 273 R v Gavel [2014] NSWCCA 56 R v NJK [2011] NSWCCA 151 R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Mark Daniel Moore (the offender) Director Of Public Prosecutions
Representation:	Counsel: Ms N Keay Deputy Senior Crown Prosecutor Ms R Mitchell (for the offender) Solicitors: Director of Public Prosecutions NSW Morrisons Law (for the offender)
File Number(s):	2021/00256721
Publication restriction:	Pursuant to s578A Crimes Act 1900 and s15A Children (Criminal Proceedings) Act 1987 there is to be no publication of the child victim's name or anything that may lead to identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.