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

1. 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.

2. 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 her underpants. She thought the incident happened in the hallway next to her uncle’s room. And that “Mark” had covered her mouth and was crouching over her, although she could see his face.

3. At the time of the disclosure Moore was living in South Australia. He was arrested in that State and brought to New South Wales. He has been in custody since 4 December 2021.

A late guilty plea

4. Moore was charged with a serious offence. He was committed for trial to this Court. However, shortly before the date fixed for trial a fresh indictment was presented. He then pleaded guilty to a charge of aggravated indecent assault of a child aged under 16: 61M(2) Crimes Act 1900. It is accepted that although this is a different charge than that originally preferred, it is sufficiently similar that the only reduction he can be given for the utilitarian value of his guilty plea is one of 5%.

5. Section 25D Crimes (Sentencing Procedure) Act, if read strictly, requires very specific reductions. Meeting the requirements for percentage ratios, whilst observing other principles of sentence, is not necessarily a straightforward task. Sentencing is not meant to be a mechanical, numerical, or arithmetical exercise. There is no necessity for absolute arithmetical precision by way of dates or months, but he will get the full benefit for the utilitarian benefit of his guilty plea. I will round down to the offender’s advantage from my notional starting point.

6. In the guideline judgment one reason given for at Common Law reductions was the utilitarian value of the plea to the efficacy of the criminal justice system. Another distinct point was that in particular cases, especially sexual assault cases, crimes involving children, there is a particular value in avoiding the need to call witnesses, especially child victims to give evidence: R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383, at [3].

7. Having read the victim impact statement, to which I will later refer, one of the matters I swill take into account when I synthesize all relevant factors - is that the plea, while late, meant that the complainant did not have to give evidence, but because of the lateness of the plea I can give no greater statutory reduction.

Objective seriousness

8. So serious was the offending there must be a sentence of imprisonment. But no sentence should exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at 354. I start with this simple proposition; every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity which a child, that prohibition is intended to protect children from physical and psychological harm which is taken to be caused by premature sexual activity: R v Gavel [2014] NSWCCA 56. It is one important reason for the high maximum penalty and the high standard non‑parole period fixed in such matters.

9. I must consider; the actual character of the assault, the degree of physical contact involved, the part of the body touched, the nature of the contact, the age difference, the age of the child relative to the range encompassed by the offence; the younger the child the more serious the offence.

10. Here there was skin on skin contact to the vaginal area by an older man on a child aged eight. The offence appears to have been spontaneous and not repeated. I note as Latham J observed, “It is difficult to justify a finding below the middle of the range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl:” GSH v R; R v GSH [2009] NSWCCA 214.

11. Ms Mitchell, counsel for the offender, notes the absence of aggravating features which are commonly present such as additional violence, persistence, length of time.

12. Both counsel submit that the offending falls in the middle of the range of objective seriousness. I will proceed on that basis. However, placing conduct within a gradated scale of objective seriousness involves a high level of imprecision given the number of factors judges have to weigh, most of which are impressionistic and about which judicial opinions differ. I will focus on what was done as attempting to locate the objective seriousness on a hypothetical range of seriousness can sometimes be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33].

13. There is evidence, to which I will later refer, that the offender himself was abused when a child. I am prepared to find on balance, that this had an impact on him. His life was further disrupted by the separation of his mother from his then stepfather and other traumatic incidents, disruption of his childhood, disruption of his schooling and homelessness.

14. There is a report before the Court summarising research that links adverse childhood experiences with subsequent alcohol and substance abuse and sexual offending. In the opinion of the author, there is a nexus between Mr Moore’s adverse childhood experiences and subsequent related disorders and the index offending. The report then goes on to say it appears to have occurred during a period in his life where he had for a long time been self‑medicating with illicit drugs, illicit substance, and alcohol use. At the time he was intoxicated by these substances for extensive periods. His drug use, impacted on many areas of his life. His substances use was causing dysfunction in important areas of his life. The report outlined a number of adverse childhood experiences such as physical and sexual abuse. Accordingly, Ms Mitchell submits that there is a causal link between his offending and that background.

15. I have to make an objective assessment of the seriousness of the crime and the matters causally related to it. All factors bearing upon the seriousness of the offence should be taken into account unless excluded by statute. They can include some factors personal to the offender that are causally connected or material that contributed to the commission of the offence. Examples often given include; motive, emotional stress, provocation and non‑exculpatory duress: Patterson at [29].

16. Here, while I accept on balance the offender’s background, as was set out in the report, there is nothing particular here, given or absence of evidence from the offender himself, that links the commission of this offence to that background.

17. But that does not mean I do not consider the offender’s background and weigh it when I come to assess what is an appropriate sentence. There is clearly a nexus or connection between his background and his general offending behaviour. While objective seriousness and moral culpability are separate and related concepts; his moral culpability involves a wider set of subjective factors affecting an offender than that one matter.

18. Courts do not need to compartmentalise such matters. I do not start with one portion of the material before me, attempt to quantify it and then make proportional deductions one way or the other. With great respect to those who might think differently my ultimate aim is to carefully synthesize an appropriate and just sentence that takes into account what occurred and gives full weight to the circumstances of the offender.

19. One of the reasons for problems that have occurred with sentencing in New South Wales are standard non‑parole periods. I am obliged here to take into account the standard non‑parole period and give content to it. It provides a sentencing measure along with the maximum penalty. It requires that I assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, at [27]. But as that Court then made clear I cannot engage in a staged approached to sentencing, everything has to be synthesized.

20. Section 61M(2) Crimes Act (now repealed) and its standard non‑parole period was subject to considerable criticism. The relativity or ratio between the maximum penalty, ten years, and the standard non‑parole period, eight years, has been described as “absurd,” or “curious”; BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. It is an uncontroversial fact that it is not mathematically feasible to set a head sentence that is close to that notionally set out in the legislation related to the mid‑range while also giving weight the standard non‑parole period: LB at [39]. Nevertheless, a different bench of the Court of Criminal Appeal has said an eight-year standard non‑parole period has been prescribed by the legislature and the Courts must give effect to it; R v NJK [2011] NSWCCA 151 at [40]. Again, I repeat there is a danger in focus in compartmentalising sentencing matters.

21. Here there was one instance of offending. It was of short duration but it was still a serious sexual offending by an adult against a child. I accept that Moore was drug affected. I accept that that his drug use was connected to a background of trauma and at times deprivation.

22. I have to look at what was done and the impact of what was done. That impact is reflected in the victim impact statement that is before the Court. It must be taken into account.

Victim Impact

23. The complainant, who is now still a child wrote to me. She said she cannot be a lone with a male teacher. She gets nervous and fidgety. Her relationship with her sibling has broken down. She reports feeling depressed at times and she fights with family. She reports a failed attempt to get assistance from someone it appears she confided in as a consequence she learnt not to open up. She has trouble trusting people. She and feels that others are going to hurt her and do not trust her either.

24. She said that talking to the police and getting ready to go to court was terrifying. A matter I have referred to in relation to the importance of her not being cross‑examined.

25. She experiences anxiety and depression, nerves, and panic. There is mention of self‑harm and that she does not want to be around people. She concludes, “Recovering has been difficult, but I feel like I am getting somewhere”.

26. The resolution of these proceedings, the appropriate punishment of the offender may now give her a chance to turn the volume down and focus on her own recovery. Her statement provided her an opportunity to draw to the Court’s attention the impact of this offence. For practical purposes it may provide the only such opportunity.

27. There are many symptom constellations that follow child sexual abuse and the diverse abuse experiences mean the outcomes will also be diverse. Sadly, what was revealed is all too typical of the serious impact of such offending. It may have been a one-off offence for the offender but it impact was long term for the complainant.

Offender’s subjective case

28. I am assisted in this matter by two reports, psychologist report, one from 2013 and a more recent one from Mr Brett in 2023. The 2013 report was prepared for a Queensland court. The offender’s criminal antecedents reveal that in 2011 and 2012 he came before courts in Queensland for possession of child exploitation material and was sentenced to terms of imprisonment. A summary of the facts of those matters is before me. At the time the offender denied having a sexual interest in children. The Prosecution submission in this case is that this denial is belied by his commission of those very offences; which involved showing a sexual interest in children and by the commission of this offence.

29. Ms Mitchell, for the defence, notes that neither of the psychological reports report any paedophilic disorders; and that is true.

30. Ms Keay, for the prosecution, counters that the author of the report gave too much weight to the assertions of the offender rather than focusing on the objective circumstances in the facts for which he was to be sentenced.

31. In the absence of an expert opinion to that effect I could not find beyond reasonable doubt that Moore has a paedophilic disorder. There were the episodes in Queensland; and there is one instance, the matter for sentence, of him physically touching a child.

32. Although I could not find beyond reasonable doubt that he has a longstanding or underlying sexual interest in children, but past behaviour is one indication of future behaviour. I am not a psychologist but there are clearly matters that indicate that he has, at times, engaged in sexual offending of different types, both have involved either child abuse material or an assault upon a child. This finding requires i consider that aspect of community safety when I come to resolving this matter and fixing an appropriate sentence. It is another matter that I have to take into account.

33. When I consider other offending, I note that he had some breaches of his reporting obligations, and he spent time in custody as a consequence of being on the sex offender register. I am prepared to accept, given the nature of the penalty and the advice I have received, that it had more to do with his inability or incapacity to secure a, employment, and stability in his life, rather than any deliberate attempt to offend against children; as has reflected in more serious matters. Obviously, his record means that he is not entitled to the leniency often given to first offenders.

34. I accept that the offender took up the use and abuse of illicit drugs as a child, having experienced as a child physical abuse by his mother and her hen partner. Moore was forced to live independently without schooling. He feel, as he says, with the wrong crowd. But I suspect he was part of the wrong crowd as well as he engaged while still young, in antisocial activity. The physical abuse and the sexual abuse he suffered, must be taken into account; just as I did when I considered the impact on the victim.

35. After carefully reading the material to which I have already referred it is entirely understandable that those adverse childhood experiences led to the behaviour which is reflected in his criminal record and all the material before me. But the Courts cannot use such a background to excuse the perpetuation of sexual abuse against other children. Drug use is not an excuse for the committing of any offences. It is not a mitigating factor. At best it can help understand the circumstances leading up to the offence and the impulsivity of the offence. It is relevant to the subjective case because the origin and extent of his drug use and other psychological problems and his attempts to overcome those problems impact on his prospects of recidivism or reform: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346, at [273]

36. The offences were committed in 2015. There has been some delay in bringing the matter before the Court, although the authorities acted reasonably promptly once the complaint was made to them. There is no evidence that there was any other offending against the child and there is only evidence of this one matter when he was living in the household for that short period.

37. Relatively recently the offender had moved to South Australia where he reconnected with his birth father. There is evidence of some stability in his life and it appears, at least during the time before his arrest, that stability enabled him perhaps for the first time in his life to lead a law abiding life, since his mother’s separation from his stepfather many years ago. It is too early to say whether that change will be permanent as obviously a period in custody might interfere with it.

38. While Mr Brett postulates that Moore’s prognosis is good; he also notes that without addressing his childhood experiences Moore will remain vulnerable of recommencing substance abuse. And, and if he does so, there will be reoffending. Moore needs considerable support in maintaining an abstinent lifestyle. And while it is conceivable during his time on parole he could be transferred to South Australia it will be more difficult but not impossible, as he has demonstrated recently, for him to lead a law abiding life with support. He will need support in the community.

39. He is now taking medication to help him deal with his childhood trauma He has a diagnosis of post-traumatic stress disorder. In order to reduce his risk of offending he needs to more psychological assessments and treatment. Whether he gets that in custody during the present COVID restrictions I cannot say.

Submissions

40. The written submissions from Ms Mitchell and Ms Keay were almost at one when it came to matters of relevant principle. There were a number of matters raised in discussion where they differed, and I have sought to address them. I have not sought to deal with every matter explicitly raised by them. That is because not every question in sentencing procedures involves a choice between extremes. Ultimately, I have to consider aspects of human behaviour from a dispassionate position doing the best I can with the material I have.

Synthesis

41. I have to return to what was done to this young girl. The act took a short period, it was spontaneous, but it was serious offending; so serious that the maximum penalty of ten years and a standard non‑parole period of eight were fixed by parliament at the relevant time. The offender was much older than the child. He has matters in his history that are disturbing; a criminal history that is disturbing.

41. There are also matters in his background that I have attempted to give full weight to. I am required to give them full weight because the impact of such a background does not dimmish over time: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43].

42. I must also, by the sentence I impose, signal to this offender and others how serious it is to offend against a child and the retribution (that is just punishment) that will be inflicted on those who do so. I have to give proper weight to the matters reflecting the seriousness of the matter and attempt to balance those with the matters raised in the offender’s case.

43. I will make a finding of special circumstances. Moore, on his last release to parole, seems to have taken advantage of parole and not reoffended. However, he needs to be, monitored, and assisted when in the community. He will need psychological treatment and assistance. He will be on the sex offender register but that is only just and proper. It is not a matter I can take into account in mitigation. It would appear that the sooner he can return to South Australia and the good influence of his father the better for everyone.

44. I will give Moore the benefit of the 5% reduction for the utilitarian value of his guilty plea. The sentence will date from 4 December 2021.

Orders

46. The offender is convicted. There will be a sentence of three years and nine months imprisonment.

47. The formal orders are: The sentences non‑parole period is two years and six months. It will date from 4 December 2021. Moore will be eligible for consideration for release to parole on 3 June 2024. There will be a parole period of one year and three months. It will commence on 4 June 2024 and expire on 3 September 2025. That is a sentence of three years nine months, with a minimum period in custody of two years six months.

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Amendments

26 April 2023 - Typographical error only

Decision last updated: 26 April 2023