R v Moore; ex parte - [2002] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moore; ex parte A-G [2002] QCA 116

PARTIES:

R
v
KEVIN JOHN MOORE
(respondent)
EX- PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO:

CA No 320 of 2001
DC No 1262 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2002

JUDGES:

McPherson and Williams JJA and Byrne J
Separate reasons for judgment of each member of the court, each concurring as to the order made.

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE - JUDGMENT AND PUNISHMENT- FACTORS TO BE TAKEN INTO ACCOUNT – OFFENCES COMMITTED WHILE ON BAIL OR PAROLE AND EFFECT OF BREACH OF PAROLE – where respondent on parole at time of committing offences – the weight to be given to the ‘totality principle’ - a sentencing judge must consider all sentencing options that are open in arriving at a sentence that is ‘just’.

Corrective Services Act 1988 (Qld) s 187
Corrective Services Act 2000 (Qld) s 135(2)(c), s 152(2), s 152(3), s 268A
Criminal Code (Qld) s 592A
Penalties and Sentences Act 1992 (Qld) s 9(2), s 156A(2)

R v Irving [2001] QCA 472, followed.
R v Keating [2002] QCA 19, distinguished.
R v Matthewson [2001] QCA 4, distinguished.
R v Shillingsworth (2001) 121 A Crim R 245, considered

COUNSEL:

B G Campbell for the appellant
AW Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

McPHERSON JA: I agree with the reasons of Byrne J for dismissing this appeal by the Attorney–General.

I would add only that it is plain that provisions like s 156A(2) of the Penalties and Sentences Act are having the effect of distorting standard sentencing tariffs by encouraging lower head sentences with a view to avoiding their stringent consequences.

WILLIAMS JA: I agree with the reasons of Byrne J and with the order he proposes.

BYRNE J: This is an appeal by the Attorney-General against sentences imposed in the District Court in respect of seven armed robberies committed by the respondent between 5 January and 10 November 1999. The sentences - seven years’ imprisonment, with a declaration pursuant to Part 9A of the Penalties and Sentences Act 1992 (“the Act”) that the crimes were serious violent offences - are said to be inadequate on several grounds, including that the sentencing judge gave undue weight to the totality principle.

The respondent was born in December 1953. In August 1995, for seven armed robberies committed between December 1994 and May 1995, he was sentenced to 10 years imprisonment, with a recommendation that he be eligible for parole after serving three years. The offences all involved the use of a replica pistol in robbing financial institutions, mostly banks. In aggregate, about $97,000 was taken.

On…

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; ex parte

Details

AGLC: R v Moore; ex parte [2002] QCA 116
Case: [2002] QCA 116
Decision Date: 26 March 2002

CaseChat Overview and Summary

The case before the court involved an appeal by the Attorney General against the sentencing of the respondent, Moore, who had been found guilty of several offences. Moore had been on parole at the time of committing these new offences. The court was tasked with determining whether the sentence imposed by the trial judge was appropriate in light of the totality principle, which requires a sentencing judge to consider all available sentencing options to arrive at a just sentence. The appeal centred on whether the trial judge had adequately considered the totality principle and the effect of Moore breaching his parole conditions.

The primary legal issue before the court was whether the trial judge had correctly applied the totality principle in sentencing Moore. This principle mandates that a sentencing judge must consider all available sentencing options to ensure the sentence is just. Additionally, the court needed to determine the weight to be given to the fact that Moore had committed the offences while on parole, which constituted a breach of his parole conditions. The court also had to assess whether the sentence imposed was adequate in light of these factors.

The court found that the trial judge had indeed considered the totality principle and had given appropriate weight to the fact that Moore had committed the offences while on parole. The court concluded that the trial judge had exercised their discretion correctly in arriving at the sentence imposed. The court emphasised that in sentencing, the judge must balance the totality principle with the need to deter future offending and to ensure public safety. The court was satisfied that the trial judge had achieved this balance appropriately. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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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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CITATION:	R v Moore; ex parte A-G [2002] QCA 116
PARTIES:	R v KEVIN JOHN MOORE (respondent) EX- PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO:	CA No 320 of 2001 DC No 1262 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2002
JUDGES:	McPherson and Williams JJA and Byrne J Separate reasons for judgment of each member of the court, each concurring as to the order made.
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE - JUDGMENT AND PUNISHMENT- FACTORS TO BE TAKEN INTO ACCOUNT – OFFENCES COMMITTED WHILE ON BAIL OR PAROLE AND EFFECT OF BREACH OF PAROLE – where respondent on parole at time of committing offences – the weight to be given to the ‘totality principle’ - a sentencing judge must consider all sentencing options that are open in arriving at a sentence that is ‘just’. Corrective Services Act 1988 (Qld) s 187 Corrective Services Act 2000 (Qld) s 135(2)(c), s 152(2), s 152(3), s 268A Criminal Code (Qld) s 592A Penalties and Sentences Act 1992 (Qld) s 9(2), s 156A(2) R v Irving [2001] QCA 472, followed. R v Keating [2002] QCA 19, distinguished. R v Matthewson [2001] QCA 4, distinguished. R v Shillingsworth (2001) 121 A Crim R 245, considered
COUNSEL:	B G Campbell for the appellant AW Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Qld) for the appellant Legal Aid Queensland for the respondent