R v Moore, Jodie

[2009] NSWDC 196

CITATION:	R v Moore, Jodie [2009] NSWDC 196
HEARING DATE(S):	06/04/2009
JUDGMENT DATE:	7 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Count 2: Discharge pursuant to s 10 (1) (a) Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Criminal Law - Sentencing - s. 10 discharge - enter dwelling with intent to commit serious indictable offence - Take person with intent to obtain advantage - victim aged 15 - rural setting - indigenous community - victim alleged to have been party to damaging motor cycle of offender's son - victim taken without his consent to alleged co-offender's - offender's intent to take both to police station - victim escapes - offender reports motor cycle damage to police - subjective matters - horrific childhood abuse in institutional setting - sequali - irritability and outbursts of anger - contributes to offending conduct.
LEGISLATION CITED:	s.10 Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Jodie Belinda Moore
FILE NUMBER(S):	2008/00002010
COUNSEL:	Crown: C Simpson (Crown Prosecutor) Defence: H White

JUDGMENT
The victim in of these offences is under the age of 16 years. Nothing is to be published which woud reveal his identity.

1. The first trial appearing in the list at Bourke was the trial of Jodie Belinda Moore. It was a trial that was set down to take place and would take, I was told, four to five days on a conservative estimate. I indicated that I was contemplating relocating it to Dubbo because my experience is that when counsel say four to five days in reality these things tend to become six and seven day trials.

2. As events have turned out, this afternoon Jodie Belinda Moore has pleaded guilty to an indictment containing five counts of which she acknowledges her guilt in respect of two. She acknowledges that on 26 August 2007 at Brewarrina she entered a dwelling house with intent to commit a serious indictable offence; namely to intimidate J. F. She acknowledges her guilt that on 26 August 2007 at the same time and place she took J.F. without his consent and with intent to obtain an advantage; namely to obtain information concerning damage caused to a motorcycle.

3. When the indictment was read and nothing was in support of it my immediate reaction was that they were very serious offences indeed. An agreed fact puts an entirely different slant on those acknowledgments of guilt.

4. During the evening of Sunday, 25 August 2007 the motorbike of Ms Moore’s son, one Cecil Collis, was damaged by one Raymond Biles who was present with J. F., then aged fifteen. That damage to the bike was achieved by pouring a mixture of cordial, beer and salt into the petrol tank, beer into the muffler, salt and beer into the oil reservoir, the cutting of wires and the breaking of the spokes of the motorcycle.

5. I know no more about this motorcycle than that. Whether it was an expensive or a less expensive bike I know not, other than what I will say in a moment about money being provided for it. But the consequence of all of those acts made the bike inoperable. The following morning Jodie Moore became aware of the damage to her son’s bike.

6. 10.30 that morning she went to -- Young Street, Brewarrina where her friend, Veronica F. lived. Veronica F. was her best friend. They knew each other well for fifteen or sixteen years. They came and went into each other’s homes as though they were sisters. As she had done many times before, she entered the home. Veronica was not there. J. F. was there. He was there with his sister, Fallon; she is aged twenty-five. J. F.’s twin brother was there, and another persons, Luke Warraweena and Dayne Salt.

7. It would not be surprising that the offender was angry about what had happened to the son’s bike. To come shortly to the agreed facts it is she who had provided money for the bike. So there were two reasons for her to be angry: one because it had happened to her son, and two she had provided the money, whether as a gift or as a loan I know not. But on either view the gift or loan was suddenly made meaningless.

8. She entered the premises saying, “Where the fucking hell is Freaky?”, meaning Veronica F. “Your son fucked Pundu’s motorbike. Him and Ray Bunce” - a reference to Raymond Biles. She also said, “J--, you little cunt what did you do to Pundu’s motorbike?”

9. There is no doubt these comments were made and she acknowledges it, with the intention of causing him, J. F., to fear physical harm. He escaped out the back laundry window from the house. She went around the side of the premises with Fallon through the side gate and approached J. F. He told her and his sister that Raymond Biles had damaged the bike and that he was present with Biles at the time. She then took him without his consent in her vehicle with a view to seeing Raymond Biles or Biles’s mother, Lynette Fazledean, and then they were heading to Brewarrina Police Station to report the matter.

10. One view of it was that she had, in fact, arrested Frail and was taking him to the police, in which case her conduct would not have been unlawful. But [at trial] it would have been a jury question. The offender asserts that they also travelled to a house in 73 Bourke Street, Brewarrina, where she thought Veronica would be but there was no response at that place. They then went to 5 Narran Street, presumably still looking for Raymond Biles, because Erica Biles, a cousin, lives there.

11. Lynette Fazledean was out the front with other persons. J.F. escaped the vehicle and told Fazledean that Biles had damaged the bike. They then drove to Ms Moore’s premises at 3 Young Street before heading to Brewarrina Police Station to report the matter. Police interviewed J.F. concerning the events that occurred that morning and took a statement from him in the presence of his sister.

12. On 15 September 2007 Ms Moore attended Brewarrina Police Station. Apparently they wanted to speak to her in relation to this matter and she exercised her right of silence and was charged.

13. They are the facts that the Crown relies upon to sustain both counts. The Crown I should indicate has accepted the two pleas in full satisfaction of the other charges on the indictment. I have not referred to the other charges because I am dealing with the criminality that the Crown concedes is the appropriate criminality in the circumstances.

14. On any objective analysis these offences occur in circumstances where there was strong provocation, in circumstances where the offender lived within a community that accepted some responsibility for the way in which other persons’ children in the community behave. We tend in our [Cacuasian] community to evaluate and gauge things by the way white men work. In indigenous communities quite frequently those close to other families accept some responsibilities for the behaviour of other young people. Whether J.F. at fifteen would have qualified in that sense is a more moot point, but certainly if he had been six or seven one could have easily understood that sort of approach.

15. I am told that these offences do not carry a standard non-parole period. The level of malice involved in this criminality seems to me to be towards the lower end and is more related to discipline and compensation than it is to any harm intended to the victim.

16. Part of the agreed facts makes reference to some background matters insofar as Ms Moore is concerned. Her mother died when she was four and her father died when she was five. She resided at a children’s home called Bethcar. One Colin Frederick Gibson and his wife assisted in the running of this home. Those who have responsibility for running institutions, as I take it this place was, ought to be accountable to authorities, particularly authorities such as the Department of Community Services. In my view they ought to be licensed.

17. This is a very good example of why supervision of these homes is required. This offender was sexually abused by Gibson between the years 1976 and 1983; that is at a time when Ms Moore was six to thirteen years of age. That is well before pre-pubescence to pubescence. He was not tried until 2006 in relation to these charges. On 22 November 2006 at the Dubbo District Court in relation to the charges touching Ms Moore and another victim, a total of sixteen years imprisonment with an overall non-parole period of twelve years were imposed upon Gibson.

18. I will come to in some detail in the victim’s compensation report, but suffice to say at this point that the sum of $50,000 in victim’s injury compensation awarded to her for years of sexual abuse seems to me a paltry sum. Some of that money she used to purchase the motorcycle.

19. Ms Moore was born in Narrabri. There are two sisters and a brother. There are some other siblings having one parent different. She reports her mother died as I say when she was extremely young, and her father about a year later. She was not allowed to attend her mother’s funeral or visit the father in hospital or to know other members of the family. She attended the Brewarrina infants, primary and high schools while she was at this home. She said the children at the home were responsible for cleaning and on-farm chores. Some of the children were treated differently, some being favoured and others including her made to do a lot of work.

20. She ran away when she was coming close to sixteen to live with her sister. That sister died when she was sixteen after twelve months in a coma. She then got into a relationship it would seem where there was significant domestic violence from the age of sixteen. She has given birth to six children. In 2005 five of them were living with her but now I am told that there are three living with her and one that visits daily, and a grandson that lives with her.

21. She resides in a Department of Housing home near the centre of town. That home has been the target of invasions, theft of property and broken windows. She worries about her children and fears someone may sexually assault them by gaining access through the broken windows. Such of her family as live in Brewarrina are alcoholics. Her brother has been in and out of gaol. There are two sisters in Orange who do not drink. She has a long record herself of criminal offences, street fighting and the like as a consequence of abuse of alcohol.

22. She experiences epilepsy and is on Dilantin and Tegretol. She experiences body aches, is short-winded, and has pain in her left arm and chest. She suffers from light-headedness, aching legs, cramps and the like. All her births have been caesarean; she is unable to have normal vaginal deliveries. I should suspect that they may well be a consequence of the sexual assaults. She does abuse cannabis by the look of it. She suffered from enuresis from the age of seven until she left the home. That enuresis was fear of being sexually abused.

23. One of the lines I found most difficult to read was that she broke her own arm at an early age in order to escape the sexual abuse.

24. The opinion of the psychologist who interviewed her, with a lot of experience in dealing with victims of sexual assault makes this observation, which I accept:

“Ms Moore’s statement describes numerous episodes of physical and sexual abuse. There appears to have been little grooming involved with threats and physical abuse being the main strategy to maintain her silence. The sexual abuse appears to have been premeditated and violent with many of the incidents occurring at times when the offender would have been able to predict that the assault was either unlikely to be detected or any witnesses were unlikely to complain as they were also victims of the abuse.”

25. The abuse initially commenced with Gibson raping her at the pump house near a river within weeks of her arrival. That involved full sexual penetration. She bled significantly and not surprisingly was in tremendous pain. On her estimate she would have been subject to sexual assault fifty times a year all of those years she was there but it varied, she said, and was more of an average as sometimes it would occur a number of times a week and other times would not occur for weeks. The majority of the assaults involved full sexual intercourse with some lesser incidents described as consisting of digital penetration of her vagina. The report continues:

“The overall picture of the abuse is of a systematic, sometimes planned and sometimes opportunistic ongoing pattern of sexual abuse and physical abuse. The broader picture is of a context where Ms Moore and her peers tried on numerous occasions to get the authorities to help them but without success.”

26. She has been diagnosed with post-traumatic stress disorder and it is what is called chronic or long-term. She says she thinks about the abuse every day. It clearly would be contributing to reactive depression, and the symptoms are persistent. Those include difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hyper-vigilance and exaggerated startled response. It is the second of those symptoms which has some part to play in this offending. Just to remind you it was irritability or outbursts of anger. On this occasion there was such an outburst of anger. It was prompted by the consequence of damage to the motorcycle and what it meant to her and what she knew it meant to her son.

27. It being a factor, that is, having some of its origins not just in the events that unfolded in 2007 but because of events that had earlier unfolded and being a consequence of the disease, it seems to me that that mitigates the objective criminality of the offence.

28. There has been discussion between the parties and myself as to the appropriate outcome. The Crown concedes that a s 9 [good behaviour] bond would be an appropriate penal outcome, but when pressed as to whether a s 10 discharge would be appealable the Crown indicated it was a matter for me.

29. When a judge comes to sentence someone he or she can keep in mind a range of available sentences and impose a sentence within that range and not fall in error. In speaking of a range, the range must have a lower end and must have an upper end. The question is whether a dismissal falls within the lower end. In deciding whether to make an order dismissing the charge the court is to have regard to the following factors: the person’s character, antecedents, age, health and mental condition.

30. As to the character, I have given a good insight of the character. The offender’s involvement with Veronica, how she has managed to stay in the community notwithstanding the horrific start she had to her life, the contribution she is making in raising six children, her generous nature in giving to her son the wherewithal to purchase the bike even if it be a loan.

31. Her antecedents do her no great credit because she clearly has a drinking problem, one can understand that both by way of the fact that within the Aboriginal communities alcohol is a scourge, and secondly because in her own particular case there must be some degree of self-medication involved. She has not been before the District Court before and all of her offending as best I can tell is alcohol related but for a shoplifting charge.

32. Her health and mental condition. She suffers from post-traumatic stress as I have just said. There may be some borderline personality disorder symptoms. If there be those, they too would well have their origin in seven or eight years of sexual abuse of her.

33. The offences charged are serious offences. The word “trivial” is probably not an appropriate word to describe them but they certainly do fall within the lower dynamics and the lower range of offending, and it seems to me that in respect of both of them there were available defences and it would not have surprised me had a jury considered long and hard whether the Crown had proved the guilt of the accused.

34. I am satisfied the circumstances in which these offences were committed can properly be described as extenuating and any other matter that the court thinks proper. As a consequence of the way this event has been handled, as the Crown himself has said, this is a matter that could have been resolved really by mediation. If it had to be resolved by criminal charges it would better have been resolved by criminal charges in the Local Court. In all the circumstances I take the view that I would not be falling into error to discharge Ms Moore from either of these matters pursuant to s 10.

35. Ms Moore, if you are up to it, I want you to stand up. In respect of the offence that you on 26 August 2007 at Brewarrina in the State of New South Wales did enter a dwelling house with the intent to commit a serious indictable offence, namely to intimidate J. F., I find you guilty of that offence. But pursuant to s 10 of the Crimes (Sentencing Procedure) Act I discharge you from that offence without convicting you.

36. In respect of the other offence that you pleaded guilty to, at the same time and place that you took J. F. without his consent and with the intent to obtain an advantage, namely obtain information concerning damage caused to the motorcycle, again I find you guilty of the offence. But pursuant to s 10 I discharge you without recording a conviction.

Any other matter?

SIMPSON: Yes, there’s S.166 matters, your Honour, backup offences.

HIS HONOUR: 166?

SIMPSON: Yes, if they could be dismissed. There was an enter dwelling with intent to assault and a common assault.

HIS HONOUR: What do you want me to do with those?

SIMPSON: Dismiss them?

HIS HONOUR: Those matters on the application of the Crown pursuant to 166, I have the power and I dismiss each of them.