R v Moran

[2000] NSWCCA 379

CITATION:	R v Moran [2000] NSWCCA 379
FILE NUMBER(S):	CCA 60437/99
HEARING DATE(S):	07/08/00
JUDGMENT DATE:	7 August 2000
PARTIES :	Regina- Crown Kevin Moran- Applicant
JUDGMENT OF:	James J at 1; Dowd J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/1258
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	Mr AM Blackmore- Crown
SOLICITORS:	SE O'Connor- Crown Applicant appeared in person
CATCHWORDS:	Severity appeal - Assault occasioning actual bodily harm
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Lowndes v R (1999) 73 ALJR 1007. Allpass (1993) 72 A Crim R 561.
DECISION:	1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

BRUCE JAMES J
DOWD J

Monday 7th August 2000

N60437/99

REGINA v KEVIN MORAN

JUDGMENT

1    BRUCE JAMES J: I will call on Dowd J to give the first judgment

2 DOWD J: The applicant seeks leave to appeal from a sentence imposed by Her Honour Tupman DCJ, at the Parramatta District Court on 16 July 1997, the applicant having been convicted by a jury on one count of assault occasioning actual bodily harm in breach of s59 of the Crimes Act 1900 (the “Act”), the maximum penalty for the offence being five years imprisonment. The applicant had been acquitted of six other charges at the trial. The applicant was sentenced to a fixed term of nine months imprisonment, commencing on 30 January 2000 to be served by way of periodic detention.

3    In sentencing, Her Honour made findings of fact that the applicant, in the course of an altercation with his wife, pushed her into the ironing board, pushed her against a wall, and punched her in the right eye with his fist, causing bruising on the left cheek and the area of her back, tenderness and pain in the back of her head and bruising to the right eye.

4    The sentence of nine months periodic detention was cumulative upon a six-month periodic detention sentence imposed by Her Honour on the same day in lieu of a six-month full-time sentence imposed by a Magistrate at Penrith Local Court on 19 December 1996, a plea of guilty having been entered into on the assault charge on his ex-wife, that assault having occurred on 1 December 1996.

5    The imposition of sentence by way of periodic detention was substituted by Her Honour for full time imprisonment. That sentence has, of course, expired.

6    The applicant on this charge was arrested on 19 June 1997, was taken into custody and was released by me on 18 July 1997 on strict terms. The conditions were subsequently varied several times, where the applicant remained on bail until the date of sentence.

7    The applicant appeals primarily on three bases. The first is the fact of delay before this matter was dealt with, the second being the fact that he has shown contrition, and thirdly, that he has been rehabilitated. Her Honour took each of these matters into account when imposing sentence. However, the applicant has not in my view, shown any error on Her Honour's part.

8    The sentence, taking into account the fact that the offence occurred consequent upon an earlier offence to which he had pleaded guilty, is not in my view, one in which the Court should appear: Lowndes v R (1999) 73 ALJR 1007 and Allpass (1993) 72 A Crim R 561.

9    There is no doubt that, having spent some thirty days in custody, the applicant would have been distressed by that fact. There were however a number of listings before it in fact came on for hearing. Her Honour did take this matter into account, along with the rehabilitation that he has achieved, and indeed he has obviously achieved further rehabilitation since that time. Her Honour, however, took into account those matters along with the attempt at reconciliation, and the fact that the applicant had established a new relationship.

10    The sentence being periodic detention for a matter carrying five years imprisonment, being nine months on top of a previous assault, was taken into account as a matter of totality. In assessing the criminality by adding the two offences together, there is no doubt that there is an element of leniency in the granting of periodic detention as against full-time imprisonment.

11    In my view, Her Honour also took into account quite properly, that if the matter had been dealt with by the Local Court, then the maximum penalty for the offence would have been two years rather than five years, and that in the normal course such a charge would have been dealt with in the Local Court. However, it must be remembered that the assault was committed after an apprehended violence order and while the applicant was on bail, aggravating the commission of the later offence, and the evidence before Her Honour showed a very serious assault.

12    I do not consider that any error has been demonstrated. I would grant leave to bring the application, but would dismiss the appeal.

13    BRUCE JAMES J: I agree with the judgment of Dowd J. The orders of the Court will be as proposed by His Honour.

oOo