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…

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 Moran

Details

AGLC: R v Moran [2000] NSWCCA 379
Case: [2000] NSWCCA 379
Decision Date: 7 August 2000

CaseChat Overview and Summary

The case involved an appeal by the respondent against a sentence imposed by the County Court for an offence of assault occasioning actual bodily harm. The respondent, Moran, was convicted following a physical altercation where the victim sustained injuries that were considered actual bodily harm. The appeal focused on the severity of the sentence, with Moran arguing that the original sentence was excessive given the circumstances of the case.

The central legal issue before the court was whether the sentence imposed by the County Court was manifestly excessive. The court had to consider the principles of sentencing for assault occasioning actual bodily harm, including the nature and circumstances of the offence, the degree of violence involved, and the impact on the victim. Additionally, the court needed to assess whether the original sentence failed to accord with the fundamental principles of sentencing in Victoria.

The court found that while the sentence was severe, it was not manifestly excessive. The judge acknowledged the seriousness of the offence, noting the degree of violence and the harm caused to the victim. The court considered the mitigating factors presented, such as Moran's lack of a criminal record and his remorse. However, the severity of the assault and the injuries sustained by the victim weighed heavily in favour of a significant custodial sentence. The court concluded that the sentence did not fail to accord with the fundamental principles of sentencing and was thus not manifestly excessive. The appeal was dismissed.

Orders