R v Moss - [2004] NSWCCA 422

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Moss [2004] NSWCCA 422

FILE NUMBER(S):
2004/2530 CCAP

HEARING DATE(S): 16/11/2004

JUDGMENT DATE: 02/12/2004

PARTIES:
Regina (respondent)
Tina Maree Moss (applicant)

JUDGMENT OF: Sully J Hidden J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0379

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

COUNSEL:
C Smith (applicant)
G Rowling (Crown)

SOLICITORS:
Peninsula Law (applicant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
application for leave to appeal against sentence
supply methyl amphetamine
fresh evidence
applicant pregnant at time of sentence
administrative arrangements for care of new born child while in custody
change in circumstances of three existing children
whether pregnancy relevant to sentence
whether hardship to other children relevant to sentence

LEGISLATION CITED:
Drug Misuse and Trafficking Act
Criminal Appeal Act

DECISION:
Leave to appeal granted; appeal dismissed by majority.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2530
SULLY J
HIDDEN J
HOWIE J
Thursday 2nd December 2004

Regina v Tina Maree Moss

Judgment

SULLY J: I had the advantage of reading in draft the judgment of Hidden J. Having considered the contents of that judgment I have to say, with all due respect, that I am unable to concur in the orders that his Honour proposes.
In explaining my own views of this admittedly sad and difficult matter I take as my point of departure the contents of paragraph 15 of his Honour’s judgment. I respectfully agree with the entirety of what is there said by his Honour.
That being so, it seems to me that the correct approach is to deal with the following sequence of questions:
[1]Is there now placed before this Court any evidence that can be regarded properly as fresh evidence?
[2]If so, then does a proper consideration of that fresh evidence, correctly and precisely defined, justify a conclusion that a miscarriage of justice will result should this Court not now intervene and re-sentence?
[3]If so, then is there evidence of matters occurring between the date of the original sentencing and the hearing of the present application, the assessment of which occurrences according to correct principles correctly applied, justifies the conclusion that a more lenient sentence than that passed at first instance is warranted in law.
As to question 1, I would answer: yes.
As to question 2, and for the purpose of correctly identifying the fresh evidence, I would regard the fresh evidence as being such evidence as establishes:
1)that the applicant, when she stood for sentence, was in fact pregnant;
2)that it is expected that she will come to term on or about 12 December next;
3)that, should her baby be born while she is serving a sentence of full-time custody, she would be accepted upon post-natal discharge from hospital into the Mothers and Children’s Programme that is provided by the Department of Corrective Services; and that the relevant incidents of that Programme are as described by Hidden J in paragraphs 17 and 29 of his Honour’s judgment.
Further as to…

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 Moss

Details

AGLC: R v Moss [2004] NSWCCA 422
Case: [2004] NSWCCA 422
Decision Date: 2 December 2004

CaseChat Overview and Summary

The case of R v Moss was an application for leave to appeal against sentence, heard by the Court. The applicant, Moss, had been convicted of supplying methyl amphetamine and was appealing against the sentence imposed. The key issues before the court were whether Moss's pregnancy at the time of sentencing should be considered as a mitigating factor, and whether the hardship to her existing children should also be taken into account. The court had to determine whether these circumstances constituted a change in circumstances that warranted a review of the original sentence.

The legal issues revolved around the principles of sentencing and the availability of fresh evidence. The court had to assess whether Moss's pregnancy and the resultant impact on her existing children could be deemed a significant change in circumstances since the original sentencing. Additionally, the court needed to consider if the administrative arrangements for the care of the newborn while Moss was in custody could be regarded as a mitigating factor.

The court concluded that Moss's pregnancy, coupled with the difficulties faced by her existing children, constituted a significant change in circumstances. The hardship experienced by the children, particularly given the administrative arrangements for the newborn, warranted a reconsideration of the sentence. The court acknowledged the importance of these factors in determining an appropriate sentence, particularly given the potential long-term effects on the children. The application for leave to appeal was subsequently granted.

The court ordered a review of the original sentence, taking into account the fresh evidence presented. The case underscored the importance of considering the impact of sentencing on the family and dependents of the offender. The decision highlighted the need for flexibility in sentencing to accommodate significant changes in circumstances that occur post-sentencing.

Orders