R v Paul Phillip Moore - [2018] NSWDC 228

District Court

New South Wales

Medium Neutral Citation: R v Paul Phillip Moore [2018] NSWDC 228
Hearing dates: 17 July 2018
Decision date: 24 August 2018
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Sentence hearing: Aggregate term of imprisonment of 12 years. Non-parole period of 9 years to date from 10 November 2016 and which will expire on 9 November 2025. Balance of 3 years to date from 10 November 2025 and which will expire on 9 November 2028.

Catchwords: Domestic Violence related offences - Grievous bodily harm with intent; detain with intent to obtain advantage and occasion actual bodily harm; and use offensive weapon with intent to commit an indictable offence - application by non party: access to Agreed Facts.
Legislation Cited: Evidence Act (NSW) 1995 s.4 and s136; Crimes Act (NSW) s.33(1)(a), s.33(1)(b) and s.86(2)(b)
Category: Sentence
Parties:
Regina (Crown)
Paul Phillip Moore (Offender)
Representation:
Counsel: Ms Gul (Crown Prosecutor)
Counsel: Mr Rajalingham (Offender)

File Number(s): 2016/337006
Publication restriction: Non publication order made of the name of the victim and any other fact or thing which might directly or indirectly identify her.

Judgment

Paul Phillip Moore appeared before the Court for sentence on 17 July 2018 in relation to three offences, each of which he committed on 10 November 2016.
At the conclusion of the sentence hearing on that date, the matters were adjourned to today for the imposition of sentence.
Early in the sentence hearing (on the application of the Crown and by consent) pursuant to s 4 of the Evidence Act I directed that the provisions of that Act apply to the proceedings.
The three offences for which Mr Moore is to be sentenced are as follows.
First, one offence of causing grievous bodily harm with intent to cause grievous bodily harm.
This involves a contravention of s 33 (1) (b) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is a standard non-parole period of 7 years imprisonment.
Secondly, one offence of detain with intent to obtain an advantage and occasioning actual bodily harm.
This involves a contravention of s 86 (2) (b) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. There is no standard non-parole period.
Thirdly, one offence of using an offensive weapon with intent to commit an indictable offence, namely intimidation.
This involves a contravention of s 33 B (1) (a) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment. There is no standard non-parole period.
The facts surrounding the three offences are contained in a document entitled “Agreed Facts on Sentence”. Slightly recast by me as to style but not substance they are as follows.
In 2014, Mr Moore and the victim met on an internet dating site.
An intimate relationship developed from that meeting which continued intermittently over a period of two years.
Ultimately, the victim terminated the relationship.
After the termination of the relationship, Mr Moore continued to contact the victim. He also continued to attend at the victim’s mother’s premises in Westmead. The victim was living at those premises pending a planned move by her (with her children) to Queensland, which was anticipated to take place on 11 November 2016.
The day before that proposed move, namely on 10 November 2016, Mr Moore went to those Westmead premises.
At about 6:00am the victim came out of the premises and walked towards her car which was parked in the driveway.
As she did so, Mr Moore, who had been hiding behind bushes at the end of the driveway, ran towards the victim. He was carrying an object which was later determined to be two metal poles which he had taped together to form one larger pole of approximately 2.2 meters in length.
When Mr Moore got close to the victim, he hit her to the right side of her head with the pole using a slicing motion.
The victim held her hands up in an attempt to protect herself from being further hit. Mr Moore, however, struck her another five times to the head and once to her legs.
The victim then fell to the ground.
After she did so, Mr Moore continued to hit her with the weapon he had constructed.
The victim screamed at Mr Moore telling him to stop. However, Mr Moore ignored her and continued to hit her over her body.
At this point the victim could feel that her left ear was bleeding.
These facts constitute the first offence of causing grievous bodily harm with intent to cause grievous bodily harm.
A neighbour could hear the sound of high-pitch screaming at about this time.
Mr Moore then told the victim to get into her car. The victim stood up and Mr Moore picked up her car keys from the ground and took her mobile phone from her handbag.
As the victim was walking unwilling towards the car, Mr Moore hit her further on her elbows. Although the agreed facts do not expressly state it, the only rational inference in the circumstances is that these additional blows were inflicted by the weapon to which I have earlier referred.
The victim got into the passenger seat of the motor vehicle and Mr Moore got into the driver’s seat. He then locked the doors of the vehicle and placed the weapon in the centre console.
These facts constitute the second offence of detain with intent to obtain an advantage.
The victim asked Mr Moore where they were going but he did not respond. She told him that she needed medical attention. Mr Moore’s response was to berate her about how much she had hurt him during their relationship.
Mr Moore then drove the motor vehicle to his residence in St Mary’s and parked it on the front lawn. He got out of the vehicle and told the victim to go into the house, which she refused to do because she was scared.
The victim was speaking in a loud voice in the hope of attracting the attention of some people who were nearby.
Mr Moore got back into the motor vehicle (the victim was still sitting in the passenger seat), locked it and then drove off to various places.
At this time the victim was concussed and vomiting. Notwithstanding this, Mr Moore continued to berate her about their relationship.
At one point during this journey Mr Moore became emotional when talking about their former relationship – at another point he said in a calm voice to the victim, “I’m going to kill us both”.
Mr Moore continued driving. The victim was looking for ways to escape from the vehicle and him.
At one point the motor vehicle was stopped at a set of lights in Erskine Park. The victim simultaneously unlocked her seat belt and the door locks and opened the door. She began to get out of the vehicle – however, she was unable to do so because the offender had grabbed her by her ponytail. He shouted to her, “Close the door, I will get you with the pole again”.
The victim then began to scream. Three nearby witnesses heard those screams. One witness later told police that he believed the victim was being restrained because she was unable to get out of the vehicle. The other two witnesses saw the offender pulling her back into the car by her hair. All three witnesses observed that, when the car drove off, the passenger door was open and the victim’s legs were outside the vehicle.
Mr Moore then drove the vehicle to Badgerys’s Creek. He appeared to calm down but nevertheless said, “I was going to kill us both, but now I’m going to just kill myself”.
The victim then began to talk to the offender offering for him to go to her home or to go with him to see a counsellor. Mr Moore agreed to drive the victim to Nepean Hospital.
Mr Moore did drive the vehicle to Nepean Hospital but drove straight past it, without stopping. When asked by the victim why he didn’t stop Mr Moore said, “I’m going to take you home to Westmead and then I’m going to fucking kill myself”.
At about 10:00am on this day (that is four hours after the victim’s nightmare began), Mr Moore drove the motor vehicle containing her and himself to Hawkesbury Road, Westmead. He then turned into a side street. The victim asked Mr Moore what he was doing. He said he was looking for his car. Mr Moore then said, “I’m going to kill us both”. Having said that, he accelerated the motor vehicle towards a power pole which was on the left hand side of the road. The vehicle crashed into the power pole.
These facts constitute the offence of using an offensive weapon (the motor vehicle) with the intent of committing the indictable offence of intimidation.
Paragraph 13 of the agreed facts contains a table of information obtained by crash investigators who examined the vehicle after impact. The table covers the period from 5 seconds before impact to the moment of impact. Amongst other things, the table indicates that at, 5 seconds before impact, the vehicle was accelerating at 45.8 per cent capacity, and that by 3 seconds before impact it was travelling at 100 per cent acceleration capacity. Half a second before impact, the rate of acceleration stopped; and the vehicle’s speed was 44 km / hour. At half a second before impact, the brakes were applied.
After this impact, Mr Moore and the victim got out of the motor vehicle. Mr Moore got into his own vehicle and drove off, abandoning the injured victim. The victim ran off and obtained assistance from a nearby witness.
The police and ambulance were soon on the scene. The ambulance officers noticed that the victim had: dried blood around the external right ear; a 5cm laceration to her left ear and cartilage; swelling to the left side of her face around her jaw; bruising and abrasions around her left elbow; and she was suffering pain in her left thigh. She was emotionally distressed, shaking and crying from the terrifying, brutal and cowardly ordeal she had just endured – an ordeal which had been clearly planned by the offender. In fact, she vomited whilst ambulance officers were speaking with her.
The victim was taken to Westmead Hospital where she underwent surgery to repair her left ear. The notes of the hospital record that she suffered a 3cm full-thickness laceration through the skin and cartilage of the left ear. This laceration extended onto the mastoid.
The external injuries to the victim’s left ear were repaired by a plastic surgery team at the hospital on 11 November.
The victim continues to suffer high frequency hearing loss in her left ear down to 45 decibels. She continues to have difficulties in understanding conversations when there is background noise and she suffers from mild tinnitus.
The victim also suffered swelling to her face, significant bruising to her left buttocks, left upper thigh, left elbow, left and right forearm, and her right shoulder.
Later on 11 November the police arrested Mr Moore in his motor vehicle. When they searched that vehicle they found two metal poles taped together with red tape. One of those poles was 1.2 meters long; the other 1 meter long.
Following his arrest, Mr Moore was taken to St Mary’s Police Station where he participated in an interview. Amongst other things he told the police that he and the victim had been in and on-off relationship since 2014. He admitted constructing the weapon with which the victim was hit and he admitted to striking her across her back and head. He agreed that he could have killed the victim when he struck her.
I pause to observe in the context of the factual circumstances surrounding the offending that, through the report of Dr Furst dated 16 July 2018 (being part of Exhibit 1), the offender sought to advance some contextual or exculpatory material (see the first two paragraphs under the heading “Offence related issues” on page 2 of the report).
Four things might be immediately said in connection with those paragraphs.
First, following an objection by the Crown, those paragraphs were subject to a limitation under s 136 of the Evidence Act – namely, that they were evidence of what Mr Moore told Dr Furst but were not evidence of the truth of the contents of the statements.
Secondly, in the absence of the offender from the witness box swearing to the truth of the statements, they will be treated with scepticism and given little, if any, weight.
Thirdly, even if they had been proved on a balance of probabilities (which they have not), the nature of the matters alleged would have had little impact upon my assessment of the objective seriousness of the offences and would not have constituted any meaningful mitigating circumstance.
Fourthly, the limitation placed on those paragraphs will necessarily have an impact upon the weight to be given to the subsequent expressions of opinion by Dr Furst in the sections entitled “Recent Progress” (the first paragraph), “Review of relevant documents”, “Agreed facts” (the first two paragraphs), “Psychiatric and psychological mitigating factors” (the first paragraph), and “Prognosis” (the second paragraph).
The victim and her children no longer live in New South Wales. She returned to Sydney for the purpose of the sentence hearing which was conducted on 17 July 2018. A Victim Impact Statement (which forms part of Exhibit A) was read to the Court by a friend of the victim. Although the statement is brief, it succinctly outlines the very substantial physical, psychological and financial damage which the offender’s disgraceful and wicked criminal conduct inflicted upon the victim and, to a lesser but still significant extent, upon her children.
In terms of the objective seriousness for offences of their kind, in my opinion, the first offence is at the mid-range, the second offence is just below the mid-range, and the third offence is significantly into the upper-range.
The first and second offences are aggravated by the actual or threatened use of a weapon. Each of the offences is aggravated by the very substantial harm to the victim’s life generally.
The offender did not give sworn evidence in the proceedings. His subjective circumstances were advanced primarily through the report of Dr Furst to which I have already referred, as well as through a number of references from friends and family members.
Mr Moore is now 48 years old.
Before his intermittent relationship with the present victim he was in a previous de facto relationship for 16 years. That relationship finished acrimoniously. Through Dr Furtst’s report, the offender seeks to attribute blame for the ending of that relationship on his former partner – just as he sought to blame the present victim. I do not give any weight to either of those untested assertions which, insofar as the present victim is concerned, is expressly challenged by the Crown. There were two children from that earlier relationship who are now 18 and 21 years of age. Although it is not clear from Dr Furst’s report, I infer that Mr Moore does not presently have a close association with those children.
Mr Moore’s upbringing was unremarkable. He left school mid-way through Year 10 and has been a hardworking man since that time mainly as a fork-lift driver or as a car detailer.
Mr Moore has no alcohol, gambling or illegal drug issues. Nor does he have any significant medical or other physical problems.
It is somewhat difficult to determine whether Mr Moore has any mental health issues. This is because a significant aspect of the history which he gave to Dr Furst (concerning the nature of the relationships with his former partner and the present victim) has not been proved. To a very considerable degree, therefore, Dr Furst’s opinion has been constructed on an assumption of the accuracy of the history which has not been proved.
The offender, therefore, has not proved on the balance of probabilities any relevant mental health issues other than possibly the adjustment disorder with depressed mood noted by Dr Furst - but which is explicable by reference to his being detained in custody as much as anything else.
Mr Moore has a criminal history as a juvenile but that cannot be held against him. He does, however, have offences as an adult including offences of dishonesty, driving offences, and three offences of violence – although I have noted the nature of the sentences imposed which suggest that those three offences were not serious.
Nevertheless, Mr Moore is not entitled to the leniency which, in appropriate circumstance, is extended to first offenders.
It was submitted on behalf of Mr Moore that his belated pleas of guilty, and the contents of the references, would entitle the Court to conclude, on the balance of probabilities, that he was remorseful for his actions. The Court of Criminal Appeal has frequently observed that a sentencing Judge is entitled to regard with scepticism second hand expressions of remorse. This is how I regard those expressions in the instant case. The pleas of guilty were late. The statements to the relatives and friends are self-serving. I am not satisfied on the balance of probabilities that those second hand expressions of remorse are, in fact, genuine as opposed to Mr Moore being sorry for the position in which he finds himself.
Remorse is one factor to be taken into account in relation to assessing an offender’s prospects for rehabilitation.
Another factor is why it was that an offender in fact offended as he did. There is no clear explanation for that in the present case. This is a very concerning matter.
Other factors are an offender’s involvement with alcohol or illegal drugs, other like criminal offending, his work history, and the strength of his family support.
On balance, I regard Mr Moore’s prospects for rehabilitation as being guarded. They would not, however, be enhanced by a longer period on parole. And in any event the sentence to be imposed will have a significant period on parole.
Clearly, both general and specific deterrence are fully engaged.
As I have already indicated, the pleas were entered late. Whilst there may have been some basis for allowing a lesser discount than 10 per cent for the first offence, given the submissions of the Crown I propose to allow a discount of 10 per cent for each of the three offences for the utilitarian value only of those pleas.
The offender has been in custody continuously since his arrest on 10 November 2016 solely referrable to these matters, and the aggregate sentence I shall soon impose shall be backdated to that date.
Because I intend to impose an aggregate sentence it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. In relation to each offence, no sentence other than one of full time imprisonment is appropriate.
Those indicative sentences are as follows.
For the first offence of causing grievous bodily harm with intent, before the discount of 10 per cent, the indicative sentence is 8 years imprisonment. After the discount, the indicative sentence is 7 years 2 months imprisonment. The indicative non parole period is 5 years 4 months.
For the second offence of detain with intent to obtain advantage, before the discount of 10 per cent, the indicative sentence is 6 years. After the discount, the indicative sentence is 5 years 5 months.
For the third offence of using an offensive weapon with intent to commit the indictable offence of intimidation, before the discount of 10 per cent, the indicative sentence is 8 years. After the discount, the indicative sentence is 7 years 2 months.
No indicative sentence would have been totally concurrent with any other indicative sentence. But by having regard to totality, each indicative sentence would have been partially accumulated with each of the others.
Notwithstanding that this is this offender’s first time in custody, that is not a sufficient reason to make a finding of special circumstances. There is no other relevant reason to do so. And I decline to do so.
Paul Phillip Moore, of the offences of causing grievous bodily harm with intent, detaining with intent to obtain advantage and occasioning actual bodily harm, and using an offensive weapon with intent to commit the indictable offence of intimidation, you are convicted.

I sentence you to an aggregate term of imprisonment of 12 years.
I fix a non-parole period of 9 years to date from 10 November 2016 and which will expire on 9 November 2025.
I fix a balance of 3 years to date from 10 November 2025 and which will expire on 9 November 2028.

Decision last updated: 24 August 2018

Medium Neutral Citation:	R v Paul Phillip Moore [2018] NSWDC 228
Hearing dates:	17 July 2018
Decision date:	24 August 2018
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Sentence hearing: Aggregate term of imprisonment of 12 years. Non-parole period of 9 years to date from 10 November 2016 and which will expire on 9 November 2025. Balance of 3 years to date from 10 November 2025 and which will expire on 9 November 2028.
Catchwords:	Domestic Violence related offences - Grievous bodily harm with intent; detain with intent to obtain advantage and occasion actual bodily harm; and use offensive weapon with intent to commit an indictable offence - application by non party: access to Agreed Facts.
Legislation Cited:	Evidence Act (NSW) 1995 s.4 and s136; Crimes Act (NSW) s.33(1)(a), s.33(1)(b) and s.86(2)(b)
Category:	Sentence
Parties:	Regina (Crown) Paul Phillip Moore (Offender)
Representation:	Counsel: Ms Gul (Crown Prosecutor) Counsel: Mr Rajalingham (Offender)
File Number(s):	2016/337006
Publication restriction:	Non publication order made of the name of the victim and any other fact or thing which might directly or indirectly identify her.