R v Pierre Moss - [2013] NSWDC 207

District Court

New South Wales

Medium Neutral Citation: R v Pierre MOSS [2013] NSWDC 207
Decision date: 09 May 2013
Before: Cogswell SC DCJ
Decision:
Convicted of the offence of using a carriage service to menace, harass or cause offence.
Sentenced to 12 months imprisonment. Release directed forthwith upon entering a recognisance in the sum of $500 to be of good behaviour for 12 months.
Offence held to be a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000.

Catchwords: CRIMINAL LAW - Particular offence - using a carriage service to menace, harass or cause offence - coach of under 14 girls' soccer team exchanged inappropriate and offensive text messages with 12 year old team member. Sentence - relevant factors - gravity of offence - significant breach of trust and authority - no prior criminality given less weight as that factor allowed offender into position of trust he abused - response to charge - remorse - contrition - guilty plea - 20 per cent discount - good prospects of rehabilitation - nature and circumstances of offender - violent marriage - psychiatric and psychological material - bipolar disorder, anxiety, depression - connection between condition and offending behaviour - purpose of sentence - general deterrence significant factor due to difficulty in detecting offence - significance reduced due to offender's mental condition - appropriate for sentence to be suspended. Sentencing Orders - whether or not offence involved an "act of indecency" in respect of a child - a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000 - limited extra curial punishment. Sentencing Procedure - relevant material - victim impact statement.
Legislation Cited: Child Protection (Offenders Registration) Act 2000, s 3A(1).
Child Protection (Offenders Registration) Regulation, reg 18.
Crimes Act 1914 (Cth), s 17A.
Criminal Code Act 1995 (Cth), s 473.4, s 474.17, s 474.27A.
Cases Cited: Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241.
Purves v Inglis (1915) 34 NZLR 1051.
R v Manson, R v Stamenkovic (Court of Criminal Appeal, 17 February 1993, unreported).
TMTW v R [2008] NSWCCA 50.
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Pierre Moss (Offender)
Representation: Counsel:
G E Wright (Crown)
G Porter (Offender)

File Number(s): DC 2012/83530
Publication restriction: His Honour has elected to use pseudonyms for the names of the offender and the child to protect the child's identity.

REMARKS ON SENTENCE

This is a case where a man in charge of a girls' football team abused his position by exchanging inappropriate and offensive text messages with one of the team members. He was in his thirties and she was a 12 year old girl.

The man was arrested and charged by the police for his behaviour and he pleaded guilty. I have to sentence him today. The prosecution says I should impose a prison sentence and place him on a register for the protection of children. The defence says that I should give him a…

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 Pierre Moss

Details

AGLC: R v Pierre Moss [2013] NSWDC 207
Case: [2013] NSWDC 207
Decision Date: 09 May 2013

CaseChat Overview and Summary

The case before the court involved a coach of an under 14 girls' soccer team who exchanged inappropriate and offensive text messages with one of his 12-year-old players. The defendant, Pierre Moss, was convicted of using a carriage service to menace, harass or cause offence. The court was tasked with determining the appropriate sentence for Moss, considering various factors, including the gravity of the offence, the breach of trust and authority, the offender's response to the charge, remorse, contrition, and prospects of rehabilitation. The court also considered Moss's personal circumstances, including his violent marriage and psychiatric and psychological conditions, such as bipolar disorder, anxiety, and depression.

The legal issues that the court had to decide included the gravity of the offence, which involved a significant breach of trust and authority, the offender's lack of prior criminality, the offender's response to the charge, and the offender's prospects of rehabilitation. The court had to weigh these factors to determine an appropriate sentence for Moss. The court also had to consider whether the offence involved an "act of indecency" in respect of a child, which would make it a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000.

The court found that the offence was serious due to the significant breach of trust and authority. However, the offender's lack of prior criminality was given less weight as that factor allowed him to enter into a position of trust that he abused. The court also found that Moss had shown remorse and contrition, and that he had good prospects of rehabilitation. The court considered the offender's personal circumstances, including his violent marriage and psychiatric and psychological conditions, but found that these factors did not outweigh the gravity of the offence. The court also found that the offence involved an "act of indecency" in respect of a child, making it a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000.

The court sentenced Moss to 12 months imprisonment, but directed that he be released forthwith upon entering a recognisance in the sum of $500 to be of good behaviour for 12 months. The court also ordered that the offence be recorded as a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000. The court considered that the purpose of the sentence was to deter others from committing similar offences, but reduced the significance of general deterrence due to Moss's mental condition. The court also found that it was appropriate for the sentence to be suspended.

Orders

Orders of the court

Convicted of the offence of using a carriage service to menace, harass or cause offence.

Sentenced to 12 months imprisonment. Release directed forthwith upon entering a recognisance in the sum of $500 to be of good behaviour for 12 months.

Offence held to be a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Pierre MOSS [2013] NSWDC 207
Decision date:	09 May 2013
Before:	Cogswell SC DCJ
Decision:	Convicted of the offence of using a carriage service to menace, harass or cause offence. Sentenced to 12 months imprisonment. Release directed forthwith upon entering a recognisance in the sum of $500 to be of good behaviour for 12 months. Offence held to be a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000.
Catchwords:	CRIMINAL LAW - Particular offence - using a carriage service to menace, harass or cause offence - coach of under 14 girls' soccer team exchanged inappropriate and offensive text messages with 12 year old team member. Sentence - relevant factors - gravity of offence - significant breach of trust and authority - no prior criminality given less weight as that factor allowed offender into position of trust he abused - response to charge - remorse - contrition - guilty plea - 20 per cent discount - good prospects of rehabilitation - nature and circumstances of offender - violent marriage - psychiatric and psychological material - bipolar disorder, anxiety, depression - connection between condition and offending behaviour - purpose of sentence - general deterrence significant factor due to difficulty in detecting offence - significance reduced due to offender's mental condition - appropriate for sentence to be suspended. Sentencing Orders - whether or not offence involved an "act of indecency" in respect of a child - a Class 2 registrable offence under the Child Protection (Offenders Registration) Act 2000 - limited extra curial punishment. Sentencing Procedure - relevant material - victim impact statement.
Legislation Cited:	Child Protection (Offenders Registration) Act 2000, s 3A(1). Child Protection (Offenders Registration) Regulation, reg 18. Crimes Act 1914 (Cth), s 17A. Criminal Code Act 1995 (Cth), s 473.4, s 474.17, s 474.27A.
Cases Cited:	Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241. Purves v Inglis (1915) 34 NZLR 1051. R v Manson, R v Stamenkovic (Court of Criminal Appeal, 17 February 1993, unreported). TMTW v R [2008] NSWCCA 50.
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Pierre Moss (Offender)
Representation:	Counsel: G E Wright (Crown) G Porter (Offender)
File Number(s):	DC 2012/83530
Publication restriction:	His Honour has elected to use pseudonyms for the names of the offender and the child to protect the child's identity.