Citation: R v Moore, Jodie [2009] NSWDC 196
Court: District Court of New South Wales
Date: 7 April 2009
Judge(s): Nicholson SC DCJ
Background
The offender was a woman living in Brewarrina, in rural New South Wales. On the morning of 26 August 2007, she discovered that her son's motorcycle, which she had funded, had been deliberately sabotaged the previous night. A 15-year-old boy had been present with the person responsible for the damage.
The offender entered the home of her long-time friend, where the victim was present, and confronted him in aggressive terms. The victim fled through a laundry window. She then took him without his consent in her vehicle, apparently intending to locate the person responsible for the damage and then travel to Brewarrina Police Station to report the matter. The victim escaped the vehicle during the journey. The offender subsequently attended the police station and reported the motorcycle damage.
The offender was charged with entering a dwelling with intent to commit a serious indictable offence (namely to intimidate the victim) and taking a person without consent with intent to obtain an advantage (namely information about the motorcycle damage). She pleaded guilty to both counts. The Crown accepted those pleas in full satisfaction of the remaining charges on the indictment.
Legal Issues
- Whether the objective and subjective circumstances of the offending warranted a discharge without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999
- Whether the offender's background, including severe childhood trauma, was relevant to the sentencing exercise
- Whether the cultural context of the offending within a rural Indigenous community was a relevant consideration
Decision
His Honour found that the objective seriousness of both offences fell towards the lower end of the range. The court noted that the offending arose from strong provocation, given the deliberate and significant damage to the motorcycle, and that the offender's intent appeared directed at obtaining information and reporting the matter to police rather than causing lasting harm to the victim. His Honour observed that, on the agreed facts, a jury might well have deliberated at length over whether the Crown had proved guilt beyond reasonable doubt, given the availability of certain defences.
The court placed considerable weight on the offender's subjective circumstances. The offender had lost both parents before the age of five and was placed in a children's home where she suffered prolonged sexual abuse between the ages of approximately six and thirteen. Her abuser was not convicted until 2006 and received a total sentence of 16 years imprisonment. As a consequence of that abuse, the offender suffered from post-traumatic stress disorder and possible borderline personality disorder, conditions that contributed to her irritability and the conduct underlying the offending.
His Honour also took into account the community context. The court acknowledged that in many Indigenous communities, adults take on a degree of responsibility for the behaviour of other families' children, and that this context informed the offender's response to what had occurred. The Crown prosecutor himself observed that the matter could more appropriately have been resolved by mediation or, if criminally, in the Local Court.
On the totality of those matters, his Honour was satisfied that the circumstances were properly described as extenuating, and that a section 10 discharge without conviction was appropriate for both counts.
Orders Made
- Count 1 (enter dwelling with intent to commit a serious indictable offence): guilty finding recorded, discharged without conviction pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
- Count 2 (take person without consent with intent to obtain advantage): guilty finding recorded, discharged without conviction pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999
- Backup offences of enter dwelling with intent to assault and common assault dismissed on the application of the Crown pursuant to section 166
Key Takeaways
- A section 10 discharge without conviction remains available even for offences that are, on their face, serious indictable offences, where the objective circumstances fall at the lower end of the range and the subjective circumstances are compelling.
- The District Court treated the offender's prolonged childhood sexual abuse in an institutional setting, and its diagnosed psychological sequelae, as directly relevant to the sentencing exercise, accepting that those conditions contributed to the conduct underlying the offending.
- Cultural context within a rural Indigenous community was treated as a relevant sentencing consideration, including community norms around adult responsibility for the behaviour of young people.
- Where agreed facts significantly alter the complexion of offences as charged, the sentencing court will assess criminality on the basis of those agreed facts rather than on the face of the indictment alone.
- His Honour's observation that the matter was more suitable for mediation or Local Court resolution reflects the principle that the criminal law should be applied proportionately, with the response calibrated to the actual nature and degree of the wrongdoing.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10(1)(a) (discharge without conviction)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 166 (dismissal of backup offences)
Cases cited: None identified in the provided text.