AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 2 March 2018

Moore v R

[2018] NSWCCA 26

Sexual offences
CRIMINAL LAW APPEAL SENTENCING

Citation: Moore v R [2018] NSWCCA 26
Court: Court of Criminal Appeal, NSW
Date: 2 March 2018
Judge(s): Beazley P; Garling J; Hidden AJ

Background

The applicant, aged 54 at the time of the offending, came to police attention in March 2015 for communicating online with young males. Police ran a covert operation using a fictitious 14-year-old male identity, which connected with the applicant on Facebook. Over approximately ten weeks, the applicant engaged in sexually explicit communications with the fictitious identity across multiple platforms, sent an image of a naked pubescent male, and masturbated via webcam during Skype sessions.

In May 2015, the applicant sent the fictitious identity a prepaid mobile phone, which was then used to arrange a meeting at Caves Beach. The applicant was arrested at the meeting location. A search warrant executed at his home that same day uncovered child abuse material on his computer and an external hard drive, with forensic estimates of up to 2,776 images and 52 videos across categories ranging from sexually suggestive material to penetrative sexual activity involving children.

The applicant pleaded guilty in the Local Court to two offences: using a carriage service to procure a person under 16 for sexual activity (Criminal Code (Cth), s 474.26(1)), and possessing child abuse material (Crimes Act 1900 (NSW), s 91H(2)). He was sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months for the procurement offence, and 2 years imprisonment for the possession offence, with a significant degree of concurrency applied. On appeal, the applicant argued both sentences were manifestly excessive.

  • Whether the sentences imposed were manifestly excessive, having regard to the objective seriousness of the offences and the applicant's subjective circumstances
  • Whether the sentencing judge erred in finding the applicant showed little insight into the consequences of his offending
  • Whether the sentencing judge gave due consideration and appropriate weight to the applicant's psychiatric history

Decision

The Court of Criminal Appeal, with Garling J and Hidden AJ agreeing with Beazley P, refused leave to appeal. The Court found no error in the sentencing judge's approach and, notably, Beazley P considered the sentences to be lenient in all the circumstances.

On the question of insight, the sentencing judge had found that the applicant showed little insight into the consequences of his offending. The applicant submitted this finding was not open on the evidence, pointing to his psychiatric history and the limited timeframe of the offending. The Court rejected this submission, finding the sentencing judge's conclusion was well supported by the evidence.

On the psychiatric evidence, the sentencing judge had accepted the psychiatrist's opinion that, although the applicant was in a manic episode when he committed the offences, his mental illness did not prevent him from understanding the nature and quality of his actions. The sentencing judge used this finding to reduce moral culpability to some extent, while also treating the risk of future non-compliance with medication as relevant to community protection. The Court of Criminal Appeal found the sentencing judge gave due consideration and appropriate weight to this material.

The Court also endorsed the Crown's submissions on the governing principles for manifestly excessive sentence appeals, as restated in Obeid v R: there is no single correct sentence, and the applicant bears the onus of establishing that the sentence was unreasonable or plainly unjust. No such showing was made here. The notional starting points before the 25 per cent guilty plea discount were less than half the applicable maximum penalties, and the sentencing structure included significant concurrency.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an applicant seeking leave to appeal on the ground of manifest excess must establish that the sentence was unreasonable or plainly unjust; a sentence within a defensible range will not be disturbed even if another approach might have been taken.
  • A sentencing court may treat a mental illness as simultaneously reducing moral culpability and heightening concerns about community protection, where the illness is associated with a risk of future non-compliance with treatment.
  • No error was established in the sentencing judge's finding that the applicant had little insight into his offending, notwithstanding his psychiatric history and the discrete duration of the conduct.
  • The fictitious nature of the police-created identity did not diminish the objective seriousness of the procurement offence; the applicant's belief that he was communicating with a real 14-year-old remained the relevant consideration.
  • Refusing leave to appeal, the Court observed that the sentences were, if anything, lenient when assessed against the objective seriousness of both offences.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.26(1) (using a carriage service to procure a person under 16 for sexual activity; maximum penalty 15 years imprisonment)
- Crimes Act 1900 (NSW), s 91H(2) (possessing child abuse material; maximum penalty 10 years imprisonment)

Cases:
- Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221
- R v Asplund; Asplund v R (2010) 216 A Crim R 48; [2010] NSWCCA 316
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353