Citation: R v Paul Phillip Moore [2018] NSWDC 228
Court: District Court of New South Wales
Date: 24 August 2018
Judge: Colefax SC DCJ
Background
The offender and the victim had been in an intermittent intimate relationship since meeting online in 2014. After the victim ended the relationship, the offender continued to make contact and attend her mother's home in Westmead, where the victim was living prior to a planned move to Queensland with her children.
On 10 November 2016, the day before the victim was due to relocate, the offender concealed himself in bushes at the end of the driveway and waited. When the victim emerged at approximately 6:00am, he attacked her with a homemade weapon consisting of two metal poles taped together, striking her repeatedly to the head and body. He then took her keys and phone, forced her into her car, and drove her to various locations over approximately four hours while she was concussed and vomiting.
During the detention, the offender made repeated threats to kill them both. The ordeal ended when he deliberately accelerated the vehicle into a power pole. The victim suffered a serious laceration to her left ear requiring surgery, facial swelling, bruising, and other injuries. The offender was arrested the same day.
Legal Issues
- What sentences were appropriate for three serious domestic violence offences arising from a single course of conduct on 10 November 2016
- Whether the guilty pleas attracted a utilitarian discount, and if so, at what rate
- Whether special circumstances existed to justify varying the standard non-parole period ratio under the aggregate sentence
- What aggregate term of imprisonment properly reflected the totality of the offending
Decision
His Honour convicted the offender on all three counts. The offences were: causing grievous bodily harm with intent (s 33(1)(b) Crimes Act, maximum 25 years, standard non-parole period of 7 years); detaining with intent to obtain an advantage and occasioning actual bodily harm (s 86(2)(b) Crimes Act, maximum 20 years); and using an offensive weapon with intent to commit intimidation (s 33B(1)(a) Crimes Act, maximum 10 years).
Colefax SC DCJ described the attack as planned, brutal, and cowardly. The indicative sentences before discount were 8 years for the first offence, 6 years for the second, and 8 years for the third. Each attracting a 10 per cent utilitarian discount for the guilty pleas, the discounted indicative sentences were 7 years 2 months, 5 years 5 months, and 7 years 2 months respectively. No indicative sentence would have been fully concurrent with the others, but the court applied the principle of totality to partially accumulate them.
The court declined to find special circumstances. The fact that this was the offender's first time in custody was not considered a sufficient basis for such a finding, and no other relevant reason was identified.
The court applied the Evidence Act 1995 (NSW) to the proceedings on the application of the Crown, made by consent, pursuant to s 4 of that Act.
Orders Made
- The offender was convicted of all three offences
- An aggregate sentence of 12 years imprisonment was imposed
- A non-parole period of 9 years was fixed, commencing 10 November 2016 and expiring 9 November 2025
- A balance of term of 3 years was fixed, commencing 10 November 2025 and expiring 9 November 2028
- The sentence was backdated to the date of arrest, 10 November 2016
Key Takeaways
- The District Court treated the planned, premeditated nature of the attack as a significant aggravating feature, noting the offender had concealed himself and constructed a weapon in advance.
- A 10 per cent utilitarian discount applied to each guilty plea, with the court signalling it had considered whether a lesser discount was appropriate for the principal offence before settling on that figure.
- Where an offender faces multiple serious offences arising from a single course of conduct, partial accumulation of indicative sentences, moderated by totality, produces an aggregate term that addresses the full criminality without producing a crushing result.
- First-time custody alone does not establish special circumstances sufficient to alter the statutory non-parole period ratio under an aggregate sentence.
- Under s 4 of the Evidence Act 1995 (NSW), the Act's provisions can be applied to sentencing proceedings on application, including by consent of the parties.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): s 33(1)(b) (causing grievous bodily harm with intent), s 86(2)(b) (detaining with intent to obtain advantage and occasioning actual bodily harm), s 33B(1)(a) (using an offensive weapon with intent to commit an indictable offence)
- Evidence Act 1995 (NSW): s 4, s 136
Cases cited: None stated in the judgment.