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Court of Criminal Appeal 4 November 2019

Moore v R

[2019] NSWCCA 264

Assault & violenceDomestic & family violence
CRIME APPEAL AGAINST SENTENCE OFFENDING

Citation: Moore v R [2019] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 4 November 2019
Judges: Macfarlan JA, Johnson J, R A Hulme J

Background

The applicant pleaded guilty to three offences arising from a sustained attack on his former partner. The offending began when he ambushed her outside her home, striking her repeatedly around the head and body with an improvised metal pole. He then forced her into her car and drove around western Sydney for approximately four hours, making threats to kill himself and her. The ordeal ended when the applicant crashed the car into a telephone pole.

At the District Court at Parramatta, Judge Colefax SC imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 9 years. The indicative sentences for the individual counts were: 7 years 2 months (causing grievous bodily harm with intent), 5 years 5 months (detention with intent to obtain a psychological advantage, with actual bodily harm), and 7 years 2 months (using an offensive weapon with intent to intimidate). Each indicative sentence was reduced by 10 per cent to reflect the utilitarian value of the guilty pleas.

The applicant sought leave to appeal against sentence, filing his notice two days out of time. The Court granted an extension, as the delay was minimal and the Crown did not oppose it.

  • Whether the sentencing judge erred in assessing the objective seriousness of the grievous bodily harm offence (Count 1) and the offensive weapon offence (Count 4)
  • Whether the sentencing judge failed to accurately assess the applicant's prospects of rehabilitation and risk of re-offending
  • Whether the aggregate sentence of 12 years with a 9-year non-parole period was manifestly excessive

Decision

Objective seriousness of Counts 1 and 4: The Court found no error in the sentencing judge's assessment of either count. On Count 1, the Court noted that section 33 of the Crimes Act 1900 captures a broad range of conduct and consequences, and that the gravity of injury, while relevant, is not the sole determinant of objective seriousness. Aggravating factors included the planning involved, the duration and brutality of the attack, the absence of provocation, and the domestic context. On Count 4, the Court rejected the argument that the offence was diminished by its spontaneous and brief nature. Using a weapon with intent to intimidate will often be brief, and the act had to be assessed in its full context.

Rehabilitation and re-offending: The Court held it was open to the sentencing judge to approach the mitigating factors as he did. No error was established in the findings about the applicant's prospects of rehabilitation or the assessed risk of re-offending.

Manifest excess: The Court dismissed the manifest excess ground. R A Hulme J observed that sentencing statistics and comparative cases are of limited utility when the materials lack key information or the cases are not directly comparable. The indicative sentences were within the discretion available to the sentencing judge, having regard to the maximum penalties and, for Count 1, the standard non-parole period. The degree of partial accumulation of the indicative sentences was also appropriate: this was plainly not a case where the criminality of one offence could be comprehended within the sentence for another.

Johnson J added observations on the domestic violence dimension of the offending. His Honour noted that the offences reflected the applicant's exercise of control and domination over the victim, features common to domestic violence offending. Specific and general deterrence, denunciation, and recognition of harm to the victim were all important considerations on sentence.

Orders Made

  • Time to file the Notice of Application for Leave to Appeal extended to 25 July 2019
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under section 33 of the Crimes Act 1900, the gravity of injury sustained is a pertinent but not determinative factor in assessing objective seriousness; a wide range of conduct and consequences falls within the provision.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a brief or spontaneous use of an offensive weapon must be assessed in its full factual context, not in isolation from the surrounding course of conduct.
  • Sentencing statistics and comparable cases carry limited utility where the source materials lack key information or where the comparison case is not sufficiently analogous to the matter under consideration.
  • Partial accumulation of indicative sentences is appropriate where each offence captures distinct criminality that cannot be comprehended within the sentence for any other offence, following Cahyadi v R [2007] NSWCCA 1.
  • The Court of Criminal Appeal confirmed that domestic violence offences involving control and domination call for significant weight to be given to specific and general deterrence, denunciation, and recognition of harm to the victim, consistent with Cherry v R [2017] NSWCCA 150.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 33(1)(b), 33B(1)(a), 86(2)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Evidence Act 1995 (NSW), s 136

Cases:
- AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Cherry v R [2017] NSWCCA 150
- Heron v R [2006] NSWCCA 215
- Majzoub v R [2019] NSWCCA 94
- Nguyen v R [2019] NSWCCA 87
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- R v Burton [2008] NSWCCA 128
- R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
- R v Mulato [2006] NSWCCA 282
- R v Williams [2004] NSWCCA 246; (2004) 148 A Crim R 325
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460