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District Court 4 May 2023

R v Moore

[2023] NSWDC 137

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIME PROPERTY OFFENCES TAKE AND DRIVE VEHICLE CRIME SEXUAL OFFENCES SEXUAL INTERCOURSE WITHOUT CONSENT CIRCUMSTANCES OF AGGRAVATION

Citation: R v Moore [2023] NSWDC 137
Court: District Court of New South Wales
Date: 4 May 2023
Judge: Lerve DCJ

Background

The offender was 26 years old at the time of the offending on 2 November 2021 in and around Narrandera, New South Wales. The victim, a 52-year-old woman working as a pathology courier, was targeted after the offender had already attended a local medical centre and demanded methamphetamine while brandishing bricks at staff.

The offender entered the victim's vehicle without consent and forced her to drive at speed along rural roads while threatening her, grabbing the steering wheel, and pulling her hair. He told her he did not care if he died. He ultimately directed her to a remote boat ramp area near the Murrumbidgee River, where he forced her to perform a sexual act on him. Witnesses at the medical centre had formed the view the offender was heavily affected by drugs and alcohol at the time.

The offender pleaded guilty in the Local Court to carjacking (taking and driving a vehicle with the owner present, contrary to s 154C(1)(b) of the Crimes Act 1900) and aggravated sexual intercourse without consent (contrary to s 61J, with the aggravating circumstance being deprivation of liberty). He also pleaded guilty to two counts of assaulting police officers in the execution of their duty. Two further offences (demanding property with menaces and property damage) were listed on a Form 1 document and taken into account at sentencing.

  • What aggregate sentence was appropriate across the substantive offences, taking into account the offender's mental health, history of deprivation, intoxication, and plea of guilty?
  • How should the court apply the "Bugmy principles" (which address how deprived backgrounds and mental health conditions bear on moral culpability) in assessing the offender's personal circumstances?
  • What weight should be given to the role of intoxication, where it diminishes moral culpability but is also itself culpable conduct?
  • Was a finding of "special circumstances" warranted, justifying a non-parole period shorter than the statutory default of one-third of the head sentence?
  • How should Form 1 matters be taken into account in accordance with the guideline judgment on that topic?

Decision

Lerve DCJ applied the full 25% utilitarian discount for the early guilty pleas. The court accepted that the offender had a significant history of childhood deprivation and trauma, consistent with the principles in Bugmy v The Queen, and that this background reduced, though did not eliminate, his moral culpability. The court also found that mental health difficulties and intoxication at the time of the offending were relevant mitigating factors, while acknowledging that voluntary intoxication carries its own moral weight.

The court identified serious objective gravity across both principal offences. The carjacking involved sustained terror inflicted on a stranger in a confined space over an extended period, with the victim fearing for her life. The aggravated sexual assault compounded that terror, occurring after prolonged deprivation of liberty in an isolated rural location.

Separate indicative sentences were assessed before an aggregate sentence was constructed. The carjacking attracted an indicative sentence of 2 years and 9 months (starting point 3 years and 9 months, before the plea discount), incorporating the Form 1 matters. The aggravated sexual assault attracted an indicative sentence of 5 years and 3 months (starting point 7 years). Fixed terms of 2 months each were imposed for the two assault police counts.

Special circumstances were found, with the court reasoning that the offender's mental health needs and the importance of supervised parole justified a longer-than-usual period on parole. The non-parole period was set at approximately 63% of the total sentence, rather than the ordinary 75%.

Orders Made

  • The offender was convicted on all pleaded offences.
  • An aggregate sentence of 6 years and 4 months was imposed.
  • Non-parole period of 4 years, commencing 2 November 2021 and expiring 1 November 2025.
  • Balance of term (parole period) commencing 2 November 2025 and expiring 1 March 2028.
  • The court recommended release to parole at the expiration of the non-parole period, and strongly recommended that any parole be supervised and conditioned on the offender complying with directions regarding ongoing mental health treatment and counselling.
  • Copies of the expert psychological and psychiatric reports were ordered to be forwarded to the Department of Corrective Services with the relevant warrants.

Key Takeaways

  • The District Court confirmed that the Bugmy principles require sentencing courts to give genuine weight to an offender's history of severe childhood deprivation and resulting mental health difficulties, even in cases involving serious violence and sexual offending, as these factors bear directly on moral culpability.
  • Voluntary intoxication presents a dual consideration at sentencing: it may reduce moral culpability for the offending to some degree, but the decision to become heavily intoxicated is itself a culpable act, and courts must balance both dimensions.
  • A finding of special circumstances can be warranted where an offender's mental health needs are pronounced and ongoing supervision through a longer parole period is considered important to rehabilitation and community protection.
  • Form 1 offences, even where not the subject of separate sentences, must have a genuine and discernible impact on the sentence imposed for the offence to which they are attached, in accordance with the guideline judgment in the Attorney General's Application No. 1 of 2002.
  • The objective gravity of the carjacking was assessed as particularly high given the prolonged and terrifying nature of the ordeal, including threats to kill, interference with the steering wheel at speed, and the victim's complete inability to escape before the subsequent sexual assault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J, 99(1), 154C(1)(b), 195(a), s 58
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 37
- Criminal Procedure Act 1986 (NSW): s 166

Cases
- Bugmy v The Queen [2013] HCA 37
- Park v The Queen [2021] HCA 37
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Form 1 Guideline Judgment)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Aslan v R [2014] NSWCCA 114
- Greaves v R [2020] NSWCCA 140
- Jolly v R [2013] NSWCCA 76
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Barker & Gibson [2006] NSWCCA 20
- R v Gavel [2014] NSWCCA 56
- R v Tuala [2015] NSWCCA 8