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Court of Criminal Appeal 8 July 2024

Moore v R

[2024] NSWCCA 115

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE TWO CHARGE SETS COMPRISING SEVEN COUNTS EX TEMPORE JUDGMENT NO ERROR

Citation: Moore v R [2024] NSWCCA 115
Court: Court of Criminal Appeal, NSW
Date: 8 July 2024
Judges: Harrison CJ at CL, Davies J (primary judgment), Sweeney J

Background

The applicant pleaded guilty in the Local Court to seven counts across two charge sets, encompassing assault occasioning actual bodily harm, sexual intercourse without consent, recording an intimate image without consent, acting with intent to influence a witness, aggravated detain for advantage, and intentionally choking. He was sentenced in the District Court to an aggregate term of 10 years' imprisonment with a non-parole period of 6 years and 6 months.

The offending occurred over a six-month period during which the applicant and the complainant were in a relationship and living together. The relationship was characterised by serious domestic violence. On two occasions the complainant required hospital treatment for injuries inflicted by the applicant. In August 2021, the applicant filmed himself having sexual intercourse with the complainant while she was unconscious, accompanied by degrading acts including slapping and spitting. The second charge set arose when the applicant interrogated the complainant about her contact with police, physically abused her, and refused to let her leave his car for approximately 90 minutes.

At the sentence hearing, the applicant relied on a psychologist's report disclosing a traumatic childhood marked by domestic and sexual violence. He was diagnosed with drug use disorders, PTSD, and antisocial and borderline personality traits. The sentencing judge reduced his moral culpability by reason of what are known as "Bugmy factors" (principles from Bugmy v The Queen (2013) 249 CLR 571 concerning the relevance of deprived backgrounds to sentencing) and made a finding of special circumstances justifying adjustment of the non-parole period.

  • Whether the sentencing judge erred by failing to apply principles applicable to offenders with mental health issues and Bugmy factors, including by not reducing the weight given to general and specific deterrence, or by failing to give adequate reasons on this point
  • Whether the sentencing judge erred in assessing the objective seriousness of the sexual intercourse without consent offences, given the parties' prior consensual sexual relationship involving dominating and degrading behaviour
  • Whether the aggregate sentence of 10 years' imprisonment was manifestly excessive

Decision

Ground 1: Mental health and Bugmy factors

The Court found no error in the sentencing judge's approach. Because no submission was made at first instance about a causal connection between the applicant's background or mental health and the specific offending, the sentencing judge was not obliged to draw that link independently or to address every part of the psychological report. The decision in Lloyd v R [2022] NSWCCA 18 was distinguished on this basis. Further, the sentencing judge was entitled to give weight to general and specific deterrence notwithstanding the reduced moral culpability finding, particularly in light of the applicant's prior criminal record and the violent nature of the offending. The weight afforded to deterrence is a matter for the sentencing judge.

Ground 2: Objective seriousness of the sexual offences

The Court confirmed that any prior consensual sexual arrangement between the parties did not diminish the objective seriousness of the offences charged. The applicant's submission that the sado-masochistic nature of the relationship should reduce the gravity of the offending was rejected. The sentencing judge's findings were consistent with the agreed statement of facts: the complainant was unconscious and could not have consented, and the conduct was accompanied by degrading and violent acts. Those findings were entirely open on the evidence.

Ground 3: Manifest excess

The Court held that a challenge to individual indicative sentences must ultimately be assessed against the aggregate sentence. Having considered comparable cases put forward by the applicant, the Court found the indicative sentences and the aggregate sentence were not out of line with comparable authority and were not plainly unjust. Comparisons with other cases were of limited utility given the number and seriousness of the counts here, which reflected a serious course of domestic violence over six months. Several of the indicative sentences were, if anything, lenient. The applicant's assessed above-average risk of reoffending sexually, his prior criminal record, and the fact that all offences were committed on conditional liberty were among the factors supporting the sentence imposed.

Orders Made

  • Extension of time to seek leave to appeal granted to 2 April 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not obliged to identify a causal link between an offender's mental health background and the specific offending where that link was never put in submissions at first instance, even where the psychological material is before the court.
  • Where Bugmy factors apply and moral culpability is reduced, a sentencing judge may still give significant weight to general and specific deterrence, particularly where the offender has a relevant criminal record and the offending is violent. The allocation of weight to deterrence remains within the sentencing judge's discretion.
  • Prior consensual sexual activity between parties does not reduce the objective seriousness of a sexual assault. Agreement to film sexual activity in one context does not extend to filming or engaging in sexual intercourse with the complainant while unconscious.
  • In dismissing a manifest excess challenge, the Court of Criminal Appeal reiterated that comparable cases are of limited utility where the overall pattern of offending differs significantly in number and kind from cases offered for comparison.
  • Challenges to individual indicative sentences in an aggregate sentencing regime must ultimately be assessed by reference to whether the aggregate sentence is plainly unjust, not by isolating each indicative term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 37, 59, 61I, 86, 91P, 195, 323, 324
- Drug Misuse and Trafficking Act 1985 (NSW): ss 13, 21

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Bussey v R [2020] NSWCCA 280
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Harper v R [2022] NSWCCA 211
- Horne v R [2023] NSWCCA 276
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Lloyd v R [2022] NSWCCA 18
- Mattiussi v R [2023] NSWCCA 289
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pender v R [2023] NSWCCA 291
- R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14