R v Moore

Judicial Task on Sentencing

1. In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing. That is, how a judge, in each individual case, must go about the task of fixing a sentence which accords with the legislation, the principles of the common law and one which is appropriate in the particular factual circumstances of this case.
2. In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Moore by applying well-identified principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at [1]-[2]:
3. The principles of law are well established and can be conveniently summarised in the following way: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury…; 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …; 3. The primary constraint upon the power and duty of decision-making … is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict …; 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt …; 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender…. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …". R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
4. It is no part of the sentencing function for me to attempt to discern the basis upon which the jury reached their verdict. But rather, in sentencing Mr Moore, I am obliged to do so, upon findings of fact which I alone make, but with the constraint that those facts must be consistent with the jury's verdict.
5. Sentencing is not an exercise of mathematical precision leading to a single correct answer. Rather, having determined the appropriate facts which relate to the offence, the proper approach to sentencing is to identify all of the factors that are relevant to sentencing in this case, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J; Muldrock at [28].
6. I will apply these principles in the course of this sentence.

The Facts

1. In order to make findings of fact which are consistent with the jury's verdict, those findings will reflect my view that Mr Moore is guilty of murder, that he was not provoked into committing the offence, and that when he delivered the blow to the deceased which caused his death, he was not acting in self-defence.
2. I find the facts of the matter, which are consistent with the verdict of the jury to be as follows.
3. Mr Moore, the offender, was born in September 1988, and so was just 24 years old at the time he killed Dennis Burns. Dennis Burns, the deceased, was an older man who was aged 47 when he died.
4. Mr Moore and Mr Burns had known each other for some time in the context that they shared an interest in the consumption of cannabis and, seemingly, Mr Moore supplied cannabis to Mr Burns.
5. Mr Burns squatted in an abandoned house at 47 Collingwood Street, Coffs Harbour. By October 2012, he had been there for about four months. He lived there by himself. It was apparent that Mr Burns had established a modestly comfortable life there.
6. On the morning of 28 October 2012, Mr Moore visited Mr Burns at his house. The visit lasted approximately 15 minutes and Mr Moore left, seemingly on good terms with the deceased.
7. Mr Moore intended to undertake a trip to a town north of Coffs Harbour to purchase cannabis. Ordinarily, he would include as a component of that purchase, an amount of cannabis for Mr Burns. Prior to the visit on this day, Mr Burns had expressed concern to Mr Moore about both the quality and weight of the drugs being supplied. At about 10.30am, prior to leaving to visit his drug supplier, Mr Moore sent a text to a number of people indicating that he was increasing the price of the cannabis which he was purchasing, and which was to be supplied to them, by an amount of about $20 per ounce. In so doing, he said to at least one of his clients, that he needed the money "to get my boy's dick cut within three days of birth".
8. The increase in price of the drugs was relayed to the deceased, Mr Burns, by a mutual friend of Mr Moore and the deceased. It is apparent that Mr Burns was not pleased by the price increase. The deceased told a visitor to the house in which he was squatting, that he would be happy to pay an extra $20 for fuel to enable Mr Moore to go to the town north of Coffs Harbour, but he was not prepared to pay $20 extra per ounce as part of the purchase price.
9. Commencing at about 11.30am, the deceased started drinking Vodka Cruisers. As well, he commenced smoking an apparently legal herb mixture called "Puff". It was known amongst the deceased's friends that he tended to become aggressive when he drank. As one witness expressed it, the deceased would get "revved up" when he drank alcohol. Smoking cannabis did not make the deceased aggressive.
10. Having visited his drug supplier at about 12.30pm, Mr Moore let it be known that the drugs he had obtained were of very good quality, and of entirely sufficient weight. This message made its way back to the deceased, who took umbrage at the content of the message, and Mr Moore's failure to purchase drugs on his behalf - apparently at the standard, or original price, without the $20 increase proposed by Mr Moore.
11. Over the next few hours, there was considerable communication by both telephone and text message between the offender, Mr Moore, and Mr Burns. It is clear that over time the communication between them deteriorated until it became aggressive and offensive. At about 2.20pm in the course of a telephone call from the deceased to the offender, the deceased threatened to sexually assault Mr Moore's partner, who was at that time pregnant with their baby. Their baby was due a short time later.
12. In response to that threat, Mr Moore sent the deceased a text message reprimanding him with respect to the threat, and told him that he had taken it "too far".
13. At about that time, the offender involved his mother, Ms Michelle Moore. He rang and reported to her the effect of his communication with the deceased. A few minutes later, she arrived at his house with her partner, Mr Brendan Price. Ms Moore was apparently very aggressive and said that she wished to "go and sort this bastard out".
14. After that point in time, the dispute further deteriorated involving, as it did, the offender's mother, Ms Moore, and her partner, Mr Price.
15. By about 3.00pm, in the context of ongoing deterioration in the communication, the offender sent a direct warning to the deceased that, if the deceased made a further bad telephone call, or sent a bad text message, to him or to his mother, that would be "sufficient". He said "this is your warning … pull up".
16. By about 3.30pm it is clear that the deceased had issued a challenge to the offender by text message, telling him that he was waiting for him to come and visit. At about that time, in response, the offender gave what he described as a final warning to the deceased, and admonished him not to take the offender and his mother for a joke. The deceased continued to send the offender messages pointing out that he was waiting for the offender to arrive.
17. When Ms Moore arrived at the offender's house, she said to him that they should go down to the deceased's house and sort him out. The offender warned Ms Moore that the deceased was a "knife man" and known to have knives. Ms Moore was apparently not deterred. Ms Moore by that stage had imbibed alcohol and was observed to be a bit intoxicated. She had arrived at the offender's house carrying a small hobby hammer and a roll of thick cardboard which fitted, rather like an armguard, over her arm to protect it. When she was told that the deceased was known as a knife man, she went to the downstairs area of the offender's house, accompanied by him, to see what weapons they could take. The offender, at the urging of his mother, removed the iron head from a mattock handle and took that handle with him. It was about 900mm long.
18. The offender, Ms Moore and Mr Price set off in a motor vehicle to the deceased's premises. When they arrived at the premises, the offender got out of the car and waited outside the premises. He telephoned the deceased and informed him that he was outside. The deceased came out of his premises and there followed a verbal and physical altercation involving in varying ways, each of the deceased, the offender, Ms Moore and Mr Price. It is clear that each of the participants in this verbal and physical altercation were armed with one sort of weapon or another. The offender had the mattock handle, Ms Moore had the small hobby hammer, Mr Price had a fishing rod, and the deceased had two black handled kitchen knives.
19. The initial confrontation was between the deceased and Ms Moore. Verbal insults were exchanged. Ms Moore was clearly being aggressive, as was the deceased. There was some physical shoving between them. The deceased then produced his knives and held them out towards Ms Moore. She backed away. At that stage the offender and Mr Price were standing to either side of the deceased and slightly away from the fray. The offender then moved in, swinging the mattock handle at the deceased.
20. I am satisfied that the sequence of events which followed involved the following steps: 1. first, there were two blows by the offender to the deceased. One of them to the deceased's right hand in which there was a knife. This blow caused a laceration to the right hand and a fracture of the second metacarpal bone. I am satisfied that the knife fell out of, or was hit out of, the deceased's hand at that point; 2. Ms Moore moved in with the hammer, causing the deceased to retreat a short distance back along the driveway from Edgar Street. As this was happening, she struck the deceased on his forehead causing a small laceration. The deceased bled profusely from that scalp laceration. The hammer was knocked out of Ms Moore's hand and she retreated; 3. the deceased advanced holding the second knife. He was waving it at both the offender and Mr Price, and at one stage threatened to throw it at Ms Moore. By that stage the group had moved towards Edgar Street away from the site of the initial assault; 4. at that stage the offender advanced upon the deceased and swung the mattock handle towards his head. The deceased raised his left arm in a defensive motion. The mattock handle struck the deceased's left arm, causing a fracture of the ulna. The force used was significant. It caused the deceased to fall to the ground. In the process, the knife which the deceased was carrying was dislodged and ended up about two metres away from the deceased, on the ground; 5. by that stage the deceased was prone on the ground and disarmed. Thereafter the offender mounted a brutal assault on the deceased which consisted of blows across his chest to the front which fractured a number of ribs, a blow across his shoulder blade at the rear, and then finally a blow to the deceased's head which caused the injuries I have described above.
21. During the course of the assaults, the offender was heard to say on three occasions to the deceased, the first two at around the time the melee started, and the last occasion as he was leaving, "I'll kill you". This phrase was accompanied by a number of expletives.
22. Although he threatened the deceased with these words, I am not satisfied that he meant them to be taken literally. I am abundantly satisfied that the accused perpetrated the assault intending to cause grievous bodily harm to the deceased. The expert evidence satisfies me that the blows were delivered, particularly to the head, with significant and severe force. The bony fractures suffered by the deceased are testament to that. It was a vicious, brutal and unremitting assault.
23. Bystanders came to aid of the deceased. He was clearly badly injured. An ambulance was called and he was transported to Coffs Harbour Hospital. From there he was moved to the John Hunter Hospital at Newcastle and placed on life support. He died two days later when his life support system was switched off.

Police Investigation

1. After the physical confrontation, the police secured the crime scene and undertook forensic examinations. The offender, having left the scene, disposed of the mattock handle by putting it alongside a fence on a nearby property, went home, showered and changed his clothes. The three participants returned to the offender's house where it was apparent to the offender's partner, that he was very quiet and appeared worried.
2. On 30 October 2012, police executed a search warrant at the offender's house. He was not home at the time.
3. On 1 November 2012, apparently in a state of depression over what had occurred, the offender went to a headland location where he was discovered by a friend a short time later, squatting down about two metres from the edge of the cliff. He was hysterical and crying uncontrollably. He told his friend he just wanted to die.
4. The offender was taken to the Coffs Harbour Hospital. The police were notified and attended at the Coffs Harbour Hospital and placed the offender under arrest.
5. Later that evening the offender participated in an electronically recorded interview in which he gave a version of the events.

Specific Statutory Considerations

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999, identifies a number of matters which the Parliament has provided as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. As well, there are matters that mitigate any sentence to which regard must also be had. It is appropriate to commence with the aggravating factors which I regard as relevant and applicable in these circumstances.
2. In having regard to the aggravating factors, where such a factor may be regarded as being an integral part of the offence, it is not to be considered separately.
3. It is an aggravating factor if the offender has a record of previous convictions, which is the case here: s 21A(2)(b) Crimes (Sentencing Procedure) Act.
4. Mr Moore, despite his youth, has a lengthy criminal history which started at about 14½ years of age. Between April 2003 and September 2006, when he reached adulthood, Mr Moore was dealt with for 28 separate offences, which mostly involved common assaults, damage to or destruction of property, breaking and entering, and finally culminating in an aggravated robbery conviction.
5. Since becoming an adult, Mr Moore has achieved a record of convictions for various drug offences, property offences, driving offences (including offences of driving whilst disqualified and in a manner dangerous to the public). For these last two offences, he served a term of imprisonment of 15 months concluding in May 2011. He was again before the Court in 2012 for a charge of driving whilst disqualified for which he was initially sentenced to a term of imprisonment. On appeal, he was placed on a bond.
6. In addition to these offences, in December 2007, Mr Moore was found guilty of an assault occasioning actual bodily harm, for which he also served a term of imprisonment. This is a conviction for a serious personal violence offence and, accordingly, is particularly relevant here as this offence involves him being sentenced for a serious personal violence offence. I note that the conviction was nearly 5 years before this offence.
7. Whilst I take these previous convictions into account as an aggravating factor in the determination of the appropriate sentence for this offence, I am not punishing Mr Moore again for the criminality involved in these earlier offences which I have discussed: Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465, but they do point to the need to give weight to personal deterrence and the protection of society.
8. The offence was committed in the company of Ms Moore and Mr Price. That is an aggravating factor: s 21A(2)(e) Crimes (Sentencing Procedure) Act.
9. The offence was part of a planned criminal activity. I am satisfied that before they set out from his home, the offender agreed with his mother and her partner that they would go and "sort the deceased out" and in so doing, probably to inflict physical injury upon him. That, I am satisfied, was their intention at all times. I am not satisfied that there was any sophisticated plan to kill the deceased. To the extent described, the killing occurred in the course of a planned criminal activity. That is an aggravating factor to which I will have regard: s 21A(2)(n) Crimes (Sentencing Procedure) Act.
10. It is an aggravating factor if the offence involved the use of violence or of a weapon: s 21A(2)(b) and (c) Crimes (Sentencing Procedure) Act. However, having regard to the nature of the offence, I do not think it appropriate to give any weight to these aggravating factors over and above that which would ordinarily be applied to an offence of this kind.
11. Of particular importance, is that at the time of the offence, Mr Moore was the subject of a bond which had been imposed by the District Court on 25 July 2012. On that date he was before the District Court on an appeal against a sentence of imprisonment for driving whilst disqualified. The conviction for that offence was confirmed, but in lieu of the term of imprisonment which was originally imposed, Mr Moore was ordered to enter into a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act, to be of good behaviour for a period of 2 years commencing in July 2012 and expiring in July 2014. It follows that within a few short months of entering into that bond, Mr Moore was disregarding it, by committing this offence. This is an aggravating factor: s 21A(2)(j) Crimes (Sentencing Procedure) Act.
12. I have earlier described the facts and circumstances surrounding the offence. It took place at the home of the deceased, Mr Burns, although he did not own or have legal permission to live there. Nevertheless, Mr Moore's counsel conceded that the fact that the offence took place in the home of the deceased was an aggravating factor for the Court to take into account: s 21A(2)(eb) Crimes (Sentencing Procedure) Act.
13. The offence also took place within public view. I am not satisfied beyond reasonable doubt that the public safety was endangered. I do not take this into account as an aggravating factor: s 21A(2)(i) Crimes (Sentencing Procedure) Act.
14. Each of the aggravating factors described above will be taken into account.
15. There are mitigating factors to which the Court is required to have regard. Principally, if the Court is persuaded that the offender is unlikely to re-offend, has good prospects of rehabilitation, and has shown remorse, then the sentence which would otherwise be imposed may be mitigated.
16. It is appropriate to assess whether Mr Moore is unlikely to re-offend, and has good prospects of rehabilitation: s 21A(3)(g) and (h) of the Crimes (Sentencing Procedure) Act. These can be conveniently considered together in this case. If the offender is to rehabilitate himself, thereby reducing his prospect of re-offending, then he must address his existing drug dependency and the associated issues, which seem linked to this offence. If he can address such issues, then his youth, the fact that he has children for whom he will be responsible, and the deterrent effect of a lengthy jail term ought to all tell in his favour.
17. The offender, according to his affidavit, has taken positive steps whilst in custody to turn his life around. It is to be hoped that he maintains this approach.
18. In all of the circumstances, he has some prospect of rehabilitation which must, because of his drug dependency, be regarded as guarded. Similarly, I would regard his likelihood of re-offending to be something about which it is too early to form any conclusion. Such likelihood will depend entirely on his course whilst in custody.
19. If an offender shows remorse by demonstrating that he has accepted responsibility for his actions and acknowledging the injury and loss caused by him, the Court may have regard to this as a mitigating factor in the sentence imposed: s 21A(3)(i) Crimes (Sentencing Procedure) Act.
20. To an extent in his electronically recorded interview, the offender displayed remorse. In his affidavit, he has clearly, and in my view, persuasively, shown his remorse. I accept that every day he wishes to turn back time, that he is truly and deeply sorry for everyone affected by his actions. I am satisfied that he is remorseful and that should be taken into account in mitigation of his sentence.
21. If an offender provides assistance to law enforcement authorities, then that will be a mitigating factor to which the Court may have regard: s 21A(3)(m) the Crimes (Sentencing Procedure) Act. The Crown has acknowledged that the offender conducted his defence in a manner that facilitated the administration of justice, although it was submitted that this feature would have no weight. I do not accept that the assistance of the offender to the administration of justice should be given no weight. It will be taken into account, and weighed in the balance of all other matters.
22. Each of these mitigating factors will be taken into account.

The Offender's Criminality

1. It is appropriate to make an assessment of the objective criminality involved in the offender's offence. This is to be assessed without reference to matters personal to the offender, and is to be assessed wholly by reference to the nature and circumstances of the offence: Muldrock at [27].
2. In my assessment, the criminality is serious. The offender has beaten the deceased to death. He has gone to the deceased's house in the company of others intending to have a fight with him. He has armed himself for the purpose of that fight. In the course of the fight he has inflicted many, very serious, injuries on the deceased. The last of those injuries inflicted being a blow delivered with significant force to the head of the deceased whilst he was on the ground and unarmed, was a brutal and cruel action.
3. I assess the seriousness of the offence as being slightly above the mid-range of seriousness of objective criminality.

Subjective Circumstances of the Offender

1. The offender is now 26 years old. He was 24 when he killed the deceased. He is still a young man.
2. The offender's personal and family history can best be described as chaotic, dysfunctional and tragic.
3. He did not know his natural father, Mr Norman Ward, until he was 14 years old. At that time, he discovered that his mother had lied to him, by telling him that his father was dead. Tragically, just as he started to develop a relationship with his natural father, Mr Ward died of a brain tumour, or perhaps a drug overdose.
4. The offender has not had a stable family or home life. He has lived with a number of step-fathers, as his mother changed her relationships.
5. Shortly after he turned 14, the offender was placed in foster care by the Department of Community Services. In that year, the Department received 28 reports about the offender which related to serious and personal conflict between him and his mother, Ms Michelle Moore. The offender's initial placement into foster care happened because of conflict between him and his mother which resulted in her tying him up and sedating him.
6. The offender's life was chaotic for a number of reasons, as he moved between youth refuges, staying with friends, returning home to his mother and, perhaps, occasional homelessness. He became a drug user during this time and descended into a life in which criminal activity played a role.
7. The offender's education was limited. He attended High School until about halfway through Year 9. He did a number of TAFE courses after that.
8. His drug dependence started at the age of 9. By the age of about 13 or 14, he was using cannabis heavily. He occasionally used Ice. I accept, as he said, "My life was driven by my cannabis use, and not much else".
9. At the time of this offence, he was in a relatively stable relationship which had subsisted for about 12 months. His partner had two children by a previous relationship, and she was pregnant with their first child. Clearly, the offender's life had commenced to stabilise. He had ceased using Ice, and had reduced his cannabis use. He was in casual employment. Since going into custody this relationship has ceased. He has no ongoing contact with his newly born son, or his two stepdaughters.
10. This dysfunctional upbringing, in which the offender has had no male role model, but has had early exposure to drugs, and a volatile and complex relationship with his mother, helps explain his current circumstances, his past criminal history and how he came to commit this crime. However, it does not excuse his crime.

An Appropriate Sentence

1. In considering the appropriate sentence to be imposed on Mr Moore, I commence with the reminder that murder involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community.
2. Ordinarily, a conviction for murder warrants a substantial sentence because the demands of punishment, and the deterrence of the broader community against similar conduct, are of significant importance. In Mr Moore's case there is also a need, having regard to the fact that this conduct occurred whilst he was at conditional liberty, to ensure that any sentence which is imposed will act as a specific deterrent to him from engaging in unlawful conduct.
3. I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act, and as was submitted by counsel for Mr Moore. In my view, the usual period of parole will be adequate to assist Mr Moore to re-integrate into the community at the completion of his non-parole period.
4. I have discussed all of the facts which are relevant to the decision including the relevant subjective circumstances of the offender, and it is now necessary to make a value judgment as to what is the appropriate sentence.
5. This was a serious offence involving the killing of a man over a minor dispute about drug supply. The victim was confronted by three armed people. All self-control was lost. Rational behaviour was set to one side. The victim was bashed about the head with a weapon and died from the blows inflicted by the offender.
6. There is nothing which adequately justifies the conduct of the offender. That he was young, immature, and clearly influenced by the temper and malevolence of his mother may partly explain what happened. I am not satisfied that he was acting in self-defence.
7. I have taken into account the facts as I have found, and all of the factors and matters to which attention has been paid in these remarks. I determine the appropriate overall sentence to be one of 24 years imprisonment. Of that sentence, I determine that Mr Moore must spend 18 years in jail before being eligible for parole.

Commencement Date

1. The sentence should commence on the day that Mr Moore was arrested and taken into custody, namely 1 February 2012.

Offence of Serious Personal Violence

1. I am required to warn Mr Moore, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of which he has been convicted, and for which he is about to be formally sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought be detained in ongoing custody or else ought be the subject of an extended supervision order, impacting upon his liberty.

Sentence

1. Mr Moore, I sentence you to the following term of imprisonment: 1. A non-parole period of 18 years commencing on 1 November 2012 and concluding on 31 October 2030. 2. A balance of term of 6 years commencing on 1 November 2030 and concluding on 31 October 2036. 3. You will not be eligible to be released before the expiry of your non-parole period.

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