R v Moore; R v Price

Supreme Court of NSW|2015-05-04|Before: Garling J

REMARKS ON SENTENCE

On 22 November 2012, Michele Kathleen Moore (Ms Moore) and Brendan James Price (Mr Price), who are husband and wife, were arrested and charged with the murder of Dennis Burns (Mr Burns).
Three weeks earlier, on 1 November 2012, Mr James Moore, the 24 year old son of Ms Moore, was charged with the murder of Mr Burns.
After being committed for trial by the Local Court at Coffs Harbour on 14 November 2013, Ms Moore and Mr Price upon arraignment in this Court on 7 March 2014, each entered a plea of not guilty.

Principal Offence

On 28 October 2012, an argument conducted over the telephone and by text message, occurred between the deceased, Mr Burns, and Mr James Moore.
As I have said, Mr Moore is the 24 year old son of the offender, Ms Moore, and the step-son of the offender, Mr Price.
Mr James Moore assaulted Mr Burns outside the house in which he, Mr Burns, was squatting in Collingwood Street, Coffs Harbour. The weapon used by Mr Moore was a wooden mattock handle, approximately 900mm long. Mr Moore struck a number of blows to Mr Burns. He caused fractures to his right hand, left ulna, a number of ribs, the sternum, and ultimately a fracture to the left vertex and right fronto-temporal areas of Mr Burns' skull. This skull fracture was caused by a blow directly to Mr Burns' head whilst he was prostrate on the ground. It caused a 70mm laceration to Mr Burns' scalp and an extensive acute subdural haematoma. This final blow, the skull fracture and the subdural haematoma caused the death of Mr Burns two days later in John Hunter Hospital, when his life support system was turned off.
This conduct by Mr James Moore led to his conviction for murder.
The Crown case against Ms Moore and Mr Price was not that either of them struck the fatal blow, but rather that each of them encouraged and assisted Mr Moore in his brutal assault on Mr Burns, and were themselves guilty of murder because they were aiders and abetters to the principal offence of murder by Mr James Moore.

Judicial Task on Sentencing

The principles of law which a sentencing Judge must apply are of long standing and are well identified.
The first principle is that following a conviction after trial by jury, the Judge has the responsibility of determining the punishment to be inflicted upon the offender, not the jury.
Secondly, in order to determine the appropriate punishment, it is the duty of the Judge to find the facts relevant to that sentencing.
Thirdly, in so doing, the facts that are determined must be consistent with the verdict of the jury. But, it is not appropriate for a sentencing Judge to attempt to decipher why, or how, the jury came to its decision. Rather, it is the role of the Judge to find facts which are consistent with the jury's verdict.
Fourthly, any findings of fact made against either of the offenders, must be made on the basis that the sentencing Judge is satisfied of those facts beyond reasonable doubt. Where an offender has the onus of proving a fact or facts for the purpose of sentence, then the sentencing Judge need only be satisfied of that fact on the balance of probabilities.
It is important to note that there is no requirement falling generally onto a sentencing Judge that the offender must be sentenced on the basis of the facts which are most favourable to her or him. The reality may be, however, since the sentencing Judge must be satisfied beyond reasonable doubt of a fact before a finding against an offender, that an offender will be sentenced on the basis of facts most favourable to them [2] .
It is important to explain that sentencing is not a formulaic exercise, nor one involving the application of mathematical precision leading to a single correct result. The obligation on the sentencing Judge is to determine the appropriate facts relating to the offence, identify all of the factors that are relevant to sentencing in a particular case, evaluate their significance, and then to make a judgment as to what an appropriate sentence is, having regard to the objectives of sentencing [3] .

Sentencing Objectives

The Parliament of NSW has set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, the purposes for which a court may impose a sentence on an offender. A sentencing Judge is obliged, so far as it is possible, in formulating a sentence to take into account and give weight to each of these purposes.
The purposes of sentencing determined by the Parliament are: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of the crime and the community.
It is self-evident that these purposes overlap, may be in conflict and cannot be considered in isolation one from the other in their application to a particular case. These purposes do not rank in any order of priority.
As well, the Court is obliged to have regard to the Common Law principles which have been developed over time by courts to provide guidance for the exercise of the sentencing discretion by every Judge.
Of particular relevance here are two of those principles. The first is that any sentence which is imposed should be proportionate to the gravity of the offence [4] .
The second is the principle of parity, namely, that any difference between sentences imposed upon co-offenders for the same offence, ought not be such as to give rise to a justifiable sense of grievance and to give to the appearance that justice has not been done [5] .
Finally, the provisions of s 21A of the Crimes (Sentencing Procedure) Act are also applicable here. That legislation calls attention to matters which are regarded by the Parliament of NSW as aggravating factors to be considered by a court, and other matters which are regarded by the Parliament of NSW to be mitigating factors to be taken into account by the Court.

Principal Offender

As is apparent from my earlier remarks, Mr James Moore, was the principal offender in the death of Mr Burns. He was the one who wielded the wooden mattock handle which directly caused the death of Mr Burns when it struck his head.
On 28 November 2014, Mr Moore was convicted of murder by a jury. On 13 March 2015, he was sentenced to imprisonment for an overall term of 24 years with a non-parole period of 18 years. His sentence commenced from the date of his arrest on 1 November 2012.

The Facts

I make the following findings of fact, which are consistent with the jury's verdict and which reflect my view that both Ms Moore and Mr Price encouraged and assisted Mr James Moore, in various ways, to the commit the offence of murder.
Ms Moore submitted to the jury that she had acted to defend herself from the knife-wielding Mr Burns. Mr Price submitted to the jury that he acted to defend Ms Moore against a physical attack from Mr Burns. It must follow from the verdicts of the jury, that they were satisfied beyond reasonable doubt that neither Ms Moore or Mr Price were acting in self-defence. My findings of fact will reflect this conclusion.
As I have said, Mr James Moore was 24 years old at the time he killed Mr Burns. Mr Burns, the deceased, was aged 47 when he died. Mr Moore and Mr Burns had known each other for some time and were associated in the world of illicit drugs. The text messages between them at the time support a conclusion that Mr Moore, from time to time, supplied cannabis to Mr Burns.
Mr Burns was living, as a squatter, in a house at 47 Collingwood Street, Coffs Harbour, which was apparently abandoned by its owners. He seemed to live there by himself and the photos of the premises suggest that he had established himself there in a modest but comfortable way.
On the morning of 28 October 2012, Mr Moore visited a drug supplier in Woolgoolga - a town to the north of Coffs Harbour. He offered to purchase drugs for Mr Burns, but indicated to him that there would be an increase in the price of the cannabis that he was purchasing in an amount of $20 per ounce. Mr Burns was offended by the price increase and a dispute ensued between Mr James Moore and Mr Burns. That dispute was no doubt contributed to by Mr Burns drinking significant quantities of alcohol, which usually caused him to become aggressive.
Upon his return from visiting his drug dealer, the communications between Mr James Moore and Mr Burns continued, but their tone degenerated significantly. The tone, largely on the part of Mr Burns, became increasingly aggressive, offensive and tended to incoherence. At one point, Mr Burns threatened to sexually assault Mr James Moore's heavily pregnant partner. This, no doubt, aggravated the situation.
At about 3.00pm Mr James Moore, seemingly in an attempt to calm things down, sent Mr Burns a text which said "one more bad call or text, this is your warning, pull up".
At around that time, Mr James Moore contacted his mother, who was then at her home with her husband Mr Price. I am satisfied that they discussed what was going on, and either Mr James Moore sought the assistance of his mother, or else she offered to assist him. Ms Michele Moore made contact with Mr Burns via a text message which read: "Don't f*** with people you don't know. James, mum and dad f***wit go it"
It was clearly Ms Michele Moore's intention was to involve herself in the dispute between Mr Burns and her son. She wanted to make it appear that her son had the support of both herself and Mr Price, and that Mr Burns should know that he was confronting all of the members of the family and not just Mr James Moore.
This is made clear a few minutes later when, after a further discussion of the matter with her son over the telephone, Ms Moore sent a text message to Mr Burns which, omitting profanities, read "You got a problem with James, you got a problem with his kin and we no Fernando too dickhead" (sic).
A little later, at 3.32pm, Mr James Moore sent his mother a text saying "He's still going, says he waiting for me and says I'm out of town and says I'm a big girl hiding behind mummy".
About 10 minutes later, Mr James Moore sent a further text to his mother saying: "Still going right on with it".
Very shortly after that, about a minute or so later, Mr James Moore sent a text to his mother, which read as follows: "I want to go kick his teeth in, its message after message".
At 4.13pm, at a time when Ms Moore and Mr Price were driving from their home to collect James Moore from his home, Mr James Moore sent what seems to have been the final text message to his mother saying: "He keeps calling and calling over and over saying bad s*** and saying 'come on where are you' ".
Ms Michele Moore and Mr Price lived about six minute drive from her son's house. It was about an eight minute drive from her son's house to where Mr Burns lived.
Ms Michele Moore, fired up over the way in which Mr Burns was dealing with her son, and apparently concerned for her son's well-being, decided that she would take her son down to confront Mr Burns in order to resolve the festering dispute.
She armed herself with a hobby hammer before leaving her house. Mr Price got into the car. It is unlikely that he saw the hammer which Ms Michele Moore carried from the house to the car. There was a fishing rod in the car which Mr Price later used as an implement in the attack on Mr Burns. They drove from their house to collect Mr James Moore. When they arrived at his house at about 4.15pm, Mr James Moore was waiting for them and was holding a wooden mattock handle. This implement was obviously solid and obviously dangerous. It was a little under 1m in length. I am satisfied beyond reasonable doubt that both Ms Michele Moore and Mr Price could see the mattock handle being carried by Mr James Moore to the car. Mr Moore got into the car and the three of them drove together to Mr Burns' house.
I am not satisfied that Mr Price knew of the precise content of the text messages which I have described, nor the contents of the telephone calls between his wife and her son. However, I am not prepared to accept that he had absolutely no knowledge of what was going on. It is inevitable that he knew in general terms that there was a dispute between Mr Burns on the one hand, and his step-son and wife on the other. He knew that, as a group of three adults, they were going down to confront Mr Burns and that Mr James Moore was armed with the wooden mattock handle.
When he got out of the car at the scene, Mr Price took the fishing rod with him. At that point in time, I am satisfied that he knew that the proposed confrontation would likely be a violent one, and he armed himself with an available weapon.
I am well satisfied that Ms Michele Moore knew at a slightly earlier time namely, when she picked Mr James Moore up from his house, and whilst she was driving Mr James Moore to the house in Collingwood Street, that he intended to assault Mr Burns and, having regard to the nature of the weapon which he was carrying, that any assault would be likely to cause serious physical injury. One blow of the mattock handle wielded by a much younger and stronger man against an older man would have been likely to cause serious physical injury. So much was obvious. It must have been, and I am satisfied was, known to Ms Moore.
It was Ms Michele Moore's case that she was going to defuse the situation in an attempt to achieve a peaceful outcome. I reject that proposition. A mother does not drive her son, whom she knows is armed with a weapon capable of causing serious harm, and whom she knows to have violent tendencies, to the scene of a confrontation when she herself is armed, albeit with a small weapon. At no time after she arrived at the scene did she do anything which remotely suggested that she went there to attempt to make peace with Mr Burns.
Upon arrival at the scene there was a confrontation. Each of the participants in this confrontation was armed in one way or another. Mr James Moore had the wooden mattock handle, Ms Michele Moore had a hobby hammer and Mr Price was carrying a fishing rod which was 1.75m long. The deceased, Mr Burns, was armed with a number of knives.
I am satisfied that the initial confrontation was between Ms Michele Moore and the deceased. She was yelling very aggressively at the deceased from about 30cm away. She was "… in his face …". She was using a loud voice which was heard by people up to 50m away. There was some physical shoving between them. The deceased produced his knife or knives, and threatened Ms Moore with them. The group moved out towards the middle of the roadway, and then back to the grass verge and driveway area of the deceased's house. It was a dynamic situation.
After Ms Michele Moore was initially threatened, both Mr James Moore and Mr Price stepped forward and threatened to hit the deceased. At a point in time early in the course of the confrontation, and after an initial blow had been delivered by Mr James Moore, Ms Michele Moore stepped forward and hit the deceased on his forehead with the hammer. This caused a laceration to the deceased's scalp and a good deal of blood flowed from the laceration and dripped onto the hammer, which Ms Michele Moore then dropped.
Shortly afterwards, as the deceased produced another knife, Mr James Moore struck the deceased with a series of blows. The first blows, aimed at the deceased's right hand and left arm, disarmed him and caused bony fractures to the hand and forearm of the deceased who fell to his knees. Although injured by these blows, he managed to get up.
At this time, the offender Mr Price stepped forward and, over a relatively short time period, struck the deceased four times with the fishing rod that he was carrying. These blows landed on the outside of the deceased's upper back. At that point in time, Mr Burns must have been leaning forward, bent at about the waist. He was certainly not in an aggressive stance.
A further series of blows were then delivered by Mr James Moore to Mr Burns. Those blows caused the balance of his injuries and caused the deceased to fall to the ground where Mr Moore administered the final blow causing his death. As Mr Moore was inflicting these blows, he was heard to say on two occasions that he was going to kill the deceased.
The blows delivered to the deceased by Mr James Moore were done with significant and severe force. It was a brutal and unremitting assault.
The blow delivered by Ms Michele Moore to the deceased's head was done with moderate force. It was not a "slight tap" on his head as she claimed to investigating police.
The blows delivered to the deceased by Mr Price were delivered with, what I would judge to be, moderate force because of the clear and obvious marks which they left on the deceased's body.
At the conclusion of the assault, the three perpetrators left the scene. Mr Price and Ms Michele Moore left slightly before Mr James Moore. They all walked west up Ulmarra Lane. As they did so, Ms Moore instructed her son, Mr James Moore, to dispose of the mattock handle in an adjoining property. Mr Price did not hear that instruction. The offender, Mr Price, disposed of his fishing rod and a broad-brimmed hat which he was wearing. He also removed his shirt.
Ms Moore then drove all three of them away from the scene of the assault.

Police Investigation

In the course of the police investigation, both Ms Michele Moore and Mr Price gave interviews to the investigators on 30 October 2012. In Ms Michele Moore's case, she gave a second interview on 16 November 2012. I am satisfied that both of the offenders gave a version of the facts which was largely false. Each version was intended to admit that they were at the scene, but to exculpate themselves from any culpable involvement in the death of Mr Burns.

Specific Statutory Considerations

Section 21A of the Crimes (Sentencing Procedure) Act set outs a number of matters to which regard must be had. They are both aggravating and mitigating factors. I will identify those factors referrable to each accused, but only those factors which I regard as relevant.
The principal offence involved the actual use of violence and the actual use of a weapon [6] . Although the use of the weapon by Mr James Moore was an integral part of the offence of murder, I regard these factors as being aggravating matters so far as Ms Michele Moore, and Mr Price are concerned because, in addition to what Mr James Moore was doing, each armed themselves with a weapon and both participated in using violence, and that weapon, in the course of the physical assault which occurred to Mr Burns. Even though their use of their weapons, and their resort to the use of violence, did not cause the death of Mr Burns, their conduct was a clear encouragement of Mr James Moore to do what he did. I regard these as aggravating factors.
The offence of each offender was committed in company with Mr James Moore and each other. That is an aggravating factor [7] .
I am satisfied that although Mr Burns was a squatter in the abandoned house, nevertheless, the offence was committed in the backyard and driveway area of his home. He does not have to have had legal permission to live there for this to be regarded as an aggravating factor. This must be taken into account as an aggravating factor [8] . However, I do not regard it has having any real weight.
Finally, it will be an aggravating factor if the offence was part of a planned criminal activity [9] . I am satisfied that whilst there was no plan to go and kill the deceased, nevertheless it was the intention of Ms Michele Moore that she and the other two males would go and confront the deceased, having each armed themselves with a form of weapon. Mr Price was a knowing participant in the activity described in this general way.
It was obvious to Ms Michele Moore from the time that her son got into the car, that an assault was likely to take place and she willingly participated in enabling that confrontation to occur. I am satisfied that she knew that it was Mr James Moore's intention to inflict grievous bodily harm. After all, as she told the investigating police, she thought that Mr James Moore was going to "bash Mr Burns' brains in". In Ms Michele Moore's case, I am satisfied that this assault occurred in the course of a planned criminal activity. This is an aggravating factor of real weight.
In Mr Price's case, I am not satisfied that he knew that the confrontation was likely to be a violent one at any time before he got out of the car at the scene. In his case, I do not think that any pre-planning is of any significance as an aggravating factor. By the time he realised what was to happen, it was so close to the events, that any notion of pre-planning does not merit being assessed as a significant aggravating factor.
It is necessary to consider the mitigating factors so far as each of the offenders are concerned. It is convenient to do so by addressing them individually for each offender.
Ms Michele Kathleen Moore
It is a mitigating factor if the offence was provoked by the victim [10] . Here, there is no doubt that the offence arose from conduct of both the victim and Mr James Moore. A part of the conduct of Ms Michele Moore, namely her striking Mr Burns in the head, was in immediate retaliation for his initial physical threat to her with the knife. That is a matter relevant to the assessment of the criminality of Ms Michele Moore in this offence, but I would not regard it as a matter of provocation within the meaning of this statutory provision.
It is an important mitigating factor that Ms Michele Moore does not have any significant record of previous convictions [11] . Ms Michele Moore's criminal record was tendered. It consists of a number of minor offences and a minor driving offence. Whilst there is one offence involving violence, that occurred over 10 years ago and in circumstances where it does not appear that anyone was injured, I do not regard her previous criminal history as being a significant record of previous convictions. This is a mitigating factor.
Ms Michele Moore did not suggest that she was entitled to the benefit of being considered to be a person of good character as a mitigating factor [12] . Although her past record is not significant, she cannot be regarded as a person of past good character within the meaning of the statute.
I am persuaded that, having regard to the particular circumstances of this offence, Ms Michele Moore's maturity, her progress since being in custody, and her general attitude to what has occurred, she is unlikely to re-offend. It follows that I am satisfied she has good prospects of rehabilitation.
Where an offender shows remorse by demonstrating that she has accepted responsibility for her actions and has acknowledged the consequences of her actions, then that can amount to a mitigating factor in the sentence imposed [13] .
I accept Ms Michele Moore's evidence that she feels morally responsible for what occurred and, as well, her expressions of regret with respect to what occurred. She has demonstrated her remorse.
These last two matters are mitigating factors to which I will have regard. In the circumstances here, they are factors to which significant weight ought to be attached.
Each of these aggravating and mitigating factors will be taken into account in considering the appropriate sentence to be imposed.

Mr Brendan James Price

I have already dealt with the aggravating factors with respect to Mr Price.
In considering the mitigating factors, it is important to note that a factor of considerable weight in the circumstances of Mr Price, is that prior to this offence he was a person of good character and his only conviction is for a driving offence some years ago. In his case, he is entitled to have the Court place significant weight on these two mitigating factors [14] , which I do.
I am also satisfied that Mr Price is unlikely to re-offend, and has good prospects of rehabilitation. These are important factors to be taken into account, and to which I give significant weight [15] .
Mr Price has not demonstrated remorse in the way required by the statute, namely by accepting responsibility for his actions, and acknowledging any of the consequences of his conduct [16] . He is not entitled to any mitigation in this respect.

Criminality of the Offenders

It is appropriate to make an assessment of the objective criminality involved in each offender's offence. Although this is to be assessed without reference to matters personal to the offender, it will be assessed differently for Ms Michele Moore and Mr Price because they each played different roles in the circumstances of the offence [17] .
In my assessment, Ms Moore's criminality is serious. Knowing of the dispute between her son and the deceased, she armed herself and drove to her son's house in order to collect him and drive him to a confrontation. She knew when she collected him that he was armed with a very substantial weapon. She knew of his intention to cause serious physical injury. She continued to drive him to the scene of the confrontation. Upon arrival she was the first to engage in a verbal confrontation with the deceased and, at an early part during the assault, struck him on the head with a hammer. She remained at the scene in close proximity to what was occurring. Then, as she and the others left together, she advised or instructed her son to dispose of the murder weapon and then drove him from the scene of the crime.
The fact is that Ms Michele Moore is Mr James Moore's mother. They no doubt had a strained relationship. But it was to her that he turned when needing help and advice. Rather than counselling him to stay away from the dispute, she encouraged, and materially assisted him, to go to the scene and engage in an altercation with Mr Burns, knowing that her son was armed with a weapon capable of inflicting serious physical injury. She then helped him to try and cover up what occurred by disposing of the murder weapon and driving him from the scene of the crime.
On any view, this was extensive encouragement and assistance given by Ms Michele Moore to her son. I regard the objective criminality of her participation in this offence as an aider and abetter as falling at the upper end of the mid‑range of seriousness of objective criminality.
Mr Price took a lesser role in what was occurring. He was not directly related to Mr James Moore except by his marriage to Ms Michele Moore. He certainly went along in the motor vehicle. The weapon with which he was armed was unlikely, of itself, to cause any serious physical injury. Although I am satisfied that it must have been obvious to Mr Price, at the time they arrived at the scene of the confrontation, that Mr James Moore intended to inflict really serious physical injury on Mr Burns from the fact that he carried the mattock handle from the car and confronted Mr Burns, I am not satisfied that Mr Price played nearly as significant a role as his wife did by way of encouraging or assisting Mr James Moore. There is no evidence that he said anything to Mr James Moore to encourage him. No doubt, his close presence whilst armed with a fishing rod, and his use of the fishing rod on at least four separate occasions to hit Mr Burns, encouraged Mr James Moore to keep going with his assault.
There is no suggestion that Mr Price, other than by disposing of his own implement, the fishing rod, and his hat, did anything to assist Mr James Moore after the event with the disposal of his weapon and other material.
In my assessment, the criminality of Mr Price is lower than that of Ms Michele Moore, and is at the lower end of the mid-range of seriousness of objective criminality.

Subjective Circumstances of the Offender, Ms Michele Moore

Ms Michele Moore is now 51 years old. She was 49 when the deceased died.
She was educated to the age of 16, and then left school to work. She moved with her parents from Sydney to Coffs Harbour many years ago. She has two sisters. Her mother is alive. A brother has died. There is no evidence of anything exceptional in her upbringing.
She married at a relatively young age, and has two children. As well as her son, she has a daughter. She has been married on a number of occasions, most recently to Mr Price.
In 1991 she was involved in a serious motor vehicle accident. The physical consequences meant that she has been largely unable to work since them.
There is no suggestion that as an adult she has had any drug or alcohol issues, nor that she has suffered, or now suffers, from any diagnosable mental health condition.

Subjective Circumstances of the Offender, Mr Price

Mr Price will shortly turn 44 years old. He was 41 at the time of the events for which he has been convicted.
He was born in country New South Wales. He is the youngest of five children. He has three elder brothers and one elder sister. His parents separated when he was very young. He was educated to school certificate level and left when he was 16.
He has lived in Coffs Harbour for many years, and has generally been employed throughout that period. He has been a heavy drinker over time and has been recently diagnosed as having a Substance Use Disorder. Although he may have had episodes of depression in the past, his present condition does not warrant a psychiatric diagnosis of depression. There is no evidence of any personality disorder.

Special Circumstances

I am satisfied, having regard to the nature of the offence, the likely prospects of rehabilitation, and the fact that each of the offenders are unlikely to commit further offences, that it is appropriate that I should make a finding of special circumstances in each case as the law permits [18] , and as was submitted by each of their counsel.
In my view, each offender will be much assisted to reintegrate into the community by a longer than usual non-parole period to ensure that they do not relapse from the promise, of which I am persuaded, of their likely good prospects of rehabilitation.

Sentence

In considering the appropriate sentence to be imposed on each of Ms Michele Moore and Mr Price, the commencement point is the nature of the offence with which they have been convicted. Murder involves the criminal taking of a human life. Whatever one might think, and I express no view about this, of Mr Burns and his lifestyle, he was entitled to continue living his life as he saw fit. Murder is a violation of the sanctity of human life which, in my assessment, is at the heart of a civilised community.
Murder necessarily, as one of the most serious crimes which is proscribed by law, warrants a substantial sentence. People who engage in this offence must be punished. The public must be deterred from engaging in conduct which involves the unlawful taking of human life. The community would be offended by an overly lenient sentence imposed by the Courts on an offender guilty of murder. But, it is also necessary that I keep in mind that neither of these two offenders delivered the blow which took the life of Mr Burns. They merely encouraged or assisted that conduct on the part of Mr James Moore.
The conflict between Mr James Moore and Mr Burns was minor. It was transient. It required the exercise of mature judgment. What was called for in these circumstances was not to take Mr James Moore to the scene whilst he, Ms Michele Moore and Mr Price were armed but, rather, to stay well away from the scene and to enable time to pass and tempers to cool.
In Ms Moore's case I have had regard to all of the subjective background which I have described above. I have had regard to the aggravating and mitigating factors which I am obliged to consider. She was not young and immature like her son, Mr James Moore, was. She was the one person who could, by her mature conduct, have discouraged Mr James Moore from engaging in this violent assault. On the contrary, she encouraged and assisted him in his conduct. Then she went to some lengths, including lying to the police, to cover up the true extent of the crime, and particularly, her involvement in it.
I determine the appropriate overall sentence to be one of 22 years imprisonment. Of that sentence, I determine that Ms Michele Moore must spend 15 years in jail before being eligible for parole.
In the case of Mr Price, I am satisfied that his conduct reflected misplaced loyalty to Ms Michele Moore and lack of judgment on his part. Nevertheless, he knew what was likely to happen when he arrived at the scene. He went along with it and he participated in it. Then he tried to cover up his involvement. I have taken into account the subjective factors relevant to Mr Price and, in particular, his previous good character. I determine that an appropriate overall sentence for Mr Price is 18 years imprisonment. Of that sentence, I determine that Mr Price must spend 12 years in jail before being eligible for parole.

Commencement Date

The sentences should commence on the day that each of Ms Moore and Mr Price were arrested and taken into custody, namely 22 November 2012.

Offence of Serious Personal Violence

I am required to warn each of Ms Michele Moore and Mr Price, 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 each of them has been convicted, and for which each of them is about to be formally sentenced.
At some future point in time, an application may be made that, notwithstanding the completion of their sentence, they nevertheless ought be detained in ongoing custody, or else be the subject of an extended supervision order impacting upon their liberty.

Sentence

Ms Michele Kathleen Moore, I sentence you to the following term of imprisonment: 1. A non-parole period of 15 years commencing on 22 November 2012, and concluding on 21 November 2027; 2. A balance of term of 7 years commencing on 22 November 2027 and concluding on 21 November 2034; 3. You will not be eligible to be released before the expiry of your non‑parole period.
Mr Brendan James Price, I sentence you to the following term of imprisonment: 1. A non-parole period of 12 years commencing on 22 November 2012, and concluding on 21 November 2024; 2. A balance of term of 6 years commencing on 22 November 2024 and concluding on 21 November 2030; 3. You will not be eligible to be released before the expiry of your non‑parole period.

Endnotes

Muldrock v The Queen [2001] HCA 39; (2001) 244 CLR 120 at [27]
See generally R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J; Muldrock at [28]
Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465 at 472 per Mason CJ, (Brennan, Dawson and Toohey JJ agreeing).
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617 per Dawson J, (Gibbs CJ and Wilson J agreeing).
s 21A(2)(b) and (c) Crimes (Sentencing Procedure) Act
s 21A(2)(e) Crimes (Sentencing Procedure) Act
s 21A(2)(eb) Crimes (Sentencing Procedure) Act
s 21A(2)(n) Crimes (Sentencing Procedure) Act
S 21A(3)(c) Crimes (Sentencing Procedure) Act
s 21A(3)(e) Crimes (Sentencing Procedure) Act
s 21A(3)(f) Crimes (Sentencing Procedure) Act
s 21A(3)(i) Crimes (Sentencing Procedure) Act
s 21A(3)(e)(f) Crimes (Sentencing Procedure) Act
s 21A(3)(g)(h) Crimes (Sentencing Procedure) Act
s 21A(3)(i) Crimes (Sentencing Procedure) Act
Muldrock at [27]
s 44(2) Crimes (Sentencing Procedure) Act, DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2015

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