R v Moors [1992] QCA 243

Court of Appeal (Qld)|1992-08-11|Before: Pincus J, Davies J

IN THE COURT OF APPEAL [1992] QCA 243

The applicant was convicted of manslaughter on 23 April 1992 and on 12 June 1992 was sentenced to 11 years' imprisonment. He seeks leave to appeal against that sentence on the ground that it is manifestly excessive. He is 35 years of age and has two previous criminal convictions, one on 10 December 1988 for possession of a dangerous drug for which he was fined $250, and one on 19 October 1989 of assault occasioning bodily harm, involving his former de facto wife, for which he received a good behaviour bond for two years.

The SKS assault rifle is a .762 high powered semi-automatic military assault rifle which fires bullets with full metal jackets capable of penetrating metal. It is a rifle designed for killing people or large animals at quite substantial distances.

Having obtained the rifle, the applicant secreted himself in the bush near the vehicle and waited for the men to return to it. They did so and as the vehicle drove away the applicant, aiming at the tyres of the vehicle, fired two shots, one at least of which shot out a tyre. The applicant then fired a volley of at least a further twelve shots at the vehicle. He claimed to be quite a good shot. One of them pierced the metal of the truck and killed one of its occupants. When it was fired the vehicle was still less than fifty metres away. It was then outside the applicant's property.

Counsel for the applicant does not suggest that the sentence imposed was not within the range for offences of this kind. Indeed, he could not do so. The sentence is well within the appropriate range. There was no suggestion that there was any immediate emergency or that the occupants of the vehicle were threatening the applicant in any way.

Counsel for the applicant however said that his Honour failed to have sufficient regard to mitigating factors, the main ones being his remorse and the three months which the applicant spent in custody prior to his trial.

His Honour in fact gave credit in the sentence which he imposed of one year in respect of the time which the applicant had spent in custody and it appears from his Honour's sentencing remarks that he took into account remorse shown by the applicant.

It was submitted that, in the circumstances, a recommendation should have been made for early parole. We do not agree. Indeed, his Honour was concerned that the pre-sentence report and the psychiatric report of a Dr Rigano referred to the possibility of similar over-reaction in the future, a matter which his Honour thought might require the parole authorities who eventually had to consider the applicant's parole to do so with more than usual care.

The sentence was not manifestly excessive. The application is refused.

MINUTES OF ORDER:Application for leave to appeal refused

CATCHWORDS:CRIMINAL LAW - SENTENCE - applicant sentenced to 11 years for manslaughter - whether manifestly excessive given applicant 35 with 2 minor prior offences - applicant fired semi-automatic rifle at vehicle intruding on property - whether 3 months in custody and remorse of applicant taken into account

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Reasons for Judgment of the Court delivered the 11th day of August 1992

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