Moore v R

HOEBEN CJ at CL:

On 30 May 2015 the jury delivered a verdict of guilty of murder with respect to both offenders.

On 7 August 2015 Garling J sentenced the applicant and Mr Price as follows:

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon her.

In summary the Crown case was that on 28 October 2012 the applicant, Mr Price and James Moore (the applicant’s son) confronted, Dennis Burns (the deceased), in response to a dispute between James Moore and him over an increase in the price of the cannabis that James Moore was supplying him.

During the course of the confrontation James Moore inflicted a number of blows, including the fatal blow to the deceased’s head, using a wooden mattock handle. This caused a skull fracture and subdural haematoma. The applicant struck the deceased in the head with a hammer and Mr Price attacked the deceased using a fishing rod. Both offenders encouraged and assisted James Moore in his assault on the deceased.

James Moore was 24 years old at the time he killed the deceased. The deceased was aged 47 when he died. They had known each other for some time and were associated in the world of illicit drugs. James Moore from time to time supplied cannabis to the deceased.

The deceased was living as a squatter in a house in Collingwood Street, Coffs Harbour which had been abandoned by its owners. On the morning of 28 October 2012 James Moore visited a drug supplier in Woolgoolga, a town to the north of Coffs Harbour. James Moore told the deceased that he would purchase drugs for him but that there would be an increase in the price of the cannabis. The deceased was offended by the price increase and a dispute arose between them.

Upon his return from visiting the drug dealer, communication between James Moore and the deceased continued but its tone degenerated significantly. The tone, largely on the part of the deceased, became increasingly aggressive, offensive and tended to be incoherent. At one point the deceased threatened to sexually assault James Moore’s heavily pregnant partner.

At about 3.00pm James Moore, apparently, in an attempt to calm things, sent the deceased a text which said:

At around that time, James Moore contacted the applicant, who was then at her home with Mr Price. They discussed what was going on, and either James Moore sought her assistance, or she offered to assist him. As a result of that contact, the applicant made contact with the deceased via a text message which read:

It was clearly the applicant’s intention to involve herself in the dispute between the deceased and James Moore. She wanted to make it appear that James Moore had the support of both herself and Mr Price, and that the deceased should know that he was confronting all of the members of the family and not just James Moore.

After a further discussion of the matter with James Moore over the telephone, the applicant sent a text message to the deceased which, (omitting profanities) read”

A little later, at 3.32pm, James Moore sent the applicant a text saying:

At 4.13pm, when the applicant and Mr Price were driving from their home to collect him from his home, James Moore sent a final text message to the applicant saying:

The applicant and Mr Price lived about a six minute drive from James Moore’s house. It was about an eight minute drive from his house to where the deceased lived.

The applicant, upset over the way in which the deceased was dealing with James Moore, and apparently concerned for his well-being, decided that she would take him to confront the deceased in order to resolve the escalating dispute.

The applicant armed herself with a hobby hammer before leaving the house. Mr Price got into the car. He apparently did not see the hammer. There was a fishing rod in the car which Mr Price later used to attack the deceased. They drove from their house to collect James Moore. When they arrived at his house at about 4.15pm, he was waiting for them and was holding a wooden mattock handle. This implement was solid and a little under 1m in length. Both the applicant and Mr Price could see the mattock handle being carried by James Moore to the car. He got into the car and the three of them drove together to the deceased’s house.

Mr Price did not know the precise content of the text messages, nor the contents of the telephone calls between the applicant and James Moore. He did, however, have some knowledge of what was going on. He knew, in general terms, that there was a dispute between the deceased 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 to confront the deceased and that James Moore was armed with the wooden mattock handle.

When he got out of the car at the deceased’s house, Mr Price took the fishing rod with him. By that time he knew that the proposed confrontation would likely be a violent one, and he armed himself with an available weapon.

The applicant knew at an earlier time namely, when she picked James Moore up from his house, and while she was driving him to the deceased’s house, that he intended to assault the deceased and, having regard to the nature of the weapon which he was carrying, that any assault would be likely to cause serious physical injury. The applicant would have been aware that one blow of the mattock handle wielded by a much younger and stronger man against an older man was likely to cause serious physical injury. This must have been obvious to both the applicant and Mr Price.

When they arrived at the deceased’s house, there was a confrontation. Each of the participants was armed in one way or another. James Moore had the wooden mattock handle, the applicant had the hobby hammer and Mr Price was carrying a fishing rod which was 1.75m long. The deceased was armed with a number of knives.

The initial confrontation was between the applicant and the deceased. She was yelling very aggressively at him 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 kind of physical shoving between them. The deceased produced his knife or knives, and threatened the applicant 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 the applicant was initially threatened by the deceased, both James Moore and Mr Price stepped forward and threatened to hit him. At a point in time early in the course of the confrontation, and after an initial blow had been delivered by James Moore, the applicant 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 the applicant then dropped.

Shortly afterwards, when the deceased produced another knife, James Moore struck him 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 forcing the deceased to his knees. Although injured by these blows, he managed to get up.

At this time, Mr Price stepped forward and, over a relatively short time, 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, the deceased must have been leaning forward, bent at about the waist. He was not in an aggressive stance.

A further series of blows were then delivered by James Moore to the deceased. These blows caused the balance of his injuries and caused the deceased to fall to the ground where James Moore administered the final blow causing his death. As James 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 James Moore were done with significant and severe force. It was a brutal and unremitting assault.

The blow delivered by the applicant to the deceased’s head was done with moderate force. It was not a “slight tap”.

The blows delivered to the deceased by Mr Price were delivered with 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 the applicant left slightly before James Moore. They all walked west up Ulmarra Lane. As they did so, the applicant instructed James Moore to dispose of the mattock handle in an adjoining property. Mr Price disposed of his fishing rod and a broad-brimmed hat which he was wearing. The applicant then drove both of them from the scene of the assault.

In the course of police investigations, both the applicant and Mr Price gave interviews to the investigators on 30 October 2012. On 16 November 2012 the applicant gave a second interview. In those interviews both offenders gave a version of the facts which was largely false. Each version accepted that they were at the scene but was designed to exculpate themselves from any culpable involvement in the death of the deceased.

Garling J specifically rejected the applicant’s evidence that she was attempting to defuse the situation in order to achieve a peaceful outcome. His Honour rejected that proposition on the basis that 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 also armed. His Honour found that at no time after she arrived at the deceased’s house did the applicant do anything which remotely suggested that she went there to attempt to make peace with him.

His Honour then had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and identified what he regarded as relevant aggravating and mitigating factors.

His Honour found that the murder involved the actual use of violence and the actual use of a weapon by James Moore. His Honour regarded those factors as aggravating matters insofar as the applicant and Mr Price were concerned because in addition to what James Moore was doing, each armed themselves with a weapon and both used violence and that weapon in the course of the physical assault which occurred to the deceased. His Honour found that even though the use of their weapons and their resort to the use of violence did not cause the death of the deceased, their conduct was a clear encouragement to James Moore to do what he did. His Honour regarded those matters as aggravating factors.

His Honour found that because each offence was committed in company, this was also an aggravating factor. His Honour found that although the deceased was a squatter, the offence was committed in a backyard and driveway area of his home. Although his Honour found that this was an aggravating factor, he did not give it any real weight in the sentencing process.

In relation to planning, his Honour set out his findings as follows:

His Honour found that Mr Price did not know that the confrontation was likely to be a violent one at any time before he got out of the car at the scene. His Honour found that there was no pre-planning of any significance associated with his actions. His Honour found that by the time Mr Price realised what was going to happen, it was so close to the event that any notion of pre-planning did not merit being assessed as a significant aggravating factor.

His Honour next took into account mitigating factors.

His Honour found that the offending was provoked by the deceased in that part of the conduct of the applicant, namely striking the deceased in the head, was an immediate retaliation for his initial physical threat to her with a knife. His Honour noted, however, that it did not amount to provocation as set out in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999.

His Honour found as an important mitigating factor that the applicant did not have any significant record of previous convictions. Nevertheless, he was not prepared to find that she was a person of past good character. His Honour did find that because of the applicant’s maturity, her progress since going into custody and her general attitude to what had occurred that she was unlikely to re-offend. His Honour found that the applicant had good prospects of rehabilitation.

His Honour accepted that the applicant felt morally responsible for what occurred and that her expressions of regret were genuine. In that regard, his Honour found that the applicant had accepted responsibility for her actions and had acknowledged their consequences. These were taken into account by him as mitigating factors.

In relation to Mr Price, his Honour found that before this offence he was a person of good character and that his only conviction was for a driving offence some years before. His Honour regarded that and the absence of any previous convictions as mitigating factors. His Honour was satisfied that Mr Price was unlikely to re-offend and had good prospects of rehabilitation. His Honour regarded those as important factors to be taken into account and to which he gave significant weight.

On the other hand, his Honour was not satisfied that Mr Price had demonstrated remorse by accepting responsibility for his actions and acknowledging any of the consequences of his conduct.

His Honour assessed the objective seriousness of the offending. His Honour assessed the applicant’s criminality as serious. His Honour said:

In relation to Mr Price his Honour made the following assessment:

In relation to their subjective cases, his Honour noted that the applicant was aged 51 at the time of sentence and was 49 when the offence occurred. She was educated to the age of 16 and then left school to work. She had two sisters and a brother who had died. Her mother was alive. She married at a relatively young age and had two children. As well as James Moore, she had a daughter. She had been married on a number of occasions, most recently to Mr Price. There was no evidence of anything exceptional in her upbringing.

In 1991 she was involved in a serious motor vehicle accident of which the physical consequences were that she had been largely unable to work since then. There was no suggestion that as an adult she had any drug or alcohol issues nor that she suffered from any diagnosable mental health condition.

The subjective circumstances of Mr Price were that he was 41 at the time of the offence and had almost turned 44 at the time of sentence. He was the youngest of five children and had three older brothers and one older sister. His parents separated when he was young. He was educated to school certificate level and left when he was aged 16. He had lived in Coffs Harbour for many years and had generally been employed throughout the period. He had been a heavy drinker over time and was diagnosed not long before the sentence proceedings as having a Substance Use Disorder. There was no psychiatric diagnosis or evidence of a personality disorder.

His Honour made a finding of special circumstances in relation to both the applicant and Mr Price.

In relation to the sentences imposed, his Honour noted the seriousness of the offence of murder and the sanctity of human life. His Honour emphasised the importance of general deterrence when sentencing for such an offence.

His Honour particularly took into account that the conflict between James Moore and the deceased was minor. It was transient. It required the exercise of mature judgment. What was called for in those circumstances was not to take James Moore to the scene while he, the applicant and Mr Price were armed but rather to stay well away from the scene and to enable time to pass and tempers to cool. His Honour noted that the applicant was not young and immature like her son. She was the one person who could, by her mature conduct, have discouraged James Moore from engaging in the violent assault. In contrast, she encouraged and assisted him in his criminal conduct. She then went to some lengths, including lying to the police to cover up the true extent of the crime, and particularly her involvement in it.

In the case of Mr Price, his Honour was satisfied that his conduct reflected misplaced loyalty to the applicant and a lack of judgment on his part. His Honour also noted that he knew what was likely to happen when he arrived at the scene, that he went along with it and participated in it. He also tried to cover up his involvement.

The applicant submitted that his Honour’s finding that her objective criminality fell at the upper end of mid-range placed her criminality at too high a level. The applicant submitted that his Honour was also in error in finding that there was a level of preplanning that amounted to a matter of significant aggravation of the offence.

The applicant submitted that she did not start the conflict, even though she did nothing to stop it. She only drove James Moore a short distance to the deceased’s residence, being a trip of some eight minutes. She submitted that the assistance which she gave to James Moore was not “extensive” consisting of some encouragement, driving a brief distance to the deceased’s home and then driving away again.

The applicant accepted that the finding as to her objective criminality was a discretionary one and thus the principles in House v R [1936] HCA 40; 55 CLR 499 applied. In support of this ground, the applicant relied upon his Honour’s finding of “pre-planning” as a significant aggravating factor pursuant to s 21A(2)(n) of the Sentencing Procedure Act. While the applicant accepted that there was some planning in the offence, this was not “planned or organised criminal activity” as meant by the section.

On that issue, the applicant relied upon the analysis of Howie J (with whom Simpson and Buddin JJ agreed) in Fahs v Regina [2007] NSWCCA 26 where his Honour said:

The applicant submitted that the finding of “pre-planning” was a major factor in the assessment by the sentencing judge that the applicant’s criminality was at the upper end of mid-range. The applicant submitted that it was the major point of differentiation relied upon by his Honour to impose different sentences between her and Mr Price.

The characterisation of the objective seriousness of an offence is classically within the role of the sentencing judge and as such is a determination with which this Court will be slow to intervene (Mulato v R [2006] NSWCCA 282; R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51]).

The applicant was sentenced on the basis that she aided and abetted James Moore in the murder of the deceased. The basis for liability of secondary participants was set out in Giorgianni v The Queen [1985] HCA 29;156 CLR 473 by Wilson, Deane and Dawson JJ (at [19]):

There was ample evidence upon which the sentencing judge could base the conclusion that the objective criminality of the applicant’s actions was at the upper end of the mid-range of seriousness. What is apparent from the sequence of events is that from the time she learned of the conflict between the deceased and James Moore, right up until the group fled from the scene of the offence, the applicant actively encouraged and assisted James Moore to confront the deceased despite knowing that her son was armed, was an extremely violent man and that he intended to assault the deceased.

Fundamental to the applicant’s offending was the relationship between her and James Moore. He was her son and obviously looked to her in these circumstances for advice. The importance of the part played by her was succinctly summarised by his Honour when he noted that the dispute was minor, was transient and it required the exercise of mature judgment. What was called for was not to take her son to the deceased’s home while he and she were armed but to stay well away. As his Honour said:

It follows that this aspect of the first ground of appeal has not been made out.

Where the applicant is on stronger ground is in relation to his Honour’s finding that the level of planning was “an aggravating factor of real weight” (ROS [67]).

The Crown sought to explain this finding by reference to what was said by Basten JA (R A Hulme and Adamson JJ agreeing) in Moore v R [2016] NSWCCA 185. There, in relation to the same facts, the sentencing judge found that the level of planning was “an aggravating factor”. Basten JA while finding error noted that the error was “immaterial”. His Honour said:

Had his Honour restricted his finding to the level of planning being “an aggravating factor” the analysis of Basten JA would produce the same result in this appeal as occurred in the sentence appeal by James Moore. In this case, however, his Honour went further and found that the level of planning was “an aggravating factor of real weight”. In those circumstances it cannot be said that the only error is the statutory classification and that the error was immaterial. Clearly, his Honour took it into account as a significant matter. On this issue, error has been made out in relation to Ground of Appeal 1.

The applicant submitted that when taken as a whole, although she and Mr Price did different things at different times, given that they were sentenced as aiders and abetters of James Moore, there was no relevant distinction between them in terms of objective criminality. The applicant submitted that the real question is whether, taken as a whole, the differences between their offending was such as to warrant a difference in the ultimate sentence.

The applicant submitted that the observation by Mr Price of James Moore entering the vehicle carrying the mattock handle gave him the same level of notice of an impending confrontation as she had. The applicant submitted that even though their actions at the deceased’s house were different, they were of the same kind and did not involve any additional criminality. The applicant submitted that at the time Mr Price intervened and attacked the deceased, the deceased had already been significantly disabled by the blows struck by James Moore.

The applicant relied on the finding by the sentencing judge that there was no evidence of contrition or remorse on the part of Mr Price. The applicant submitted that too much weight had been given by the sentencing judge to the relationship between her and James Moore which did not justify the disparity in their sentences.

The focus of the applicant’s submissions under this ground was on a comparison between her actions and those of Mr Price. Fundamental to the ground of appeal, is the proposition that although their actions were different, the level of criminality was generally the same and that accordingly, the difference in sentences was not justified. This fails to properly acknowledge the relationship between the applicant and James Moore and the inflammatory role played by the applicant in the offending which was more significant than her actions.

From the moment of her involvement in the dispute between James Moore and the deceased, the applicant sought to escalate the level of conflict. Her text messages could only be regarded as provocative. While we do not know the content of the discussions between the applicant and James Moore before she decided to drive him to the deceased’s residence, some parts can be safely inferred. From the fact that she armed herself before leaving home and was apparently not surprised when she observed James Moore to be armed, they had already formed the intention to inflict violence upon the deceased. Her presence and encouragement, both by word and deed, served to “maintain the rage” so far as James Moore’s feelings towards the deceased were concerned. By contrast, Mr Price was there as a result of a “misplaced sense of loyalty” to the applicant. Other than his presence, there was no other encouragement by him of the violent confrontation which subsequently eventuated.

One of the most significant differences between the conduct of the applicant and Mr Price can be seen in the early stages of the confrontation. Instead of trying to defuse the situation, as she asserted in her evidence, it was the applicant who commenced shouting at the deceased and was “in his face”. Any chance of a peaceful outcome was almost certainly lost at that point in time.

Accordingly, there was a clear distinction between the part played by the applicant and that of Mr Price in the death of the deceased. This was appropriately reflected in the different sentences imposed by his Honour on them. This ground of appeal has not been made out.

Because error has been disclosed, as set out in the discussion of Ground of Appeal 1, consideration of the application of s 6(3) of the Criminal Appeal Act 1912 is relevant. That section relevantly provides:

In considering the section, it is necessary to take into account events which have occurred since the sentence was imposed. In that regard, the Court had before it an affidavit of the applicant, dated 22 November 2016. That affidavit indicated that apart from the inevitable hardship of imprisonment, the applicant was continuing to make progress in her rehabilitation as was noted by the sentencing judge in his remarks (see [41] hereof). That is a matter which I have taken into account.

None of the factual findings made by his Honour (except in relation to the issue of planning) have been challenged in the appeal. His Honour’s findings, therefore, can be taken into account by me when forming my own view as to the appropriate sentence to be imposed on the applicant.

I have already set out in some detail my assessment of the objective seriousness of the applicant’s offending in the discussion of both grounds of appeal. I have concluded on the basis of that analysis that the objective criminality of the applicant arising from her participation in this offence as an aider and abetter of James Moore is above the mid-range of objective seriousness. I consider that the conduct of the applicant in the early stages of the confrontation operated as a catalyst for the outbreak of violence which subsequently occurred. It was the applicant who sought to escalate the conflict by not only provoking the deceased, but by also encouraging James Moore to engage in a physical confrontation with him.

It follows that in the exercise of my independent discretion I would have imposed a longer sentence than that imposed by his Honour. In those circumstances it is not necessary for me to specify that sentence. The effect of my assessment is that no lesser sentence than that imposed by his Honour is warranted at law and accordingly, despite the error which has been identified, the application for leave to appeal against sentence should be dismissed.

The orders which I propose are:

ADAMS J: I agree with the orders proposed by the Chief Judge and generally with his Honour’s reasons but, with respect, take a somewhat different approach to the significance of the learned sentencing Judge’s reference to s 21A(2)(n).

Section 21A does not change the common law of sentencing. The apparent assumption of the resuming clause of sub s 21A(1) that the matters enumerated in sub ss 21A(2) and (3) are not already “permitted or required to be taken into account by the court” when sentencing an offender, is mistaken. Those subsections list matters that have always been regarded as relevant to the assessment of the seriousness of a criminal offence. To take the so-called “aggravating” features, in some cases, they are part of the offence itself, as for example para 21A(2)(b) for an offence involving, whether as an element or not, the use or threatened use of violence. The actual nature of the threat and the actual extent of violence has always been relevant to the assessment of seriousness. (Of course, there should be no double punishment: Pearce v R [1998] HCA 57; 194 CLR 610 – decided, by the way, under the common law.) It is self-evident that merely listing the factor does not make the threat worse or the violence more serious than the actual threat or actual violence warrants. The degree to which it renders the criminality more or less serious is unaffected by the happenstance that the matter is enumerated. To deal with this unnecessary complication, sentencing judges have had to undertake (amongst other pointless exercises) the task of identifying whether, say, the violence was no more than inherently part of the relevant element of the offence and only apply the “aggravating” characterisation to the excess, when all that is necessary or desirable is to assess the seriousness of the offence by reference to the extent of violence actually used or threatened and be done with it.

Subsections 21A(2) and (3) have no utility. This is true of each of the listed factors, whether described as “aggravating” or “mitigating”. Considering paragraph 21A(3)(a) for example, it is obvious that the infliction of slight injury or damage makes the relevant offence less serious than it would be had the injury or damage been considerable, but it is a solecism to describe insubstantial injury or damage as “mitigating”. (I would accept that the good character of an offender, say, or good prospects of rehabilitation could aptly be termed “mitigating” but, again, this is the common law.) Offences involving injury or damage do not imply any particular degree of outcome. (That some offences impose a higher maximum sentence for particular intentions or specified results does not qualify this point.) It is trite that the assessment of seriousness depends, inter alia, on the extent of injury or damage inflicted. The courts managed to appreciate this point without statutory assistance a long time before the enactment of the Sentencing Procedure Act.

As discussed in the NSW Law Reform Commission’s report entitled ‘Review of Sentencing Laws’ dated December 1996 –

The last dot point has been overwhelmingly demonstrated.

In the present appeal, the applicant submits that the learned sentencing Judge erred in describing the offence as being “part of a planned or organised criminal activity” within s 21A(2)(n). The description, in ordinary parlance, was accurate. That his Honour referred to s 21A(2)(n) - which concerns cases where, to use lay language, the crime is part of the offender’s business - is contended to be appealable error. Since his Honour did not find that the offence was part of the applicant’s business, and intended only to convey the lay sense of the phrase, it follows that the seriousness of the offence was not increased in his Honour’s calculus by, supposing (with respect, mistakenly) that s 21A(2)(n) applied. Accordingly, the subsection did not affect his Honour’s assessment of objective seriousness and the reference to it was a technical and irrelevant error of no consequence. This conclusion, with respect, is not affected by the fact that his Honour said the nature and extent of the planning and organisation – carefully detailed in the reasons – was “an aggravating factor of real weight”. Had his Honour not mentioned s 21A(2)(n), the observation would have been plainly correct. In my respectful view, the meaning intended (and conveyed) by his Honour was not changed by the statutory reference and it was not given any greater significance than was warranted. His Honour simply meant, as I apprehend it, that the level of premeditation and planning tended to significantly increase the objective seriousness of the offence. This was plainly correct.

Accordingly (as in RL v R [2015] NSWCCA 106), the reference to s 21A(2)(n) was inconsequential and this aspect of the argument in support of the ground of appeal should be rejected.

R A HULME J: I agree with the reasons of Hoeben CJ at CL for upholding Ground 1 but rejecting Ground 2.

As to resentencing, reasonable minds may differ as to whether the objective seriousness of the offence was above mid-range or, as the primary judge found, "at the upper end of the mid-range". In my view, being mindful of the two statutory guideposts of a maximum penalty of life imprisonment and standard non-parole period of 20 years, even if the finding was simply "in the mid-range" it could not be said that a lesser sentence than 22 years with a non-parole period of 15 years was warranted.

I agree with the orders proposed by Hoeben CJ at CL.