Moore v R [2024] NSWCCA 115

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moore v R [2024] NSWCCA 115 Hearing dates: 31 May 2024 Date of orders: 8 July 2024 Decision date: 08 July 2024 Before: Harrison CJ at CL at [1] Davies J at [2] Sweeney J at [109] Decision: (1) Extend the time for the applicant to seek leave to appeal to 2 April 2024. (2) Grant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against sentence – two charge sets comprising seven counts – assault occasioning actual bodily harm, sexual intercourse and record an intimate image without consent – influence witness, aggravated detain and intentionally choke – where applicant reported traumatic childhood characterised by domestic and sexual violence – where applicant diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits – whether sentencing judge failed to consider mental health and Bugmy factors – where sentencing judge reduced moral culpability by reason of Bugmy factors – where sentencing judge made a finding of special circumstances – ex tempore judgment – sentencing judge is not obliged to refer to every part of a psychological report – no submission about a causal connection between mental health and the offending was made – sentencing judge did not err by giving weight to general and specific deterrence given the applicant's criminal record – no error – ground rejected CRIME – appeals – appeal against sentence – where parties had previously agreed to film their sexual activity – where parties' sexual relationship involved dominating and degrading behaviour – applicant filmed sexual activity whilst the complainant was unconscious – whether sentencing judge erred in finding of objective seriousness – whether nature of the parties' sexual relationship ought to have reduced objective seriousness – sentencing judge's findings of fact accorded entirely with agreed statement of facts – agreement to film sexual activity did not extend to sexual intercourse whilst the complaint was unconscious – sentencing judge did not err by finding that the sexual intercourse was accompanied by degrading and violent acts – determination open to his Honour – ground rejected CRIME – appeals – appeal against sentence – manifest excess – where applicant contends indicative sentences for sexual intercourse without consent were excessive – challenge can only be made to the aggregate sentence – indicative sentences open to sentencing judge – comparable cases of limited utility given number of offences and seriousness of present offending – offending involved serious domestic violence over a six month period – sentence not plainly unjust – ground rejected – sentence appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) ss 37, 59, 61I, 86, 91P, 195, 323, 324 Drug Misuse and Trafficking Act 1985 (NSW) ss 13, 21 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Bussey v R [2020] NSWCCA 280 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Harper v R [2022] NSWCCA 211 Horne v R [2023] NSWCCA 276 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Lloyd v R [2022] NSWCCA 18 Mattiussi v R [2023] NSWCCA 289 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pender v R [2023] NSWCCA 291 R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Texts Cited: Nil Category: Principal judgment Parties: Michael Moore (Applicant) The King (Respondent) Representation: Counsel: R Rodger (Applicant) E Wilkins SC (Respondent)