MOORE, David Albert v R [2008] NSWCCA 143

New South Wales Court of Criminal Appeal

CITATION: MOORE, David Albert v R [2008] NSWCCA 143

HEARING DATE(S): 10 March 2008

JUDGMENT DATE: 26 June 2008

JUDGMENT OF: Giles JA at 1; Adams J at 2; Latham J at 3

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed

CATCHWORDS: SENTENCE APPEAL - maliciously inflict GBH with intent to inflict GBH - assessment of objective gravity of the offence as within the mid-range - departure from the standard non parole period after plea of guilty - serious, permanent and disabling injuries suffered by victim - no lesser sentence warranted at law.

R v Gallagher [2007] NSWCCA 296 CASES CITED : R v Way (2004) 60 NSWLR 168 R v Ohar (2004) NSWCCA 83 R v Pellew (2004) NSWCCA 434

PARTIES: David Albert Moore - Applicant Regina - Respondent

FILE NUMBER(S): CCA 2007/2901

COUNSEL: H Dhanji - Applicant J Girdham - Respondent

SOLICITORS: S O'Connor - Applicant S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/41/0043

LOWER COURT JUDICIAL OFFICER: JLA Bennett SC DCJ

LOWER COURT DATE OF DECISION: 9 March 2007

IN THE COURT OF CRIMINAL APPEAL 2007/2901

GILES JA ADAMS J LATHAM J

26 JUNE 2008 DAVID ALBERT MOORE v REGINA Judgment 1 GILES JA : I agree with Latham J. 2 ADAMS J : I agree with the judgment of Latham J but wish to add some additional comments. Any intentional infliction of grievous bodily harm that leaves serious permanent injuries should be regarded as at least well within the mid-range of objective seriousness and the injury that was inflicted on and continues to be suffered by the appellant's victim, as set out in Latham J's judgment, in my respectful view place the objective seriousness of the appellant's offence significantly above the mid-range. It may be that the sentencing judge's analysis reveals some degree of inconsistency but this is, in the circumstances, insufficient to demonstrate an error requiring appellate intervention. Even if I were of the opinion that there was an error requiring this Court to consider re-sentencing, I agree with Latham J that the sentence imposed was the least that could be justified and that no lesser sentence is warranted in law. 3 LATHAM J : The applicant, David Albert Moore, seeks leave to appeal against the sentence imposed upon him on 9 March 2007, following a plea of guilty to Maliciously Inflict Grievous Bodily Harm with Intent to Inflict Grievous Bodily Harm. The offence carries a maximum penalty of 25 years imprisonment and bears a standard non-parole period of 7 years. The plea was accepted in satisfaction of an indictment, the principal charge of which was Cause Grievous Bodily Harm with Intent to Murder. 4 The applicant was sentenced to a non-parole period of 6 years, with a balance of term of 3 years. 5 The sentencing proceedings extended over four days, largely because of a dispute concerning whether or not certain injuries to the applicant's abdomen were inflicted by the victim or self-inflicted. That dispute was resolved adversely to the applicant. No issue is taken with that finding in this application, or with the allocation of a 10% discount for the applicant's plea. 6 The applicant's submissions on the appeal are the product of a mathematical analysis of the sentencing exercise, which (it was said) reveal error. The submissions did not go so far as to assert that the sentence fell outside the range of the judge's legitimate sentencing discretion, having regard to the objective and subjective circumstances of the case. The facts found by the judge for the purpose of sentencing (which are accepted), and the applicant's history, demonstrate that such a submission could not be sustained. The application fails on this basis, even if error is established.