R v BH [2009] NSWSC 358

New South Wales Supreme Court

CITATION : R v BH [2009] NSWSC 358

HEARING DATE(S) : 3 April 2009

JUDGMENT DATE : 7 May 2009

JUDGMENT OF : Hidden J

DECISION : Imprisonment for 17 years, NPP 13 years, from 9 October 2007.

CATCHWORDS : CRIMINAL LAW - sentence - plea of guilty - felony murder - juvenile offender

LEGISLATION CITED : Children (Criminal Proceedings) Act 1987

CATEGORY : Principal judgment

PARTIES : Regina BH

FILE NUMBER(S) : SC 2008/20206

COUNSEL : K McKay (Crown) N Steel (BH)

SOLICITORS : N Simonsen (ODPP) J Boulos (LAC)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

7 May 2009

2008/20206 Regina v BH

REMARKS ON SENTENCE 1 HIS HONOUR: The offender who stands for sentence was a juvenile at the time of the offence and, accordingly, his name must not be published. He has pleaded guilty to the murder of Mitchell Moseley in the Sydney CBD in the early hours of Wednesday, 6 December 2006. He entered that plea in the Local Court and maintained it on arraignment in this Court.

Facts 2 The agreed facts, which need not be recited in all their detail, are these. The deceased, Mr Moseley, was a 23 year old homeless man, who frequently slept in Town Hall Square outside what was then the auditorium of Saint Andrew's Cathedral School. It was there that his body was found in the morning of 6 December 2006. Police who attended the scene observed him to have a severe wound to the left side of his face, which had bled profusely. Lying near the body was a large wooden garden stake, which was blood stained. Police inquiries, including the examination of CCTV and security surveillance footage from the school and the surrounding area, established the events leading to the killing. 3 At about 8 pm on the Tuesday, 5 December, Mr Moseley had attended Bar Ace in George Street, where he remained for some time playing poker machines. He received two payouts, totalling over $900. At about 11pm he was escorted from the bar because he was intoxicated. 4 He then went to the nearby Maloney's Hotel, also in George Street. He remained there until close to 4am, again playing poker machines. The offender entered the hotel during that period, leaving and returning on several occasions. On two of those occasions he spoke to Mr Moseley, whose success on the poker machines was continuing. While the offender was present at the hotel, he received two payouts totalling $1100. 5 A little before 4am, the offender left the hotel and went to the entrance of a nearby McDonalds restaurant. Mr Moseley also left the hotel and began to walk towards his usual sleeping place outside the Cathedral school. The offender followed him. 6 There is no eyewitness account of the killing. Nor did the offender make any admissions to investigating police, and what occurred was not caught by any security camera. What is clear, however, is that the offender obtained the garden stake from a tree in Bathurst Street near the school. He struck Mr Moseley with it, wounding him fatally, and robbed him of an unspecified amount of money. Another homeless man who had been sleeping in the area told police that Mr Moseley woke him in the small hours of 6 December and told him that he had won $900 on the poker machines. He said that he saw Mr Moseley fall asleep, that he also went to sleep, and that when he awoke Mr Moseley was dead.