Moss v R [2011] NSWCCA 86

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moss v R [2011] NSWCCA 86 Hearing dates: 1 April 2011 Decision date: 11 April 2011 Before: Simpson J at 1; Davies J at 31; Grove AJ at 32 Decision: (i) Leave to appeal granted; (ii) The appeal allowed to the extent that the order purportedly made with respect to the imposition of parole conditions is set aside; (iii) The appeal is otherwise dismissed. Catchwords: CRIMINAL LAW - sentence - appeal against severity - recklessly causing grievous bodily harm - s 35(2) Crimes Act 1900 - applicant unrepresented - applicant accepted sentence was "fair" - no error established CRIMINAL LAW - sentence - appeal against order for parole conditions imposed - order exceeded power of the Court - order set aside Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Category: Principal judgment Parties: Raymond Stirling Moss (Applicant) Regina (Respondent) Representation: Counsel: In person (Applicant) S Dowling (Respondent) Solicitors: Not applicable (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) File Number(s): 2009/129993 Decision under appeal Date of Decision: 2010-02-19 00:00:00 Before: Murrell DCJ File Number(s): 2009/129993

Judgment 1SIMPSON J : The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 19 February 2010 following his conviction after trial on a charge of recklessly causing grievous bodily harm. Pursuant to s 35(2) of the Crimes Act 1900 (under which the charge was brought) the offence carries a maximum penalty of imprisonment for 10 years, and, pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 4 years. 2Murrell DCJ sentenced the applicant to imprisonment for 3 years and 9 months, made up of a non-parole period of 2 years, commencing on 28 October 2008, and a balance of term of 1 year and 9 months, which will expire on 27 July 2012. The non-parole period expired on 27 October 2010, and the applicant has been released to parole. Nevertheless, he remains subject to the sentence and liable, if he breaches the conditions of his parole, to be re-incarcerated. In sentencing the applicant, her Honour purported to impose certain specified conditions of parole, including not entering the street where the offence was committed (where the applicant had previously, and the victim did live), not to approach or contact the victim, and, on release from custody, to report to the Probation and Parole Service and accept the supervision of that Service for the whole of the parole period. Her Honour stated that this condition included accepting any direction of the Probation and Parole Service "to undertake any drug and alcohol rehabilitation program", specifically "a fulltime live-in" drug and alcohol program. 3The applicant was, in fact, charged with a more serious offence, brought under s 33 of the Crimes Act , of causing grievous bodily harm with intent to do so (a charge which carries a maximum penalty of imprisonment for 25 years) and with the s 35(2) offence as an alternative. He entered a plea of guilty to the s 35(2) offence, but the Crown declined to accept that in satisfaction of the indictment, and the matter went to trial. The jury acquitted the applicant of the principal charge and convicted him of the s 35(2) offence.