Moore v R [2018] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moore v R [2018] NSWCCA 26 Hearing dates: 7 February 2018 Decision date: 02 March 2018 Before: Beazley P at [1]; Garling J at [34]; Hidden AJ at [35] Decision: Refuse leave to appeal against sentence. Catchwords: CRIMINAL LAW – appeal – sentencing – whether sentences imposed were manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 91H(2) Criminal Code (Cth), s 474.26(1) Cases Cited: Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 R v Asplund; Asplund v R (2010) 216 A Crim R 48; [2010] NSWCCA 316 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 Category: Principal judgment Parties: Bradley James Moore (Applicant) Regina (Respondent) Representation: Counsel: J Lyons (Solicitor) (Applicant) S Buchen (Respondent)

Solicitors: Murphy Lyons Lawyers (Applicant) Office of the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/152969 Decision under appeal Court or tribunal: District Court Date of Decision: 2 June 2016 Before: Syme DCJ File Number(s): 2015/152969

Headnote

[This headnote is not to be read as part of the judgment] In March 2015, the applicant, then 54 years old, was identified by the police as being involved in communicating with young males online. The police commenced a covert investigation using the fictitious identity of a 14 year old male. After the fictitious identity 'friended' the applicant on Facebook, the applicant and the fictitious identity engaged in sexually explicit communications over various forms of media for approximately 10 weeks. In May, the applicant organised to meet the fictitious identity, and was arrested at the planned meeting place. On that day, a search warrant was executed at the applicant's home. The police located images and videos containing child abuse material on the applicant's computer and an external hard disk drive. The applicant was charged with committing two offences: first, using a carriage service to procure a person under 16 years of age to engage in sexual activity contrary to the Criminal Code (Cth), s 474.26(1); and secondly, possessing child abuse material contrary to the Crimes Act 1900 (NSW), s 91H(2). The applicant pleaded guilty to both offences in the Local Court. The applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years, 6 months commencing on 8 September 2016 in respect of the s 474.26(1) offence, and 2 years imprisonment commencing on 8 March 2016 in respect of the s 91H(2) offence. The only issue on appeal was whether the sentences imposed were manifestly excessive. Beazley P (Garling J and Hidden AJ agreeing) held, refusing leave to appeal against sentence: (i) Having regard to the evidence, the sentencing judge did not err in finding that the applicant showed "little insight into the consequences of his offending": [19]–[26]. R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353, referred to. (ii) The sentencing judge gave due consideration and assigned due weight to the applicant's psychiatric history: [29]. (iii) No error has been demonstrated in the sentencing judge's approach to sentencing: [31]–[32]. Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221, referred to.