Moloney v R

1. [1]

   LEEMING JA: I agree with Harrison J.

2. [2]

   ROTHMAN J: I agree with Harrison J.

3. [3]

   HARRISON J: Thomas Moloney appeals against the severity of a sentence imposed on him by her Honour Judge English in the District Court at Katoomba on 3 September 2020. Mr Moloney was convicted by a jury after a trial on a charge of aggravated robbery contrary to s 95(1) of the Crimes Act 1900. The circumstance of aggravation was the infliction of actual bodily harm. The maximum penalty for an offence against this section is imprisonment for 20 years.

4. [4]

   Her Honour sentenced Mr Moloney to a total term of six years imprisonment comprising a non-parole period of 3 years commencing on 18 June 2020 and expiring on 17 June 2023 with a balance of term of 3 years expiring on 17 June 2026.

5. [5]

   Mr Moloney appeals to this Court against the severity of his sentence upon two grounds as follows:

Facts

1. [6]

   The facts giving rise to the charge are in relatively small compass and are as follows.

2. [7]

   The victim, Mr Charles Smith, had attended the Quakers Inn with his mother for a meal. His mother left after they had eaten together, and Mr Smith remained and commenced to play the poker machines. Mr Moloney entered the gaming room at some point. Mr Moloney and Mr Smith were associates and had a number of mutual friends. They had previously socialised together at the Quakers Inn.

3. [8]

   At some time in the evening Mr Smith asked Mr Moloney if he could borrow $30. Mr Smith said that because he had a gambling addiction, he only took $100 with him to the hotel, and planned to use $50 for food and $50 for the poker machines. At the time he approached Mr Moloney and asked for money, he wanted to buy a round of drinks but did not have enough money to continue gambling and pay for drinks. Mr Moloney gave Mr Smith $30 in cash. A little while later Mr Smith won a jackpot of $7,050.76. Mr Moloney immediately approached him and claimed that half the winnings were his, as the money was won using the money he had borrowed. Mr Moloney told him, “Half that’s mine or one out”. Mr Smith understood the words “one out” to mean that Mr Moloney would fight him for the money.

4. [9]

   A short time later, the two men left the hotel together. Mr Smith said in evidence that he had intended to go home to get $30 to repay Mr Moloney. However, because Mr Moloney was drunk, he did not do so. Mr Smith thought that by the time they were outside, Mr Moloney had calmed down.

5. [10]

   Mr Smith’s last memory before waking up in hospital was of Mr Moloney starting up about the money, and the two of them walking into the driveway of a local service station.

6. [11]

   A witness, who had been purchasing fuel at the service station, told the court that she saw the two men walking into the car park of the service station. As Mr Smith walked away from Mr Moloney, Mr Moloney grabbed him around the collar, and pulled him towards him. She then saw Mr Moloney punch Mr Smith twice to the torso, and then strike him to the face with his elbow. As a result of this blow, Mr Smith fell to the ground and landed on his back.

7. [12]

   Mr Moloney was seen to be shaking Mr Smith’s leg, as if to rouse him. The witness saw Mr Moloney tugging at Mr Smith’s trouser leg.

8. [13]

   As a result of this assault, Mr Smith suffered significant head injuries, including an acute intracranial bleed, with a right subdural haematoma, a right frontal traumatic subarachnoid bleed and a fracture of the occipital bone extending into the foramen magnum as well as scalp haematomas. As a result of these injuries, Mr Smith lost his sense of smell and taste and has ongoing short-term memory problems. He required ongoing treatment at the Brain Injury Clinic, although he was no longer attending the clinic at the time of sentence.

9. [14]

   The witness to the assault called triple zero, and police arrived a short time later. They found Mr Smith lying on the ground bleeding heavily, with his trousers removed. Mr Moloney was pacing back and forth nearby. He told the police that there had been an altercation.

10. [15]

    Mr Moloney was arrested shortly afterwards, and police carried out a body search at the scene. His pockets were emptied, and the contents placed on the ground before being collected by arresting police. When at the police station Mr Moloney’s belongings were catalogued on a “Property” document. The property listed included the winning $7,050.76 poker machine ticket. Mr Moloney signed the property document, acknowledging ownership. Later, after being charged with assault and released (the robbery being at that stage unreported), Mr Moloney’s belongings were returned to him. He signed a receipt listing the property returned, which included the winning ticket.

11. [16]

    When Mr Smith regained consciousness in hospital, he realised that the poker machine ticket was missing. His mother contacted police on his behalf, advising them of this. Police later contacted the Quakers Inn and asked them to put a hold on paying any poker machine tickets presented to them.

12. [17]

    Evidence was given by a manager of the Quakers Inn that Mr Moloney attended the hotel a day after the assault on Mr Smith and handed over the poker machine ticket, attempting to collect the winnings. The manager recalled the incident because it was unusual for winnings of that amount. He was also aware that police had requested that no winnings be paid out. The manager called police, but Mr Moloney left the hotel with the ticket before they arrived. The interaction between Mr Moloney and the hotel manager was recorded on the hotel’s CCTV system.

13. [18]

    Mr Moloney was later arrested and charged with aggravated robbery.

14. [19]

    Mr Moloney was unrepresented at trial. He asked very few questions of the various witnesses, and therefore the trial was relatively quick. Mr Moloney did not give evidence at the trial or on sentence. From the questions asked at trial by Mr Moloney, it would appear that the main challenge to the Crown case was twofold. First, the basis on which the money was lent (the questions asked suggested that Mr Moloney gave Mr Smith money so he could continue to play the poker machines, but it was not a loan). Secondly, whether the Crown could prove that Mr Moloney removed the ticket from Mr Smith’s pocket after the assault, or whether the police had inadvertently mixed up his belongings with Mr Moloney’s. The police officer who carried out the search was called to give evidence but did not have a memory of the property found on Mr Moloney, the purpose of the search being to ensure that Mr Moloney did not have anything on him that would endanger the safety of any person. Accordingly, the Crown relied on the inferences drawn from the fact that Mr Moloney was searched at the scene, his property seized, and listed on the “property” document at the police station, which in turn was signed by Mr Moloney in an acknowledgment that the property listed were his belongings.

15. [20]

    No challenge was made to the fact of the assault, or the manner in which Mr Smith was assaulted. A significant problem for Mr Moloney was that no alternative version of events was given in evidence. If he was relying on a claim of right (if it were even available) no evidence was given in support of such a claim. Equally, no positive evidence was given as to how the poker machine ticket ended up in Mr Moloney’s list of possessions, or why he signed a document listing items as his property, which included the poker machine ticket.

Ground 1

1. [21]

   In her remarks on sentence, her Honour dealt with Mr Moloney’s conduct in taking the winning ticket from Mr Smith in the following terms:

2. [22]

   Mr Moloney conceded that the consequences of his conduct were severe. He also accepted, uncontroversially, that it was open to her Honour to find that the injuries sustained by Mr Smith were towards the higher end of the scale of injuries that amount to actual bodily harm. However, Mr Moloney also maintained that it does not follow that merely because the injuries were severe that the level of violence used to cause them must have been “extreme”.

3. [23]

   The assault upon Mr Smith involved three strikes, two to his body and one significant blow to his head. The latter involved sufficient force to cause Mr Smith to fall to the ground and, presumably, hit his head. This was the realisation of a well-recognised risk of punching another person in the head. Mr Moloney submitted, however, that the fact that such an act was dangerous does not automatically or inevitably equate to a finding that it involved extreme violence.

4. [24]

   Mr Moloney submits that the blows would have taken merely seconds to inflict. The violence caused Mr Smith to fall to the ground. There appears to be no suggestion that the blows themselves inflicted any injury of note so that the blow to Mr Smith’s head is the only punch of relevance that resulted in any substantial injury.

5. [25]

   Mr Moloney accepted that the word “extreme” is capable of comprehending a range of conduct, but that it must be conduct that falls at the highest end of all violence that could be contemplated by its use. Extreme suggests or denotes conduct far removed from the ordinary and at the highest end of the spectrum.

6. [26]

   Finally, Mr Moloney submitted that by classifying the level of violence as extreme, her Honour overstated the objective seriousness of the offence and thus the sentence that was called for in the circumstances. That was said to be so even though her Honour ultimately classified the offence as falling “at mid-range”.

Consideration

1. [27]

   Evidence was given at the trial by an eyewitness who was present to observe the assault upon Mr Smith by Mr Moloney. That evidence included the following:

2. [28]

   Having regard to that evidence, the Crown conceded in this Court that her Honour's description of the violence displayed by Mr Moloney "was not entirely apt". The Crown submitted however, that when taken in the context of the level of violence used to achieve the purpose of robbing Mr Smith of the winning ticket, her Honour's interpretation was "not inappropriate".

3. [29]

   In forming a view about this issue, it is important to observe that the sentencing remarks of trial judges in busy courts should preferably not be subjected to unreasonably critical analysis or semantic scrutiny unless there is a significant contest about the competing outcomes that might be generated by the words in question. It is also important to recognise that in delivering remarks on sentence in a case such as this, where Mr Smith was badly injured, with lifechanging results for him and his family, that her Honour must be understood to have been speaking to more than one audience in painting the factual picture upon which her decision would be based. Moreover, remarks on sentence should where appropriate be read as a whole for their true meaning and effect, and not in a way that might inadvertently give undue emphasis to some words or expressions when read out of context or in isolation from the whole. Finally, to similar effect, disputed words or expressions should, where possible, be informed by and therefore take their meaning from the ultimate decision or result that they are said to have influenced.

4. [30]

   In the present case, her Honour’s reference to the level of severity of the violence perpetrated by Mr Moloney upon Mr Smith is directly and principally related to her Honour’s ultimate conclusion about the objective seriousness of Mr Moloney’s offending. It is well accepted that the assessment of the objective gravity of any particular offence is a matter for the sentencing judge, reviewable by this Court on limited bases. As the Crown has indicated, the difficulties of intervening in such a determination are heightened where there has been a trial in which the sentencing judge has been able to assess the evidence of witnesses: Field v R [2020] NSWCCA 105 at [51].

5. [31]

   Mr Moloney contends that her Honour’s assessment of the objective seriousness of his offending in this case as “at the mid-range” is discordant with her expressed view that the violence inflicted upon Mr Smith was extreme. However, rather than suggesting that her Honour’s assessment of objective seriousness should have been lower if her use of the term extreme is considered to be erroneous, the better view seems to me to be that her Honour’s assessment of seriousness was uninfluenced by her challenged description of the level of violence involved. In other words, her finding of objective seriousness in the mid-range does not seem to me to have been influenced by a view of the violent assault as of the largest possible degree, exceeding the bounds of moderation or of a kind farthest removed from the ordinary or average.

6. [32]

   In my opinion, her Honour’s assessment of the objective seriousness of Mr Moloney’s offending as at the mid-range cannot be criticised having regard to the facts upon which it is based. It is difficult to see how that assessment could have been erroneously influenced by her reference to extreme violence and yet remain within that range. The countervailing proposition, that her Honour erroneously inflated the level of objective seriousness by reason of her allegedly excessive characterisation of Mr Moloney’s violence, is not in my opinion a reasonably available conclusion. On the contrary, her Honour’s assessment of objective seriousness appears clearly to have been reached despite that characterisation and favourably to Mr Moloney.

7. [33]

   I would dismiss this ground of appeal.

Ground 2

1. [34]

   The principles relating to a ground alleging manifest excess are well-known and require no comprehensive restatement. It is sufficient to note the remarks of Hoeben CJ at CL in JJ v R [2020] NSWCCA 165 at [14] as follows:

2. [35]

   In this case, it is necessary for Mr Moloney to demonstrate that his sentence is one that was not open to her Honour to impose as a matter of discretion: El Sayed v R [2018] NSWCCA 250 at [41]. Moreover, any such assessment will usually proceed on the unchallenged findings of the sentencing judge: see, for example, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [447].

3. [36]

   Apart from her Honour’s comments that are the subject of Ground 1, recorded above at [21], her Honour’s findings are relevantly to be found in the following extract from her sentencing remarks:

4. [37]

   The Crown maintains that these findings are consistent with the imposition of a head sentence of 6 years imprisonment. Mr Moloney contends that the sentence is unreasonable and plainly unjust for an offender who her Honour found to have been a person of prior good character, whose actions were aberrant and who had good prospects of rehabilitation. Although her Honour properly took account of the need for general deterrence, she did not consider that there was any need to take account of specific deterrence, finding in terms that Mr Moloney was unlikely to reoffend.

5. [38]

   Although her Honour set out the several factors favourable to Mr Moloney, the sentence imposed in my view reveals error in the sense that she appears not to have factored them into the sentence imposed or properly to have brought them to account. A head sentence of 6 years bespeaks a failure to have proper regard for or to apply Mr Moloney’s impressive subjective case, at the expense of a disproportionate emphasis, in the particular circumstances of this case, on the perceived need to send a message generally that “alcohol fuelled violence … will not be tolerated”. The significance of that message cannot be doubted, but Mr Moloney should have been given appropriate credit for factors favourable to him. Her Honour erred in failing to do so.

6. [39]

   I consider that a lesser sentence is warranted.

Resentence

1. [40]

   Mr Moloney’s affidavit affirmed on 18 January 2022 was read in anticipation of this Court proceeding to sentence him afresh. The matters to which he deposed are testament to the accuracy of her Honour’s findings and predictions.

2. [41]

   Mr Moloney is classified as “off complex” C2, which entitles him to perform work outside the gaol. He currently works in grounds maintenance involving pruning, mowing and rubbish removal beyond the gaol walls, as well as repairs to the building. He is a team leader of a group of approximately ten others. He is required from time to time to do errands with officers, including going to Bunnings with officers or the tip or the agricultural store to purchase gardening supplies. He works five days per week.

3. [42]

   The following matters, in Mr Moloney’s own words, should be noted:

4. [43]

   Mr Moloney appears likely to return to the community with little, if any, prospect that he will reoffend. He has good community support and strong family connections. The important considerations of deterrence, punishment and retribution in his case must be balanced with the need to ensure that his sentence is not disproportionate to an offence falling in the mid-range, a characterisation of objective gravity that I endorse. Mr Moloney is entitled to a finding of special circumstances for the reasons articulated by her Honour.

5. [44]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed upon Thomas Moloney by her Honour English DCJ on 3 September 2020 and instead sentence Mr Moloney to a term of imprisonment for 4 years and 6 months commencing on 18 June 2020 and expiring on 17 December 2024 with a non-parole period of 2 years and 3 months expiring on 17 September 2022.