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.
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.
Mr Moloney appeals to this Court against the severity of his sentence upon two grounds as follows:
Ground 1: Her Honour erred in finding that the level of violence used in the offence was "extreme".
Ground 2: The sentence is manifestly excessive.
[2]
Facts
The facts giving rise to the charge are in relatively small compass and are as follows.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Mr Moloney was later arrested and charged with aggravated robbery.
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.
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.
[3]
Ground 1
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:
"The truth, I find, lies in what is contained in the medical report of Dr Milich that the offender became upset with the victim who declined to share the winnings with him. Clearly he decided to take matters into his own hands and robbed the victim of the ticket and sought to cash it in.
The level of violence used to do [so] was, I find, extreme. Not just one single punch but rather punches to the torso then the head the result of which was to cause the victim to fall backwards and sustain injuries I have already referred to."
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".
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.
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.
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.
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".
[4]
Consideration
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:
"Q. Did you see the two males do anything?
A. I did. As they entered into the entrance of the 7-Eleven, the taller male reached out to grab the shorter male's clothing with his left hand and pulled him backwards.
Q. What was the shorter male doing when the taller male grabbed him?
A. He was trying to walk away.
Q. Whereabouts did the taller male grab the shorter male?
A. At the shorter male's collar at the back of his shirt.
Q. Was the taller male able to move the shorter male when he did that?
A. He was.
Q. How did he move him?
A. He, he pulled him backwards.
Q. What happened next?
A. They, they both stumbled, at which point the taller male then struck the shorter male to the right side of his torso.
Q. Did he do that once or more than once?
A. More than once. Once on the right side and then again on the left side of his torso.
Q. So when you say he struck him on the torso, are you able to describe how he struck him?
A. With a closed right fist to the right side of his torso.
Q. And when he struck him to the left side of his torso?
A. Again it was a left closed fist.
Q. Was it just once to the left side of the torso or-
A. Yes, just once.
Q. What happened next?
A. The shorter male stumbled and turned around, at which point the taller male then raised his right hand and struck the shorter male across the face.
Q. When you say he struck the shorter male across the face, are you able to describe how he struck him?
A. With his elbow.
Q. Are you able to say what happened when he struck the shorter male with his elbow?
A. So once he struck the shorter male, the shorter male fell to the ground.
Q. Were you able to see what portion of the taller male's elbow connected with the shorter male's face?
A. The- it was the actual elbow itself.
Q. The actual -
A. Yeah.
Q. Are you talking about- when demonstrating, we need to put it on the record. Are you talking about the bone of his elbow?
A. Correct.
Q. Then I think you said that the shorter male stumbled onto the ground, is that correct?
A. Correct.
HER HONOUR: He fell to the ground.
SOLICITOR ADVOCATE
Q. Fell to the ground, sorry. How long was this physical altercation? How long did that take place?
A. From when I watched, I would say a couple of minutes and whilst I was there, I could see that the shorter male who had fallen to the ground, the taller male was trying to wake him.
Q. We'll come back to that. While the taller male was assaulting the shorter male in the way that you've described, what was the shorter male doing?
A. He wasn't doing anything.
Q. After the shorter male fell or stumbled to the ground, fell to the ground, what happened next?
A. He was lying there. He didn't move. The taller male then grabbed the cuff of the pants of his leg and was just shaking the leg up and down."
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".
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.
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].
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.
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.
I would dismiss this ground of appeal.
[5]
Ground 2
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:
"[14] The principles relating to a ground of manifest excess, as stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Hili v The Queen; Jones v The Queen [2010] HCA 45 and in many subsequent authorities, may be summarised as follows:
1 appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
2 intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
3 it is not to the point that this Court might have exercised the sentencing discretion differently;
4 there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
5 it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
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].
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:
"I find that the injuries sustained, particularly the ongoing loss of taste and smell, are injuries that fall towards the higher end of the scale of injuries which amount to actual bodily harm.
There are no aggravating factors pursuant to s 21A.
In mitigation I do find that the offender is now remorseful and contrite to a degree although he still appears to attempt to lay some of the blame for his offending at the feet of the victim in not accepting wholeheartedly his role in this most serious crime.
He does not have any significant criminal antecedents and for all intents and purposes, as I have said, he was a person of prior good character. I do find, as I have said, that this was an aberration on his part, one fuelled by the excessive consumption of alcohol.
He has been using his time in custody productively. I find that he has good prospects for rehabilitation, and I find he is highly unlikely to reoffend in this manner again. The loss of income of course will be a significant imposte upon his family, that will be a timely reminder to him what will occur if he does reoffend in this fashion again.
This was yet another episode of alcohol fuelled violence. Violence will not be tolerated. A message must be sent to the community that those who consume alcohol and become intoxicated and commit serious acts of violence will face salutary sentences when they are brought to justice. The community expects nothing less.
I suspect that specific deterrence will be adequately addressed by the time the offender will spend in custody.
A full time custodial sentence is the only sentencing option available.
It was submitted on behalf of the offender that consideration could be given to him serving his sentence other than by way of full time custody, for that to be an option of course it would mean that the total sentence to be imposed would be one of two years or less.
I find this is an offence falling at the mid-range. Of course he stood trial as he was entitled to do but that being so he is not entitled to any discount on sentence. I find that it is a serious example of this type of crime warranting a sentence reflecting significant general deterrence. In the event I do impose a full time custodial sentence, I am asked to make a finding of special circumstances and I will do so.
The offender will need a longer than normal period of supervision on parole to enhance his prospects for rehabilitation and to address any issues such as alcohol abuse which led to his offending behaviour. His time in custody will be more onerous in the current climate of the pandemic although I am told he is able to occupy his time productively whilst he has been in custody. I have taken into account the limitation on face to face contact with his family."
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.
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.
I consider that a lesser sentence is warranted.
[6]
Resentence
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.
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.
The following matters, in Mr Moloney's own words, should be noted:
"7. I have completed a 10-week computer course and a 12-week brick laying program. I have just started a landscaping course which is 2 days a week. On the days the program runs I go to the program and not to work.
8. I am on a list to do my forklift ticket. I have been told that it has been delayed by COVID. I have been told I will be able to do [it] early in 2022.
9. I would like to do a horticultural traineeship and I have been told I am a good candidate but that I cannot do one while I have an appeal on foot.
10. I applied to do courses relating to my offending - HIPU or VOTP. I spoke to the lady who runs HIPU and she told me that I [am] not eligible because of my low risk of re-offending.
11. I have video visits with my children regularly. When we were allowed in person visits, they came in person with my ex-wife. I also have telephone calls with my children every day, sometimes more than once. I very much miss seeing my children in person. They are aged 6, 7, 11 and 15. Before I came into jail I used to see them every weekend and twice during the week I would pick them up from school and take them to sport, have dinner with them and then drop them home.
12. My parents and siblings are in Queensland and I have had AVL visits with them about once a month.
13. When I am released, I will live with my mother-in-law in Sydney who is very supportive and I will be able to spend time with my kids. My ex-wife lives about a 25 minute drive from my mother-in-law.
14. I have work opportunities with my brother in Queensland, but I think it better if I stay in New South Wales close to my children. I also have work potentially available with my previous employer. My previous employer is a friend and we talk regularly on the phone. He tells me that he is pretty sure he will be able to give me employment.
15. My health is reasonable but I am finding that I get tired more easily than I used to.
16. I have had one internal charge which was on my birthday in April 2021. It was for smoking ice. I had never done it before. It was offered to me and it was my birthday and on the spur of the moment I made a poor decision. I did not even like it very much. The experience was not worth the resulting penalty and my own resulting feelings of foolishness. I haven't done it since and definitely do not plan to use drugs again whether in custody or at liberty.
17. In July 2021 because of an outbreak of COVID we were locked in our cells for 3 or 4 days, and after those days we were only allowed out onto the landing for 3 ½ weeks. This meant we [were] able to use the shower and telephone but we were not allowed outside at all for 2 weeks or more. After 2 weeks they started letting us outside a few at a time. It was almost 4 weeks before things were back to more or less normal, although we continued to have frequent irregular lockdowns.
18. There have been a lot of lock downs - probably well over 100 days since I have been in custody; sometimes for the day, sometimes 3-4 days at a time. Our meals are handed through the door. We have no access to showers and no outside time or exercise. There is nothing to do but to sit in my cell day after day without any stimulation or exercise. It is demoralising and depressing.
19. I am one-out in a cell, so I do not even have a cellmate to talk to and there is too much time to think. These lockdowns happen at least once every week.
20. I find it difficult not to have any routine. I never know when I get up if I will be going to work, or if I can have a shower or go outside or whether alternatively, I will be locked in my cell all day or even for days. It becomes depressing not to have any routine or certainty.
21. I find it difficult to motivate myself and to progress with rehabilitation with all the uncertainty and never knowing whether I will be locked in a cell all day or released to go to work or programs.
22. Sometimes I feel like I am emotionally or mentally on a roller coaster. In the past I have been on anti-depressants, but they had significantly unpleasant side effects. I am not on any medications at the moment and I haven't seen a counsellor except once. I was feeling so depressed about 6 months ago that I put my name down to see a counsellor, but it took a few months before I could see someone, and by that time I was feeling better generally. I spoke to her and she was helpful, but it took such a long time to see her that it does not seem worthwhile to ask to see a counsellor again.
23. I am rarely genuinely cheerful except when I talk to my children, but I do feel happier when I can keep myself occupied at work or on programs."
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.
In my opinion, the following orders should be made:
1. Grant leave to appeal against sentence.
2. Allow the appeal.
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.
[7]
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Decision last updated: 07 March 2022