Director of Public Prosecutions v Moloney & Montebello

[2023] VCC 1955

22

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-02406
CR-22-02407

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE MOLONEY
&

KANE MONTEBELLO

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2023
DATE OF SENTENCE:	23 October 2023
CASE MAY BE CITED AS:	DPP v Moloney & Montebello
MEDIUM NEUTRAL CITATION:	[2023] VCC 1955

REASONS FOR SENTENCE
---

Subject:Plea - sentencing

Catchwords:          Cause injury intentionally - handle stolen goods - commit indictable offence whilst on bail - possess Schedule 4 poison without authority or licence

Legislation Cited: 

Cases Cited:

Sentence:Moloney: With conviction: $1,500 fine
  and 12-month adjourned undertaking
Montebello: With conviction, $12,000 fine
  and 18-month adjourned undertaking

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. McPhie	Office of Public Prosecutions
For Accused Moloney	Dr M. Gumbleton	Milides Lawyers
For Accused Montebello	Mr N. Rolfe	Rolfe Criminal Law

HIS HONOUR:

1Kane Montebello, you have pleaded guilty to one offence of causing injury intentionally, for which the maximum penalty is imprisonment for 10 years.

2Luke Moloney, you have pleaded to the same offence and to Charge 2 on the indictment of handling stolen goods, for which the maximum penalty is imprisonment for 15 years.  You have also pleaded guilty to two related summary offences, Summary Charge 8 of committing an indictable offence, namely, intentionally causing injury, whilst on bail and Summary Charge 9, that on 11 February you possessed a Schedule 4 poison without being authorised or licenced to do so.  The maximum penalty for the first of those offences is a fine of 30 penalty units or imprisonment for three months, and for the second a maximum fine of 10 penalty units.

3You both admitted a prior criminal history, although to the extent that those histories are relevant they do not speak of a significant criminal history so far as this is concerned, and in your case Mr Moloney, the offences that would otherwise be relevant are now somewhat ancient.

4There is no victim impact statement.

5The summary of prosecution opening was dealt with in some detail at the sentence indication hearing.  I will endeavour to summarise it briefly.

6As at November of 2021 your victim, who was a supporter of the Hells Angels Outlaw Motorcycle Club, was associating with a person who was later to become a patched member of the Mongols Outlaw Motorcycle Club.  At that time both you, Montebello, and you, Moloney, were associated with the Hells Angels Outlaw Motorcycle Club.  In particular you, Moloney were the president of the club's Angel City chapter and you, Montebello, were president of the club's Darkside chapter.  Your co-offender, Assafiri, was a patched member of the Angel City chapter.

7In early 2022, it became known to both of you that it was alleged that your victim had been associating with a patched member of the Mongols Motorcycle Club.  As a result you, Moloney messaged your victim and he told you that he wanted to leave the club.  You responded that he needed to return his supporter clothing and you asked that he attend your house at 8.15 pm on 6 February 2022.

8At about 6.30 pm on 6 February 2022, your victim left his home and travelled to your home, Mr Moloney.  He arrived at about 8.26 pm and parked in the driveway.  He returned his Hells Angels supporter clothing to you.  You then sought to have a drive in the Mustang motor vehicle in which your victim had arrived.  After that was completed, you returned to your house and went to the garage along with your victim and Mr Assafiri.  At about 8.48 pm you, Montebello, arrived at the premises.  You walked into the property through the garage door and picked up a wooden bat that was positioned inside the garage.  You held it in your right hand and pointed it at your victim's face.  He was standing directly in front of you. 

9You asked him whether there was a reason why you shouldn't wrap the bat around his face.  At that point you, Moloney, shut the garage door and stood in front of the garage.  Assafiri stood in front of your victim to his right and stood in such a way as to cover the fence to the rear neighbour's property.  Your victim had his back up against the fence of the unit behind your property, Mr Moloney.  He was at that stage surrounded by yourself, Mr Montebello and Mr Assafiri.

10You, Montebello, asked you, Moloney, for a hammer.  There was some conversation in which you, Montebello, told your victim that you knew that he had been talking to the Mongols and that you knew that he had a bike belonging to the Mongols at his mother's house.  When your victim sought explain himself you, Montebello, told him that if he continued to lie you would break the bat over his head.  You then slapped your victim to the face using your left hand.  After he opened his eyes following that blow to his face, he noticed that you, Moloney, had a knife in your left hand, which you were holding with the blade facing him.  You, Montebello, told your victim that you knew he had loads of people around the corner.  He responded that he didn't.  You, Montebello, then reached forward, grabbed your victim's nose ring and told him that you would smash him.

11Your victim then pushed you, Montebello, backwards, stood up and went towards the rear fence to your property with Mr Moloney on his left.  He then jumped that fence.  As he did so Assafiri grabbed hold of his right leg with both hands.  You, Montebello, then hit your victim with the bat on his left arm near his elbow.  He then kicked out at Assafiri causing Assafiri to let go of him.  He then fell off the fence and landed on the other side.  He felt another hit from the bat which connected with his right arm, right shoulder and the right side of his neck and head.  Your victim then got to his feet and ran from the scene.

12He was later taken by police to the Royal Melbourne Hospital for treatment.  The police contacted you, Moloney, and sought to retrieve the Mustang motor vehicle that your victim had left at your address.  You indicated that you were happy for it to be removed, because it was blocking your driveway.  Your victim presented at the Royal Melbourne Hospital with pain in his forearms.  Visible injuries included diffuse soft tissue tenderness from his elbows to his wrists on both arms with grazes to the exterior aspect of his left forearm.  Movement of both elbows and wrists was limited due to pain.  Gross bony deformity was not observed, a graze was visible to his left knee.  An x-ray to both forearms showed a large joint effusion and fracture to the radial head of the left elbow and a joint effusion in the intra-articular fracture to the radial head of the right elbow.  No other fractures were visible.  Diagnoses of bilateral radial head fractures associated with bilateral joint effusions were made.

13After discussion with an orthopaedic registrar it was determined that conservative treatment together with bilateral arm slings and analgesic relief would be appropriate for the management of your victim's injuries, which included no load-bearing for six weeks.  Your victim was, however, admitted into hospital due to severe forearm pain and required input from acute pain service.  He continued to experience pain that required analgesic relief due to his elbow injuries three months from the assault.  He remained under the care of a general practitioner, and he was unable to work.

14A forensic medical officer opined that arm fractures of the type described may take weeks to months to heal and the severity of the injury has the capacity to impair hand and arm function and can therefore impact on a person's work and social life.  I make particular reference to that because there is no victim impact statement, and it is only right that the impact of the offending at least be identified.

15On 11 February 2022, police executed a search warrant on your home Mr Moloney, and amongst the material they found was a book of prescription forms in the name of a particular doctor, who I will not name, along with a box containing prescription medication which was a Schedule 4 poison and is the subject of the second of the two related summary offences.  The prescription book is the subject of Charge 2 on the indictment of handling stolen goods.  When police attended your address, Mr Montebello, you were interviewed and admitted that you were the president of the Hells Angels Darkside chapter.  You denied knowing your victim and you denied holding a bat at your victim.  Indeed, you denied being present at Mr Moloney's house on 6 February 2022.

16It is the Crown case that, as a supporter of the Hells Angels, it was an affront to the club, its members and its rules for the victim to be associating with someone associated with the Mongols Outlaw Motorcycle Club, it being a rival club.  As a means of punishment for his breach and perceived disloyalty to the Hells Angels, it was agreed between you, Mr Moloney, you, Mr Montebello, and Assafiri that your victim would be punished, given that he was a supporter of the Angels City chapter and specifically invited by you, Moloney, as the president of that chapter.  The punishment occurred with your sanction, Mr Moloney.

17On 6 February 2022, by agreement, arrangement or understanding, you Montebello and you Moloney, along with Assafiri, punished your victim for his perceived transgressions by physically assaulting him.  During that assault he sustained the injuries that I have described and they were intentionally caused by you acting jointly as alleged in Charge 1 on the indictment.

18Turning to matters personal to you: each of your counsel provided me with written submissions and the materials that I have outlined. 

19In your case Mr Montebello, you are now 33 years of age.  You completed Year 10 at school.  You then completed a VCAL course, third year plumbing, but you later commenced a career as a concrete pumper which is still your chosen career.  You have a very close relationship with your parents and with your siblings.

20You had a severe motorcycle accident in 2019 and suffered serious physical injuries as a result.  That also gave rise to the post-traumatic stress disorder and generalised anxiety disorder diagnosed by Ms Cidoni.  She refers to those disorders as significantly impacting your daily functioning and quality of life.  In her report she expresses the opinion that at the time of the alleged offending your mental state would have been significantly influenced by your clinical and cognitive diagnoses as well as your substance use.

21She assessed you as being low risk of reoffending.  It was submitted by your counsel that arguably limbs 5 and 6 of the Verdins principles are enlivened.  I am not persuaded that they are, although those factors of course are relevant in a general sense in the sentencing discretion.  It was conceded on your behalf that, given your drug use at the time of the offending, it was somewhat difficult to establish a causal link between your mental disorders and the offending such as would support the application of Verdins principles 1-4.  I agree with that assessment.

22You spent 13 days in custody following your arrest on 11 February 2022 and were released on bail on 24 February 2022.  During your time in custody, you were in isolation.  It was your first time in custody and it was submitted on your behalf that you found it to be very difficult.  For the first three days you were held at the Dandenong holding centre.  On the fourth day you were transferred to the Ravenhall Correctional Centre where you were locked down for 24 hours a day, having the opportunity of communicating with your solicitor for the first time during that period.  You have been on bail since your release from custody on 24 February 2022.  It was submitted that this is not the most serious example of this type of offence.  I accept that submission.  But it was nevertheless an ugly incident which was morally and legally unjustified.  Your victim was outnumbered and at a considerable disadvantage at the time.  You wielded the bat and struck him.

23You are employed on a full-time basis.  You are the father of two young children.  You are in a stable relationship.  You have been on bail for the last 18 months and it was submitted that there would be little to be gained from sending you back to gaol.  I accept that submission and I indicated an acceptance of that submission at the sentence indication hearing.  It was submitted that given the time that you had already spent in custody, a conviction and substantial fine would be within the available sentencing range.  I have already indicated that I accept that submission and will proceed to sentence you accordingly.

24I move now to you, Mr Moloney.

25The offending occurred at your home.  The case for the prosecution is put on the basis of a joint criminal enterprise.  Although you did not strike any of the blows that caused the injuries to your victim, you wielded a knife and were part of the joint venture which was described by the prosecution in the summary which has been accepted on your behalf.

26You have a prior criminal record, the last offence being in 2016.  So all of your prior offending is now of quite significant vintage.  You are 42 years of age.  The two offences for which you have appeared previously on 7 January 2014, for recklessly causing injury, resulted in the court order being without conviction and a requirement that you pay a thousand dollars to the court fund.  Then on 5 May 2015, also for an offence of recklessly causing injury, this time with conviction you were fined $7,500.  Those are relevant prior convictions and offences of at least a broadly similar kind.  Although they are of considerable vintage now, and I note that the punishment would not suggest that they were at the top end of the range of offences of that kind, they are relevant and I take them into account.

27You were raised by a loving family, educated to Year 12, followed by obtaining a Bachelor of Arts degree.  It was said on your behalf, and I accept, that you have a high work ethic, that you are loyal to employers, that you are financially secure and that you purchased your home at a young age.  You have had years of stability, being married with a child.  You have a work history, working for a major food manufacturing company for 10 years, then for another company for another 10 years.  Unfortunately, the publicity associated with your arrest led to your employment at your last place of work being terminated.

28You have a childhood diagnosis of ADHD, which has persisted into adulthood.  You were a professional boxer for 10 years.  Although you may well have had head injuries, the neuropsychological assessment is that you do not suffer from an acquired brain injury.  You were diagnosed with depression in March 2021.  You have engaged in substance abuse since you retired.  You have been referred to the NDIS for supports.  Your affiliation with the Hells Angels Outlaw Motorcycle Club commenced in 2016 when you separated from your then partner and retired from professional boxing.  That led to substance abuse.  You have since renounced your club membership and you have disassociated yourself from members and supporters of that club.

29You are now in a stable relationship.  You are the father of a 10-year-old son.  You have reconciled with your ex-partner and mother of your son.  You have the support of your mother and father.  You have been abstinent from illicit drugs and you have availed yourself of alcohol and drug and psychological counselling.  You are appropriately medicated.

30Your counsel raises the proposition that I need to have regard to the sentence imposed on your co-offender Assafiri to fulfill the obligation of imposing sentences as between co-offenders that are on a par with each other.  I cannot do justice in terms of any precise parity as between you and your co-offenders without distorting the sentencing of the other two offenders.  The sentence that I intend to impose on you would seem, on the face of it, to be particularly lenient, but it reflects the fact that you have spent 379 days already in custody for this offending conduct.

31Doing my best to apply all of the sentencing principles that I need to include: just punishment, denunciation, general deterrence and individual deterrence to the extent that that is appropriate, and giving you credit for your pleas of guilty (which should be given significant credit in this immediate post-COVID circumstance and given that both of you were in custody during the heavy restrictions imposed by the COVID pandemic) which support a submission that you show a degree of remorse and you have accepted criminal responsibility for your conduct - all of those are factors that need to be given proper weight.

32I regard each of you as having good prospects of rehabilitation.  But bear in mind that these convictions will be on your record now and they will be taken into account if you were to offend again.  These sentencing remarks will reflect the reasons for the differences between the sentences that I intend to impose upon each of you.

33Dealing first with you, Mr Montebello.

34For the offence of causing injury intentionally, the subject of Charge 1, you are convicted and fined $12,000.  In addition, you will be placed on an adjourned undertaking for a period of 18 months to be of good behaviour and to attend court if called upon to do so during that period of 18 months.  I make the disposal order in accordance with the draft with which I have been provided.  But for your pleas of guilty I would have sentenced you to a fine with conviction of $16,000 and ordered that you be the subject of an adjourned undertaking for a period of two years.

35In your case, Mr Moloney.

36On Charge 1 on the indictment, I convict you and fine you $1,000 and in respect of Charge 2, you are convicted and fined $500.  In respect of each of related summary offences 8 and 9 and offences the subject of Charges 1 and 2 on the indictment you will be the subject of an adjourned undertaking for a period of 12 months, to be of good behaviour and to appear at court if called upon to do so.

37

I make the disposal order in accordance with the draft that I have received.  I do not think it is necessary to make an order under s6AAA in the case of

Mr Moloney is it, Mr McPhie?

38MR McPHIE:  No, there's no requirement on either of the pleas, Your Honour.

39HIS HONOUR:  All right.  So far as the forfeiture orders sought by the prosecution are concerned, I make no orders and leave it to parties to determine whether the matter is to be pursued.  If agreement is reached then I am happy to make the orders in chambers.  The adjourned undertakings have been prepared and I think each of your clients will need to sign them, subject to anything either of you wish to say.  Do you want to approach them now and ensure that they understand what they're signing up for?

40DR GUMBLETON:  (Indistinct words) Mr Moloney, Your Honour.

41HIS HONOUR:  All right.

42MR McPHIE:  I've had that discussion with my client previously, Your Honour, he's aware.

43HIS HONOUR:  He's aware of that?

44MR McPHIE:  He's aware of that.

45HIS HONOUR:  My associate will take the documents to the back of the court and they can sign them.  They can leave the dock.  Custody officers, you can allow both of the accused to leave the dock now.

46MR McPHIE:  Your Honour, I mis-spoke before, Your Honour's correct: for Mr Montebello you are required to provide a s6AAA, but not for Mr Moloney.

47HIS HONOUR:  Thank you.

48I have signed each of those undertakings, they're now in force.  Be aware of course that if you commit another offence punishable by imprisonment during the period when the undertakings are in force you could be brought back and re-sentenced for the offences to which they refer.  So, it's important that you keep out of trouble.

49OFFENDER:  Thank you, Your Honour.

50HIS HONOUR:  Anything else, counsel?

51DR GUMBLETON:  Not from my perspective, Your Honour.

52MR McPHIE:  May it please the court, nothing further.

53HIS HONOUR:  Yes, thank you.

- - -