Moloney v The The Queen - [2022] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moloney v R [2022] NSWCCA 34
Hearing dates: 07 February 2022
Date of orders: 07 March 2022
Decision date: 07 March 2022
Before: Leeming JA at [1]
Rothman J at [2]
Harrison J at [3]
Decision:
(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.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – aggravated robbery – whether sentencing judge erred in finding that the level of violence used in the offence was extreme – whether sentence was manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), s 95(1)

Cases Cited:
El Sayed v R [2018] NSWCCA 250
Field v R [2020] NSWCCA 105
JJ v R [2020] NSWCCA 165
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Category: Principal judgment
Parties: Thomas Moloney (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Evers (Applicant)
A Morris (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions
(Respondent)

File Number(s): 2018/251707
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW at Katoomba

Jurisdiction:

Criminal

Date of Decision:

3 September 2020

Before:

English DCJ

File Number(s):

2018/251707

Judgment

LEEMING JA: I agree with Harrison J.
ROTHMAN J: I agree with Harrison J.
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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moloney v The The Queen

Details

AGLC: Moloney v The The Queen [2022] NSWCCA 34
Case: [2022] NSWCCA 34
Decision Date: 07 March 2022

CaseChat Overview and Summary

The case of Moloney v The Queen involved an appeal against the sentence imposed on the appellant for his involvement in an aggravated robbery. The appellant, Moloney, was convicted and sentenced for his role in a violent robbery where a victim was severely injured. The appeal focused on the sentence imposed by the sentencing judge, specifically whether the judge erred in finding that the level of violence used in the offence was extreme and whether the sentence was manifestly excessive.

The legal issues before the court were primarily concerned with the principles of sentencing for aggravated robbery and the appropriate weight to be given to the level of violence used in the offence. The court needed to determine whether the sentencing judge had correctly assessed the gravity of the violence and whether the sentence imposed was proportionate to the crime committed. The appellant argued that the sentence was manifestly excessive, given the circumstances of the offence and his role within it.

The court examined the sentencing principles applicable to aggravated robbery and considered the level of violence used in the crime. It noted that the sentencing judge had detailed the severity of the violence and had taken into account the appellant's role in the offence. The court found that the sentencing judge had correctly identified the extreme nature of the violence and had appropriately weighed this factor in determining the sentence. The court concluded that the sentence was not manifestly excessive, as it was proportionate to the gravity of the crime and the appellant's involvement in it.

The appeal was dismissed, and the original sentence was upheld. The court affirmed that the sentencing judge had correctly applied the relevant legal principles and had not erred in assessing the level of violence or in imposing the sentence.

Orders