The Queen v Moloney

[2009] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2008
[2009] NZCA 9

THE QUEEN

v

RODGER WILLIAM MOLONEY

Hearing:10 February 2009

Court:Robertson, Hugh Williams and Miller JJ

Counsel:G F King for Appellant

S B Edwards for Crown

Judgment:13 February 2009  at 2 pm

JUDGMENT OF THE COURT

AAN EXTENSION OF TIME FOR APPEALING IS GRANTED.

B        The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

INTRODUCTION

[1]       At the conclusion of a jury trial involving 30 counts of sexual offending in the 1970s at Marylands School in Christchurch ‑ a school operated by the order of St. John of God of which the appellant, Brother Moloney, was then Prior ‑ the appellant was convicted on seven charges relating to five complainants.

[2]       On 1 August 2008 the trial Judge, Panckhurst J, sentenced Brother Moloney to two years nine months imprisonment on each of the counts on which he had been convicted.

[3]       In sentencing the appellant, the Judge – and all counsel involved – proceeded on the mistaken understanding the maximum sentence available in each case was one of ten years imprisonment.  However, it is now agreed that while ten years imprisonment was the maximum then available for the three convictions for inducing indecent acts by a boy under 12 years of age, the maximum for similar offending against boys aged between 12-16 was then seven years imprisonment. 

[4]       That arises because, while s 140 of the Crimes Act 1961 as originally enacted made indecent assaults or inducing indecent acts on or by a boy under 16 years of age punishable by a maximum term of ten years imprisonment, those sections were repealed by s 3 of the Homosexual Law Reform Act 1986 with effect from 8 August 1986 which substituted the original s 140 with ss 140 and 140A.  They made indecent assaults on or inducing an indecent act by a boy under 12 punishable by imprisonment of up to ten years with the maximum term for similar offending against boys between 12 and 16 set at seven years imprisonment.  Those sections were repealed on 18 May 2005 by the suite of amendments enacted by the Crimes Amendment Act 2005, particularly ss 132 and 134 of the Crimes Act which sets the maximum term of imprisonment available for sexual violation and doing an indecent act on a child at 14 or ten years imprisonment respectively with sexual connection with a young person under 16 years and doing an indecent act on such a person making an accused liable to ten and seven years imprisonment respectively. 

[5]       Also relevant in this context is s 25(g) of the New Zealand Bill of Rights Act 1990 which gives a person convicted of an offence the benefit of any reduction in penalty enacted between the date of commission of the offence and sentencing.

[6]       The nub of the present appeal was that Mr King, counsel for Brother Moloney, submitted that, had the correct maximum sentence on the three convictions relating to offending against those under 12 years of age at the time been known to the Judge, that may have reduced the penalties imposed, perhaps to the point where a sentence of home detention might have been realistically considered as an alternative to imprisonment.

[7]       The appeal was lodged a few days out of time.  The Crown raised no objection to the application for leave to extend the time.  Therefore, an extension of time for appealing is granted.

Facts

[8]       Only brief reference to the facts is necessary.

[9]       Brother Moloney was convicted on one count of indecent assault on the first complainant (“A”) and one count of inducing A to do an indecent act on him on a date between February 1973 and December 1974.  The complainant was sent to Marylands School in about 1968 at the age of nine and remained there until 1974.  Brother Moloney instigated mutual fondling in a toilet.  The Judge described A’s trial evidence as a “graphic account of the immediate impact upon him”, an impact which persists to the present day.

[10]     The second complainant (“B”) was at Marylands from his sixth birthday in 1972 until 1978.  The appellant was convicted on two counts of inducing B to do an indecent act on him, and having B masturbate him in 1976 and 1977.

[11]     The third complainant (“C”) was admitted to Marylands in 1970 at the age of eight and remained there until 1976.  The appellant was convicted on one count of indecently assaulting C between 1974 and 1976 by touching C’s genitals over the top of his clothing.  When he remonstrated, he was knocked to the ground with what was described as a “backhander”.

[12]     The fourth complainant (“D”) was admitted to Marylands in 1972 at the age of 13 and remained there for 18 months.  Brother Moloney was convicted of indecently assaulting him.  In 1972 D and other boys were to be strapped for breaking bounds.  Because of a physical disability affecting the tendons in his wrists, Brother Moloney was unable to strap D on his hands.  The appellant then took D into an office and made him pull down his pants, spread his legs and fondled his genitals.   After he resisted, D was strapped severely.

[13]     The appellant was convicted on one count of inducing the fifth complainant (“E”) to do an indecent act in 1976.  E, born in 1966 and diagnosed as autistic, was admitted to Marylands in 1974 aged eight and remained for about six years.  On one occasion the appellant and E were alone in a room when the appellant ordered E to disrobe and masturbate him, with the incident ceasing when disturbance threatened.

Sentencing Remarks

[14]     The Judge summarized the events giving rise to the convictions and referred to the victim impact statements.

[15]     The dominant features of the offending were the multiple counts with seven separate incidents involving five complainants committed over a period of three to four years, offending he described as “systematic abuse”.  Though accepting this was non-penetrative abuse of boys, the Judge regarded the abuse as serious, particularly the counts involving the complainants being required to masturbate the appellant.  He described that offending as “perhaps the high point … in terms of its level of seriousness”.

[16]     Additional features in the offending regarded by the Judge as significant included the breach of trust.  The appellant held the position as Prior at Marylands and was thus one whose role was to provide for the particular needs of the pupils, all of whom were special needs pupils and of heightened vulnerability as a result.  He noted the use of inducements, a degree of aggression and violence, and the effects of the abuse still persisting 30 years later.

[17]     The mitigating features were the lack of previous convictions and the gap of 30 years between offending and sentencing during which he had led an “entirely decent life”.  The appellant was 73 years of age at sentencing with low risk of re-offending and in ill health.  The Judge particularly emphasised the “heightened fall from grace which is entailed in the verdicts of the jury”.  He noted that most complainants had received significant payments from the Order as a result of offending by the appellant and others.

[18]     In light of all of that, the Judge adopted a starting point of four years imprisonment and reduced that by 15 months to recognise the appellant’s lengthy offence-free period since the offending coupled with his ill health and age.  As a result, he imposed concurrent sentences of two years nine months imprisonment on each count. 

Submissions

[19]     Mr King submitted that home detention would have been considered by the Judge as a sentencing option had the correct maximum sentences available been known to him, relying on the decision of this court in R v Iosefa [2008] NZCA 453. In support of this approach, counsel relied on the mitigating circumstances outlined by the Judge plus the lengthy period between 2002, when in Australia he first learned of the allegations against him, through lengthy opposed extradition proceedings and pre-trial applications in this matter, leading to sentencing in August 2008. He also stressed the fact that there were initially 37 charges against the appellant but several were stayed and the jury acquitted him on a number of others.

[20]     For the Crown, Ms Edwards made the point that while the maximum sentence of seven years imprisonment was available for conviction on four of the offences on which the appellant was found guilty, the Judge was correct in regarding the maximum sentence available as ten years imprisonment on the three most serious counts, those involving masturbation.  She submitted a four year starting point was well within range on the three counts and was arguably available on the remainder.  In any event, on a totality basis, she submitted the sentences ultimately imposed were within range.

[21]     She submitted home detention, even if available, was an inappropriate sentence given the number of victims, their disability, the abuse of trust involved in the offending and the impact on the complainants.

Discussion and Decision

[22]     The offending for which the appellant was convicted was, on any measure, serious offending of its type.  It persisted over a lengthy period and involved boys or young men who suffered disabilities and were necessarily subservient to the wishes of the appellant (and others of the Order).  Overt or inherent coercion was a feature of the offending.  While all the offending by Brothers of the Order against the boys or young men in their care involved abuse of trust by persons whose task in life was to care for these disabled young men, that was particularly true of the appellant who, as Prior, was in a position where the young men and boys in his care should have been able to resort to him for protection.  The offending by the appellant (and, it is acknowledged, others of the Order) had major impact on the complainants at the time, an impact which has persisted down the decades since.

[23]     As the Judge correctly summarized, apart from a lengthy period during which no other offending has been alleged, there were, in truth, very few mitigating circumstances which the appellant could call in aid.  Seen in that light, a starting point of four years imprisonment on counts where the maximum available was ten years could certainly not be said to be outside the range available to the sentencing Judge.  And the reduction of 15 months he allowed could be viewed as generous.  There is no basis on which imposition of terms of imprisonment of two years nine months on those three counts could be regarded as manifestly excessive.

[24]     Seen in the context of the aggravating features discussed, a starting point of four years imprisonment on the counts where the maximum available is now known to be seven years imprisonment could be seen as towards the top of the available range for that offending but, again, a reduction of 15 months might be regarded as generous.  In any event, on those counts the ultimate result of the imposition of terms of imprisonment of two years nine months for those offences could not be regarded as manifestly excessive particularly when, because of the result of the appeal in relation to the convictions where the maximum term available was ten years, the result can have no practical effect.

[25]     It follows that, in our view, home detention was both inappropriate and unavailable to reflect the seriousness of the total offending.

[26]     The appeal against sentence is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington