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[4]       That arises because, while s 140 of the Crimes Act 1961 as originally enacted made indecent assaults or inducing indecent acts on or by a boy under 16 years of age punishable by a maximum term of ten years imprisonment, those sections were repealed by s 3 of the Homosexual Law Reform Act 1986 with effect from 8 August 1986 which substituted the original s 140 with ss 140 and 140A.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 Those sections were repealed on 18 May 2005 by the suite of amendments enacted by the Crimes Amendment Act 2005, particularly ss 132 and 134 of the Crimes Act which sets the maximum term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…

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 The Queen v Moloney

Details

AGLC: The Queen v Moloney [2009] NZCA 9
Case: [2009] NZCA 9
Decision Date: 13 February 2009

CaseChat Overview and Summary

The case of The Queen v Moloney involved a criminal appeal against the sentencing of Roger William Moloney, who was convicted on multiple counts of sexual offending that occurred in the 1970s at Marylands School in Christchurch. The convictions related to five complainants, and the sentencing by the trial judge, Panckhurst J, resulted in a two years nine months imprisonment for each of the seven counts. The appeal raised an issue concerning the maximum sentence available for certain counts, which was mistakenly understood to be ten years imprisonment for all counts at the time of sentencing. It was later clarified that the maximum sentence for offences against boys aged between 12 and 16 was seven years imprisonment.

The legal issues in this case centred on whether the incorrect understanding of the maximum sentence influenced the trial judge's sentencing decision, and if the sentences imposed were manifestly excessive. The appeal argued that had the correct maximum sentence been known, the trial judge might have considered home detention as an alternative to imprisonment. The Court of Appeal had to determine whether the sentences imposed were within the range of appropriate penalties for the offences committed.

The Court of Appeal found that the seriousness of the offending, which involved multiple counts and significant abuse of trust, justified the sentences imposed. The Court concluded that the trial judge's starting point of four years imprisonment for the counts with a maximum available sentence of ten years was not outside the appropriate range. Similarly, the reduction of 15 months was considered generous. For the counts with a maximum available sentence of seven years, the Court found that the sentences imposed were towards the top of the available range but not manifestly excessive. The Court held that home detention was both inappropriate and unavailable, given the nature and impact of the offending.

Accordingly, the appeal against the sentence was dismissed. An extension of time for appealing was granted.

Orders