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Court of Criminal Appeal 7 March 2022

Moloney v R

[2022] NSWCCA 34

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE AGGRAVATED ROBBERY

Citation: Moloney v R [2022] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 7 March 2022
Judge(s): Leeming JA, Rothman J, Harrison J (Harrison J delivered the principal judgment; Leeming JA and Rothman J agreed)

Background

The appellant was convicted by a jury of aggravated robbery under s 95(1) of the Crimes Act 1900 (NSW), with the aggravating circumstance being the infliction of actual bodily harm. The offence arose from an altercation at a service station following a dispute over a poker machine jackpot of approximately $7,050. The victim had borrowed $30 from the appellant earlier that evening, and after winning the jackpot, declined to share half the winnings as the appellant demanded.

The assault involved two punches to the victim's torso and an elbow strike to the head, causing him to fall. The victim suffered serious injuries including an intracranial bleed, a subdural haematoma, a subarachnoid bleed, and a fracture of the occipital bone. He sustained permanent loss of smell and taste and ongoing short-term memory problems. The winning poker machine ticket was found among the appellant's belongings when searched by police, and he later attempted to cash it at the hotel the following day.

The District Court sentenced the appellant to six years' imprisonment with a non-parole period of three years. The appellant appealed to the Court of Criminal Appeal on two grounds: that the sentencing judge erred in characterising the level of violence as "extreme," and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the level of violence used in the offence was "extreme"
  • Whether the resulting sentence of six years' imprisonment with a three-year non-parole period was manifestly excessive

Decision

On the first ground, Harrison J accepted that the injuries sustained by the victim were serious and fell toward the higher end of the scale for actual bodily harm. However, his Honour found that the sentencing judge's characterisation of the violence as "extreme" was not open on the facts. The assault comprised three blows, two to the body and one to the head with an elbow, after which the appellant showed signs of concern for the victim by attempting to rouse him. The Court found the violence was serious but was more properly described as mid-range, not extreme.

On the question of hardship in custody, the Court received evidence that the appellant had experienced particularly difficult custodial conditions due to COVID-19 lockdowns within the correctional facility, which affected access to programs, work, and basic routine. His Honour accepted this evidence and treated it as a relevant consideration going to the harshness of the sentence as actually served.

The Court concluded that the combination of the erroneous finding on the level of violence and the failure to properly account for the hardship of custody rendered the sentence manifestly excessive. The offence was assessed as falling in the mid-range of objective gravity for aggravated robbery, and the sentence was reduced accordingly. A finding of special circumstances (allowing the balance of the term to exceed the standard ratio to the non-parole period) was maintained, consistent with the original sentencing remarks.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence of six years' imprisonment quashed
  • In substitution, the appellant was sentenced to imprisonment for 4 years and 6 months commencing 18 June 2020 and expiring 17 December 2024, with a non-parole period of 2 years and 3 months expiring 17 September 2022

Key Takeaways

  • A sentencing judge's characterisation of violence as "extreme" must be grounded in the actual conduct involved, not inferred solely from the severity of resulting injuries. Serious injuries can flow from conduct that does not itself warrant the label "extreme."
  • The Court of Criminal Appeal confirmed that the objective gravity of this aggravated robbery was mid-range, given the nature of the assault (three strikes, no weapons, no prolonged attack) despite the grave consequences for the victim.
  • Harsh or unusual custodial conditions, including those arising from COVID-19 lockdowns affecting access to programs and routine, can constitute a relevant mitigating consideration at sentencing or on appeal.
  • Where a sentencing error leads to an inflated starting point, the resulting sentence may be manifestly excessive even if the individual components of the sentencing exercise are otherwise sound.
  • A finding of special circumstances, permitting a longer balance of term relative to the non-parole period, remained appropriate given the appellant's rehabilitation prospects, family connections, and the need for supervised reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)

Cases:
- 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