New South Wales Supreme Court CITATION : Regina v Moloney [2004] NSWSC 477 HEARING DATE(S) : 10/05/04 - 25/05/04 JUDGMENT DATE : 28 May 2004 JURISDICTION: Common Law Division JUDGMENT OF : Michael Grove J at 1 DECISION : SENTENCE HANDED DOWN CATCHWORDS : CRIMINAL - MURDER AND ATTEMPT TO CAUSE GRIEVOUS BODILY HARM WITH INTENT - THREE VICTIMS - MOTOR CAR USED AS WEAPON - SENTENCE PARTIES : Regina v Andrew Bernard Moloney FILE NUMBER(S) : SC 70080/03 COUNSEL : J. Kiely, QC (Crown) L. Flannery (Accused) SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Friday 28 May 2004 70080/03 - REGINA v ANDREW BERNARD MOLONEY SENTENCE 1 HIS HONOUR: Andrew Bernard Moloney the jury have found you guilty of murder and two offences of attempting to maliciously inflict grievous bodily harm with intent to do grievous bodily harm and it is my task to sentence you for those crimes. 2 The facts are within a tragically short compass. On 25 October 2002 you went with your partner Miss Forbes-Kennedy to the Sportsman's Hotel Blacktown and proceeded to consume beer and use hotel amusement facilities. You arrived at about 11.30am in a Ford Fairlane car which had been recently acquired by Miss Forbes-Kennedy. During the early afternoon she left the hotel for an extended period in company with one Desmond Yarnold and another. After their return you became engaged in a fight with Yarnold in the gaming room, that is a part of the hotel furnished with poker machines. The cause of the fight and who started it, I find irrelevant. The victim of the murder, Patrick Canty, attended to discharge his duty to keep order in the premises. He was the licensee. It was about 3.30pm. 3 Mr Canty ordered you off the premises and escorted you out. You were reluctant to leave. In that there was physical contact with you I find that Mr Canty's actions were reasonable and, in fairness to you, I accept that you had never asserted in conversation with investigating police or through your counsel that you were provoked by any conduct of his. 4 The victims named in the second and third counts, Mr McDonald and Mr Murray, were employees of the hotel who came to assist. 5 You were obliged to occupy your vehicle and depart. I am satisfied that verbal exchange included utterances by you along the lines of "I'll be back" and "I'll fucking fix you." This indicated a festering anger which was focused upon these men who were ejecting you from the hotel. 6 Nevertheless you drove relatively slowly towards the car park exit and I accept that it was the loud whistle by Miss Forbes-Kennedy which caused you to stop. Whether, absent that call you would have continued on your way I do not know, but I am not persuaded that you would not have exited the area. 7 However, be that as it may, you turned the car. You saw the three men walking in the available carriageway between rows of parked cars. You accelerated this relatively powerful vehicle. As found by the jury and I find for the purpose of sentence you formed the intention at the time to cause really serious injury to these three men upon whom, as I have said, you focused your anger. 8 You drove directly at them. You neither braked nor swerved. That the weapon of opportunity was a powerful motor car does not transmute your crimes into some sort of traffic incident and it should be emphasised that your actions were seriously criminal. 9 The real issue at trial was whether you formed the intention to do grievous bodily harm. It was argued that gross intoxication led to your not having that specific intent. 10 I have considered the evidence including that of staff and patrons of the hotel concerning their various opinions of your appearance in regard to intoxication. I take into account your claim to police that you are an alcoholic and your mother's evidence corroborating that claim. 11 Your counsel has submitted that alcohol played a part in your offences. I accept that it did. I am not satisfied that your ingestion, prior to commission of the offences, was a factor, however, beyond a causing disinhibition and a decision to give free rein to venting your anger. Your drinking of alcohol did not affect your formation of intent to cause really serious injury to the three men nor did it affect your appreciation that the carrying out of that intention by striking with the car would have that result. 12 You claimed to fear that these men might beat you up if you returned. I reject that. I find that any fear you harboured developed after you fatally wounded Mr Canty and you became conscious of the understandable feelings of the people who had gathered at the scene. Your immediate reaction was not of remorse but of defiance and this was manifested by your finger gesture, your spitting and your remark "Fuck you all." I accept that these were directed at the crowd and not to your victim. 13 There is no present purpose in my recapitulating the details of your arrest beyond recording my rejection of the proposition that you were on your way to surrender to the police at Blacktown. Hiding in the video store as police passed by contradicts that notion. 14 I am satisfied that your intoxicated presentation on arrest was a consequence of rapid consumption of beer and spirit after you left the scene. 15 Whilst you hid from police to avoid immediate arrest, it can be accepted that you did not take flight from the area of your then current residence. 16 I turn to some subjective matters. You will be 40 years of age in two days time. You have a criminal record which acts as a counter to leniency which otherwise might be extended to you. They are aggravating features, that you were at conditional liberty on bail in respect of offences which in fact were dealt with after your arrest and were subject to suspended sentences imposed in Brisbane District Court in March 2001. The crimes for which those impositions were made included two charges of robbery with actual violence whilst armed committed in May and June 2000 respectively. The period of suspension in accordance with the Queensland sentencing law was 5 years. I note the continuing support which you have from your mother and her observations of your improved condition whilst in custody. I accept the evidence of the Reverend Baynes of your expressions to him of distress about your taking of human life. I note steps taken in connection with fears that you may self harm. I further accept that you have expressed interest in restorative justice but this is a matter in which the attitude of the deceased's family is determinative. It is to your credit that you are apparently willing to offer. 17 Victim Impact Statements have been read by Mr Canty's widow and his father. No objection was taken to this course but it should be pointed out that, whilst the operative statute defines various relatives as immediate family, s 30A of the Act which came into force on 23 June 2003 provides for the reading out in court of the whole or part of a Victim Impact Statement which has been received by the court. 18 There is binding authority concerning the use to which such a statement may not be put and restriction is clearly in harmony with the circumstance that proceedings such as these do not seek to evaluate the life that has been lost but to punish the offender in accordance with established principles relevant to the assessment of sentence. 19 There is, however, an obvious purpose discernible in the provision for the reading out of the statement and that is to drive home to you, the offender, the dreadful consequences of your crime. No one could fail to have been moved by Mrs Canty's words and I did not fail to observe that, like many others in this Court, you shed tears during her reading. You expressed remorse to police. I have mentioned your contact with the Reverend Baynes. I accept that you are remorseful but, of course, you also appreciate that what you have done is beyond repair. 20 There are litanies of aggravating and mitigating factors to which I must have regard in compliance with the operative statute. Applicable recitation has been included in a helpful written submission by the Crown. And as, with one exception to which I will refer, there is no debate about what has been written between counsel. I will not pause to incant what can be read there. It may be treated as incorporated. I have given account to the factors I have identified as relevant. 21 The exception is a submission that Mr Canty was vulnerable in terms of s 21A(2)(l) because he was the hotel licensee. As mentioned in an exchange with counsel I would only assess vulnerability because Mr Canty was on foot and you were driving a large powerful motor car. 22 The absence of alcohol is submitted to be a guide towards a finding that you have good prospects of rehabilitation. Your prior record, however, restrains me from positive finding in your favour. 23 I am satisfied that the three crimes should be treated as the consequences of the one outburst of criminal conduct on your part and the sentences for all three matters will be served concurrently. As was submitted, and I accept, your crimes were not planned or premeditated. 24 Your culpable intention was to cause really serious injury but not specifically to kill. Your crime of murder is not in the worst category nor are you in the category of the worst offenders. I am not persuaded of the existence of special circumstances leading to departure from the statutory formula when setting non-parole periods. 25 You have been in custody since 25 October 2002 and sentence should date from then. I ignore some parts of short sentences imposed in the Local Court which have been served during that custody. In making my assessment of sentence I record that I have considered the statistical collations made available by the Judicial Commission. 26 Andrew Bernard Moloney, on the first count for the murder of Patrick David Canty you are sentenced to imprisonment for 20 years to date from 25 October 2002, expiring on 24 October 2022 with a non-parole period of 15 years to date from 25 October 2002, expiring on 24 October 2017. 27 On each of the second and third counts for attempting to inflict grievous bodily harm on Adam McDonald and Duane Murray, respectively, with intent to do grievous bodily harm you are sentenced to imprisonment for 6 years to date from 25 October 2002 expiring on 24 October 2008 with a non-parole period of 4 years 6 months to date from 25 October 2002 expiring on 24 April 2007. 28 The three sentences are all to be served concurrently. The earliest date for consideration of eligibility for parole is specified as 24 October 2017. ********** Last Modified: 06/07/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.