By Paul Gregoire and Ugur Nedim
Charles Smith had just finished dinner with his mother when he attended the pokies room at the Quakers Hill Inn, with the allotted $50 he’d allowed himself to gamble on the machines.
Thomas Maloney, an associate of his, who shared friends in common, was also trying his luck at the machines.
During the evening Smith asked Maloney if he could borrow $30 to buy some drinks, due to his limited funds. And later on, Smith won $7,050 on a machine, which saw Maloney immediately approach him to claim that half the winnings should be his, as he’d lent him the money.
“Half that’s mine or one out,” stated Maloney, who’d had quite a few to drink. Smith took this to mean that there would be a fight if he didn’t hand over some of the cash.
The two men subsequently left the pub together and walked into the driveway of a local service station. This was the last moment Smith recalls. However, a witness saw Maloney pull him by the collar, punch him twice in the torso, and then smash him in the face with his elbow.
Smith hit the ground, landing on his back. Maloney initially tried to rouse him, but then began tugging at the unconscious man’s trouser leg. And when the police arrived at the scene, Smith was lying in a pool of blood, with his trousers removed, while Maloney was pacing back and forth nearby.
Maloney was arrested. And at the station, during a check of his belongings, he signed a form stating that the ticket for the pokie winnings, which was in his possession, was his. Meanwhile, when Smith came to in the hospital, he noted the ticket missing.
Due to prior NSW police warning, the Quakers Hill Inn refused to hand over the winnings when Maloney tried to cash the ticket, and, after he left in a hurry, the offender was later picked up by officers.
An extreme act of violence
A Katoomba District Court jury found Maloney guilty on one count of aggravated robbery, contrary to section 95(1) of the Crimes Act 1900 (NSW). This offence carries up to 20 years imprisonment. And the robbery was aggravated due to the actual bodily harm it involved.
The jury heard that Smith had suffered significant head injuries, including internal bleeding and a fractured skull. And as a result, he’d lost all sense of smell and taste, and continued to have ongoing short-term memory loss.
Maloney represented himself at trial. He countered the Crown’s case by claiming the money he gave Smith was for his associate to continue playing the pokies and was not a loan, and he suggested the police mixed up the pair’s belongings, which resulted in his being in possession of the ticket.
On 3 September 2020, District Court Judge Jennifer English sentenced Maloney to 6 years imprisonment, with non-parole set at 3 years. In doing so, her Honour found that the level of violence involved in the crime was extreme, while the objective seriousness of it was at mid-range.
Extreme had no bearing
Maloney appealed the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 7 February 2022, based on two grounds. The first was that the judge made an error in considering the violence was extreme, and the second being that the sentence was manifestly excessive.
On the first point, Maloney submitted that while it was open to the court to find the injuries severe and at the high end of actual bodily harm, it doesn’t necessarily follow that the brief use of violence was extreme, however the judge assuming that it was had contributed to the mid-range finding.
NSWCCA Justice Ian Harrison advised that in considering this ground it was important to point out that the words of a judge made in a busy courtroom “should not be subjected to unreasonably critical analysis or semantic scrutiny” unless they’ve led to significant competing outcomes.
Further, Judge English’s use of the term extreme in describing the violence was in accordance with how she assessed the objective seriousness of the offence, and it is well accepted that the making of such an assessment is a matter for the sentencing judge.
His Honour further found that based on the facts, the mid-range finding was well within reach. And when assessed against the description of the violence as extreme, the mid-range finding was favourable for Maloney. So, this first ground of appeal was not made out.
Manifestly excessive
In considering whether the sentence was manifestly excessive, Justice Harrison considered the sentencing remarks made by Judge English.
The sentencing judge outlined that Maloney was a man of prior good standing, with this one incident being an aberration fuelled by excessive alcohol consumption. And she noted a number of reasons why he was unlikely to reoffend, and that he was “using his time in custody productively”.
Justice Harrison then set out that despite the sentencing judge having listed these favourable aspects regarding Maloney, she then failed to properly account for them in sentencing, as she was more focused on sending out a general deterrence message around alcohol-fuelled violence.
“I consider that a lesser sentence is warranted,” his Honour remarked, in upholding the second ground.
The resentencing exercise
In considering a new sentence, his Honour outlined that Maloney is classed as an “off complex” C2 inmate. This means he can work outside of the prison. At the time, he held the role of team leader in charge of ten other inmates as they worked in grounds maintenance on the outside.
Justice Harrison then read out a long list of considerations Maloney put to the court as to why he was due a reduced sentence. And his Honour determined it was highly unlikely he would reoffend, especially with a good community and a strong family waiting for him on the outside.
On 7 March this year, Justice Harrison quashed the original sentence and resentenced Maloney to 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. This sentence reflected the original judge’s finding of special circumstances on sentencing.
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a parole period must not exceed a third of the time an offender has to remain in prison. But if a judge finds special circumstances more time can be spent in the community under supervision.
NSWCCA Justices Mark Leeming and Stephen Rothman both agreed with their colleague’s findings and orders.
