R v Mulligan

1. [1]

   LEEMING JA: I agree with Harrison J.

2. [2]

   JOHNSON J: I agree with Harrison J.

3. [3]

   HARRISON J: David Mulligan pleaded guilty in the Local Court on 7 May 2015 to recklessly inflicting grievous bodily harm in contravention of s 35(2) of the Crimes Act 1900. He was committed for sentence to the District Court. His Honour Maiden DCJ sentenced Mr Mulligan on 30 October 2015 by imposing a s 12 order of imprisonment for 15 months, suspended for the same period, to date from 30 October 2015 upon conditions that he be of good behaviour and pay $15,000 to the victim.

4. [4]

   The offence carries a maximum sentence of 10 years imprisonment. A standard non-parole period of 4 years also applies. The Crown appeals against the sentence imposed by his Honour on several grounds. These are referred to later in these reasons.

Background

1. [5]

   On Saturday 11 September 2014 the victim was walking his two boxer dogs along a street in suburban Alexandria. The dogs were each on a leash. Mr Mulligan was at this time also walking his small dog on a leash in the same street. Despite everyone’s best endeavours, the three dogs became entangled in a brief scuffle when the victim’s dogs lunged at Mr Mulligan’s dog. The dogs were quickly separated and the boxers were restrained by the victim who took up a stationary position leaning against a parked car. Mr Mulligan and the victim exchanged words and Mr Mulligan picked up his dog and walked off.

2. [6]

   Mr Mulligan took his dog into a car repair business close to where this incident occurred and left it there. He very soon emerged from these premises and walked back to the victim, who was still by the car with his dogs. Mr Mulligan then proceeded to pace back and forth along the footpath a number of times, coming to within a metre or so of the victim and then walking several metres away from him. A conversation of sorts would appear to have broken out between the two men while this was going on. On the last occasion that Mr Mulligan approached the victim, he punched him three times in the face, causing serious injuries. The victim was unable to offer any effective response in self-defence as he had a dog leash in each hand. Mr Mulligan then retreated from this event, retrieved his own dog and left the area.

3. [7]

   The victim sustained several fractures to his face. These necessitated the insertion of five metal plates in his face and jaw. The victim continues to suffer from collapsed sinuses and nerve damage to the side of his mouth, resulting in slurred speech. His collapsed sinuses cause lung infections due to fluid entering his lungs.

The sentencing proceedings

1. [8]

   Mr Mulligan’s plea of guilty to the charge came before his Honour for sentence upon the basis of what were described as agreed facts. It is obvious that these facts were prepared with the benefit of CCTV footage of the incident obtained from a local commercial establishment. So much is clear from the agreed facts which in terms refer to what the CCTV material depicts.

2. [9]

   Despite the existence of the agreed facts, Mr Wright for the Crown also sought to tender the CCTV material. Counsel for Mr Mulligan initially agreed to that course because he wanted to suggest that part of the written submissions upon which the Crown relied was at odds with what the CCTV footage revealed. It is instructive to record the discussion that ensued when that happened:

3. [10]

   In due course, Mr Mulligan gave evidence. It is necessary to refer to some of what he said both as evidence-in-chief and in cross-examination as follows:

4. [11]

   Following that and some other evidence, his Honour returned to the issue of the tender of the CCTV material. The Crown maintained that it was in the circumstances now essential that his Honour view that material, having regard to the asserted need to consider it in the light of Mr Mulligan’s evidence of what was said to him, which extended beyond the agreed facts, and to compare it with his response to the victim as depicted. The transcript of what occurred at that point in the proceedings is relevantly in these terms:

Grounds of appeal

1. [12]

   It seems clear that it was in the context of that procedural background that the Crown’s original grounds of appeal were notified by its notice of appeal filed on 4 November 2015. Those grounds were as follows:

   1. (1)

      The sentence pronounced was manifestly inadequate.

   2. (2)

      The judge erred in declining to view CCTV footage of the offence.

   3. (3)

      The judge contravened s 95 of the Crimes (Sentencing Procedure) Act 1999 by ordering compensation to be paid as a condition of the bond.

2. [13]

   The notice of appeal contained the reservation that the Crown would also rely “upon such additional or varied grounds as may be filed later.”

3. [14]

   On 23 February 2016 the Crown notified that it proposed to rely upon amended grounds of appeal. They are as follows:

   1. (1)

      The sentence imposed was manifestly inadequate.

   2. (2)

      His Honour erred by failing to have regard to the provisions of s 54B and 54C of the Crimes (Sentencing Procedure) Act 1999.

   3. (3)

      His Honour erred in reducing the head sentence by a further 16.6% after allowing 25% discount for the plea, by virtue of what his Honour described as “exceptional/special circumstances.”

   4. (4)

      His Honour erred by failing to adequately assess the objective seriousness of the offending.

   5. (5)

      His Honour contravened s 95 of the Crimes (Sentencing Procedure) Act 1999 by ordering the respondent to pay compensation as a condition of the bond attached to the suspended sentence.

4. [15]

   In his opening submission to this Court the Crown indicated that “a significant aspect of ground one is related to his Honour’s refusal to view the CCTV footage”. The Crown advised that Mr Mulligan had been put on notice that it proposed to play or to tender the CCTV material in this Court for consideration as part of the appeal. The Crown therefore proceeded to take the Court to the tension between Mr Mulligan’s oral evidence before the sentencing judge that raised the spectre of provocation on the one hand and the complete absence of any material in the agreed facts going to that issue on the other hand.

5. [16]

   Having regard to all of the Crown’s grounds of appeal and to the way in which the argument proceeded in this Court, it is apparent that both parties were content to argue that his Honour’s rejection of the CCTV material remained a live issue for consideration. In this Court the view was taken, in accordance with the approach urged by the Crown, that the CCTV material should be admitted and viewed. It was made clear, however, that Mr Mulligan was at liberty to continue to argue that this Court should exclude the CCTV material from our consideration. The matter thereafter proceeded upon that basis.

6. [17]

   In these circumstances it is convenient to deal with his Honour’s rejection of the CCTV footage first.

CCTV footage rejection

1. [18]

   The Crown contended that his Honour’s rejection of the CCTV footage was an error. Mr Mulligan asserted in contrast that it was “entirely orthodox and within principle”.

2. [19]

   In my opinion his Honour fell into error when he denied the Crown’s attempt to rely upon the CCTV material. There does not appear to have been a formal tender of that material or a formal rejection of it; for example, his Honour did not give any considered written reasons for his decision to refuse the Crown’s attempt to rely upon it. It would, however, be a triumph of form over substance not to conclude that the Crown had asked his Honour to take the material into account in sentencing Mr Mulligan and that his Honour refused to do so.

3. [20]

   That refusal was in the circumstances a denial of procedural fairness. That is for at least two reasons. First, Mr Mulligan’s oral evidence raised the suggestion that he was provoked by what the victim said to him. That was based upon a version of the conversation between the victim and Mr Mulligan that was not included in the agreed facts. To the extent that the CCTV material potentially informed the suggestion that Mr Mulligan might have been provoked, it was material that the Crown was entitled to call in aid of a submission to rebut it.

4. [21]

   Secondly, his Honour was generally critical of the Crown’s submissions because they appeared to his Honour to go beyond what was included in the agreed facts. That was so even though the agreed facts specifically mentioned the CCTV material. It was unfair to the Crown for his Honour to have adopted the position that the Crown’s submissions were somehow impermissibly extravagant or, by implication, inaccurate or misleading, if his Honour was not at the same time prepared to permit the Crown to produce the very material that would arguably have justified what the Crown had submitted. It is not without significance in this respect that his Honour specifically referred to the fact that in his view the Crown’s submissions did not comply with the duties of a prosecutor. It was unfair at that point for his Honour to approbate his criticism of the Crown but coincidentally to reprobate the Crown’s practical ability to respond to it.

5. [22]

   His Honour’s error alone enlivens the requirement that this Court consider whether or not Mr Mulligan should be re-sentenced. Notwithstanding that fact, it remains necessary to consider the balance of the Crown’s grounds of appeal.

Reference to special or exceptional circumstances

1. [23]

   His Honour’s sentencing remarks contain the following reference:

2. [24]

   His Honour imposed a non-custodial sentence. It follows that he neither specified a non-parole period nor any balance of term. The usually understood notion of special circumstances in s 44(2) of the Crimes (Sentencing Procedure) Act, justifying a departure from the statutory ratio of parole and non-parole periods, had no part to play in his Honour’s deliberations.

3. [25]

   Doing the best I can, it seems to me that his Honour was doing no more and no less than attempting to ameliorate the harshness of the sentence he was required to impose by extending leniency to Mr Mulligan. In the course of explaining that he proposed to do so, his Honour fell into the language of special or exceptional circumstances. That is not of itself an error. By way of contrast, however, the consequent reduction of the sentence by a significant amount in order to extend leniency arguably did erroneously infect the sentencing outcome. In my view his Honour’s obvious sympathies for Mr Mulligan were not in the circumstances of this case “reasonably excited”, even bearing in mind that “prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges”: see R v Osenkowski [1982] 5 A Crim R 394. The Crown’s complaint about the sentence is therefore best addressed in consideration of the Crown’s principal challenge to its adequacy.

Sections 54B and 54C Crimes (Sentencing Procedure) Act

1. [26]

   Section 54B(2) of the Crimes (Sentencing Procedure) Act is as follows:

2. [27]

   Section 54C of the Crimes (Sentencing Procedure) Act provides relevantly as follows:

3. [28]

   Nowhere in his sentencing remarks did his Honour refer to the standard non-parole period for the offence in question. The Crown contended that s 101A of the Crimes (Sentencing Procedure) Act should apply. That section provides as follows:

4. [29]

   It is an error for a sentencing judge to fail to take account of a specified standard non-parole period in determining an appropriate sentence. However, the mere failure by a sentencing judge specifically to refer to a matter to which consideration ought to have been given, or to which some reference might merely have been expected, such as a standard non-parole period, does not of itself amount to an error or constitute a ground of appeal. Rather, the failure to do so is a matter that might possibly or even reliably inform a different ground of appeal, such as a failure to give reasons or a complaint that a particular sentence is manifestly excessive or inadequate. That is what the Crown says occurred here. The Crown in effect contends that even if his Honour’s failure to refer to the standard non-parole period was not itself a discrete error, the absence of any mention of it bespeaks or at least suggests error, subsisting in the imposition of a sentence that was manifestly inadequate. The same may be said of a failure to record reasons for imposing a non-custodial sentence.

5. [30]

   It is of course well accepted that a standard non-parole period is an important marker to be taken into account in the sentencing process. In my opinion, however, the proper characterisation of a failure to refer to a standard non-parole period is not as an error as such but as one possible indication that the sentence in question may be demonstrably erroneous. The issue of whether a standard non-parole period is or is not specifically mentioned involves no independent assessment or process of evaluation, in contrast, for example, to the expression of an opinion or finding with respect to the objective seriousness of an offence. I note in this context that the Crown specifically submitted that his Honour’s “failure to comply with sections 54B and 54C [was]... another step in a significantly flawed sentencing process.” In my opinion, his Honour’s failure to refer in terms to the standard non-parole period and his failure to record his reasons for ordering a non-custodial sentence in the present case should be treated in that way. The very sentence imposed by his Honour evidences a failure properly to take account of these things.

6. [31]

   I would also in this context wish specifically to record that I would not lightly or hastily come to a conclusion that an experienced criminal lawyer and judge such his Honour would have been unaware of the importance of a standard non-parole period in sentencing a person for a serious offence where a standard non-parole period applied. The same may be said of the need to record reasons for imposing a non-custodial sentence. It is important to note that judges in all jurisdictions in general, but in the District Court in particular, with their significant workloads and correspondingly onerous responsibilities, ought not to be criticised by overly technical analyses of the minutiae of their remarks when somewhat broader and more significant factors are at play. In the present case it is also important to bear in mind that his Honour’s error was not in failing to mention or refer to the relevant standard non-parole period or to record reasons but in the extension of leniency that in the end could not be justified.

The sentence was manifestly inadequate and the objective seriousness of the offence was not adequately assessed

1. [32]

   It is convenient to consider these two grounds together.

2. [33]

   His Honour expressed the view that the offending was “a little below the mid line seriousness.” It is apparent that his Honour understood, and gave consideration to, the importance of assessing where the particular offence lay in the range of objective seriousness for offences of this type. The Crown does not complain that his Honour’s assessment was erroneous, but does complain that the assessment could not justify the sentence that was actually imposed.

3. [34]

   With the significant advantage of the CCTV footage, which his Honour ought to have viewed, it is apparent that Mr Mulligan was the aggressor. The victim was a man approaching 60 years of age, inoffensively walking his dogs on a Saturday morning. From shortly following the initial incident with the dogs, he remained stationary, leaning passively against a motor vehicle during the events complained of, never offering or implying a physical threat or resistance of any kind. Although Mr Mulligan’s height and weight were matters of apparent contention before his Honour, it is now clear that he was well built and muscular and obviously very fit. In my view, Mr Mulligan also appeared ominously familiar with boxing or fighting, having regard to the way in which he shaped up to the victim before striking him. Mr Mulligan also somewhat ironically presented himself with several opportunities to retreat from the looming confrontation but he unfortunately chose to take advantage of none of them. The ferocity of the assault is clearly to be seen in the seriousness of the damage that his punches inflicted.

4. [35]

   His Honour made a series of findings that are impugned by the Crown. His Honour considered that Mr Mulligan was unable to control his emotions because he considered that his dog was at risk. Whilst the former is patently correct, the latter is demonstrably false. Mr Mulligan’s dog was well removed from any danger long before the assault took place. Mr Mulligan was also not, contrary to his Honour’s finding, small or of a very small build. Nor, to the extent that it could ever have been relevant, was the victim strongly built around the shoulders. His Honour felt that he was unable to determine who between Mr Mulligan or the victim was more responsible for the initial confrontation. The events depicted in the CCTV footage make it clear that Mr Mulligan was wholly responsible for it. Even if it were accepted for the sake of argument that the victim had goaded or taunted Mr Mulligan in the way suggested by him in his evidence before his Honour, the response it generated was wholly disproportionate to anything that might have been said.

5. [36]

   To some extent, however, all of this is beside the point. His Honour’s assessment of the level of seriousness of the offence is not put in issue by either party in this Court. It was conceded on behalf of Mr Mulligan in the sentencing proceedings that it was open to his Honour “to find the offence [fell] within the mid-range of objective seriousness” and he did not seek to resile from that contention in this Court. Factors tending to inform the objective seriousness of the offence do not in the particular circumstances of this appeal therefore warrant undue analysis. What does require consideration in my view is the manner in which Mr Mulligan’s subjective case was utilised by his Honour in arriving at his conclusions. The Crown contended that his Honour gave excessive weight to subjective features. I agree.

6. [37]

   His Honour described Mr Mulligan’s subjective features as “overwhelming”. The Crown’s written submissions dealt with that description in terms that warrant reproduction here:

7. [38]

   The Crown conceded that Mr Mulligan’s criminal history was relatively minor when compared to the offence for which he was sentenced but was nevertheless inconsistent with an overwhelming subjective case. His Honour would have been aware that Mr Mulligan had received the benefit of a suspended sentence in Ireland on a charge of assault. Since then Mr Mulligan has committed further offences involving antisocial, offensive and aggressive conduct. The Crown contended that it was in these circumstances “contrary to principle” to impose a suspended sentence.

8. [39]

   Nor was the expert medical evidence of particular assistance to Mr Mulligan. His Honour correctly ascertained that Mr Mulligan’s “emotions took over” when the offence was committed. Dr Nielssen did not, however, affirmatively diagnose impulse control disorder, but instead considered a form of such a disorder as a possible diagnosis. His Honour did not find, nor is it suggested by Mr Mulligan that he ought to have found, that he was suffering from a medical condition that effectively explained his offending behaviour.

9. [40]

   In my opinion, the sentence imposed by his Honour was manifestly inadequate. In expressing that view I acknowledge that a claim of manifest inadequacy requires this Court to be satisfied that the sentence imposed by his Honour was unreasonable or plainly unjust: Markahan v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. The seriousness of the assault is adequately reflected in the injuries that it caused. The offending cannot be explained and certainly cannot be excused. Even if Mr Mulligan were entitled to the benefit of some kind of provocation, his violent response was entirely disproportionate. In the way in which the Crown approached this point, the degree of provocation did not sufficiently mitigate the seriousness of the offence to justify the lenient sentence actually imposed. Mr Mulligan’s modest criminal history is not particularly significant in the scheme of things but neither does it positively assist him and it certainly could not generate an enthusiasm for leniency of the type that his Honour was minded to extend.

Section 95 Crimes (Sentencing Procedure) Act

1. [41]

   Section 95 of the Crimes (Sentencing Procedure) Act is as follows:

2. [42]

   The Crown submitted that his Honour had no power to require Mr Mulligan to pay compensation to the victim as a condition of the bond. That submission is not contested. Having regard to the view I have formed about the adequacy of his Honour’s sentence, and my conclusions concerning re-sentencing, it becomes unnecessary to consider the effect, if any, of this error upon the sentencing outcome. I observe in passing, however, that his Honour could legitimately have made an order for compensation pursuant to s 97 of the Victims Rights and Support Act 2013.

The residual discretion

1. [43]

   The Crown bears the onus of negating any reason why the residual discretion of this Court should be exercised to dismiss the appeal even though appellable error has been demonstrated: CMB v Attorney-General for New South Wales [2015] HCA 9; (2015) 317 ALR 308.

2. [44]

   In R v O’Connor [2014] NSWCCA 53, Adamson J commented upon the residual discretion as follows:

3. [45]

   The Crown contended that there had been no relevant delay in the institution of the appeal, and no delay in the disposition of the appeal appeared to be imminent. The Crown’s appeal was filed and served less than a week following the sentence proceedings and was listed for hearing in this Court within five months thereafter. The errors established by the Crown were not caused or perpetuated by it. Moreover, there is no post-sentence material from Mr Mulligan that affects or changes any of the matters that were current when he was sentenced.

4. [46]

   Mr Mulligan submitted that this was a case in which there remained scope for the extension of leniency. Mr Mulligan could point to all but three of the mitigating factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act, indicating the availability of grounds upon which this Court could exercise a very favourable sentencing discretion.

5. [47]

   Section 5D(1) of the Criminal Appeal Act provides that on a Crown appeal against a sentence this Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.” This Court has what has been described as a lively discretion to refuse to intervene, even where error has been shown.

6. [48]

   In my opinion, the predominant consideration in the particular circumstances of this case should be the sentence that was actually imposed upon Mr Mulligan. It was manifestly inadequate. An exercise of the residual discretion in this case would not give effect to the need either for general or specific deterrence. It is difficult to accept that general community standards would sit comfortably with a decision that confirmed the appropriateness of the original sentence.

The proper sentence

1. [49]

   Section 68A of the Crimes (Appeal and Review) Act 2001 is in these terms:

2. [50]

   Section 68A was authoritatively considered by a five judge bench in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7. At [96]-[98], Spigelman CJ said this:

3. [51]

   This position has been reaffirmed in decisions since then. For example, McClellan CJ at CL said this in R v Parkinson [2014] NSWCCA 89 at [49] and [51]:

4. [52]

   To the extent that any different view may appear to have been expressed in other cases, it should be disregarded. For example, the matter was considered by this Court in R v Mereb; R v Younan [2014] NSWCCA 149 at [30]-[31] as follows:

5. [53]

   However, it is apparent that the Court in that case was not referred to R v JW. Moreover, In R v Lin [2014] NSWCCA 254, Bellew J referred to the lesser sentence principle with a reference to R v Holder & Johnston at 256, but his Honour similarly made no reference to R v JW. Inasmuch as it is clear that the reference in R v Holder & Johnston at 255-256 is in fact a direct application of the double jeopardy principle, it has now been decisively dealt with by s 68A(1)(b) and the unanimous five judge decision in R v JW. The decisions in R v Mereb and R v Lin have to be read in light of the fact that the authoritative decision on this topic in R v JW was not brought to the attention of the Court.

6. [54]

   Although it is common in cases such as this to be referred to statistical material and comparable cases, the only statistics available in this Court were derived from sentences imposed in the Local Court. Those statistics were inapplicable to proceedings in the District Court. Nevertheless, counsel then appearing for Mr Mulligan relied on them (without correction by the Crown) in support of a submission that “some 63 percent of such matters are dealt with by way of other than custody and some 32 percent by way of suspended sentence, suspended sentence with supervision or intensive correction order.” To be clear, it is not suggested that the erroneous reliance on Local Court statistics before the sentencing judge was other than inadvertent. However, as has been said on more than one occasion, care needs to be taken in order not to misuse sentencing statistics: see Knight v R [2015] NSWCCA 222 at [3]-[13] and [86]-[89] and, for an error not dissimilar to the present case, see Peiris v R [2014] NSWCCA 58 at [87]-[97]. This appeal is another example.

7. [55]

   The random and unpredictable nature of the violence perpetrated upon an innocent victim in this case necessarily attracts a significant degree of general deterrence. Correspondingly, even though the pre-sentence report prepared by Ute Geissler dated 5 August 2015 assessed Mr Mulligan as having a low risk of re-offending, and accepting that Mr Mulligan pleaded guilty to the offence, there remains a need for specific deterrence, particularly having regard to his demonstrated inability to control his violent impulses. There is also a need to reflect an appropriate degree of retribution when the difficult ongoing condition of the victim is taken into account.

8. [56]

   In my opinion a proper starting point is a sentence of 2 years imprisonment. Mr Mulligan is entitled to a 25 percent discount for his early guilty plea. He is also entitled to a variation of the statutory ratio, having regard to what I consider to be a need for psychological intervention and counselling of the type identified by Ms Geissler.

Orders

1. [57]

   I consider that the following orders should be made:

   1. (1)

      Appeal allowed.

   2. (2)

      Quash the sentence imposed by Maiden DCJ on 30 October 2015.

   3. (3)

      In lieu thereof, sentence David Mulligan to a non-parole term of imprisonment of 12 months commencing on 1 April 2016 expiring on 31 March 2017 and to a balance of term of 6 months expiring on 30 September 2017.