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Judgment Summary Supreme Court New South Wales Court of Criminal Appeal R v Mulligan [2016] NSWCCA 47 Leeming JA, Johnson J and Harrison J
The Court of Criminal Appeal upheld an appeal brought by the Crown against a decision by Maiden DCJ in which he sentenced the appellant, Mr David Mulligan to a 15 month suspended sentence for recklessly causing grievous bodily harm to the victim, Mr Carlisle Nissen. The proceedings arose out of the following facts. On Saturday 11 September 2014 the victim was walking his two boxer dogs along a street in Suburban Alexandria. Mr Mulligan was also walking his small dog on the same street, heading in the opposite direction. 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 took it into a car repair business nearby. He then proceeded to pace back and forth across the footpath towards the victim a number of times. 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 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. On appeal the issues were: first, whether the judge erred in declining to view CCTV footage of the offence; second, whether the judge erred in making a further reduction of the head sentence by virtue of “exceptional/special circumstances”; third, whether the judge erred by failing to have regard to the ss 54B and 54C of the Crimes (Sentencing Procedure) Act 199; fourth, whether the sentence was manifestly inadequate; and fifth, whether the judge erred by failing adequately to assess the objective seriousness of the offence. The Court held that in relation to the first issue, his Honour’s decision not to view the CCTV footage amounted to a denial of procedural fairness. This was for two reasons: first, because in his oral evidence, Mr Mulligan raised the suggestion that he was provoked by what the victim said to him when this was not in the agreed facts and was capable of being contradicted by the CCTV footage. Secondly, his Honour criticised the Crown’s submissions because they appeared to go beyond the agreed facts when this too could have been supported by the CCTV footage, especially since the CCTV material was specifically mentioned in the agreed facts.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
In relation to the second issue, the Court noted that the language of “special or exceptional circumstances” is usually deployed in the context of s 44(2) of the Crimes (Sentencing Procedure) Act justifying a departure from the statutory ratio of parole and non-parole periods, and not in relation to the reduction of the head sentence. The judge’s use of this language was not itself an error, however, it was the Court’s view that the consequent reduction in the sentence in order to extend leniency to Mr Mulligan was. As to the third issue, ss 54B and 54C of the Crimes (Sentencing Procedure) Act refer to the requirements that courts give consideration to the standard non-parole period in sentencing and that they give reasons if a non-custodial sentence is to be imposed. The Court stated that it is an error for a sentencing judge to fail to take account of a specified standard nonparole period in determining an appropriate sentence, however, the mere failure specifically to refer to a matter to which consideration ought to have been given such as a standard non-parole period does not of itself amount to an error or constitute a ground of appeal. In this case, the Court held that the sentence imposed by the sentencing judge evidenced a failure properly to take account of these matters. The Court considered the fourth and fifth issues together. Whilst the sentencing judge expressed the view that the offending was “a little below the mid line seriousness”, the sentence he imposed did not reflect this finding. Significantly, the Court found that the judge’s assessment of Mr Mulligan’s subjective case as “overwhelming” was erroneous given that he had previous offences for violent and aggressive conduct. Furthermore, the sentencing judge did not find that he was suffering from a medical condition that effectively explained his offending behaviour. In light of these considerations, the Court found that the sentence imposed was manifestly inadequate. The Court concluded that the random and unpredictable nature of the violence perpetrated upon an innocent victim in this case necessarily attracts a significant degree of general and specific deterrence as well as an appropriate degree of retribution. Consequently, the court allowed the appeal, quashed the previous sentence and imposed a sentence of 2 years imprisonment, which allowing for a 25 per cent discount for Mr Mulligan’s early guilty plea resulted in a sentence of 18 months with a non-parole term of 12 months.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
