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Court of Criminal Appeal 1 April 2016

R v Mulligan

[2016] NSWCCA 47

Assault & violence
CRIMINAL LAW APPEAL PAROLE PERIOD

Citation: R v Mulligan [2016] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 1 April 2016
Judge(s): Leeming JA, Johnson J, Harrison J (unanimous, reasons by Harrison J)

Background

The offender pleaded guilty in the Local Court to recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900 and was committed to the District Court for sentencing. The offence arose from an unprovoked street attack in Alexandria in September 2014, in which the offender deliberately returned to confront the victim after a brief dog scuffle, then punched him three times in the face. The victim, who had a dog leash in each hand and could not defend himself, sustained multiple facial fractures requiring five metal plates to be inserted in his face and jaw. He continues to suffer collapsed sinuses, lung infections, and nerve damage causing slurred speech.

The District Court sentenced the offender to 15 months imprisonment under a s 12 suspended sentence order, requiring only good behaviour and payment of $15,000 to the victim. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge had made several errors of principle.

  • Whether the sentencing judge's refusal to admit CCTV footage constituted a denial of procedural fairness, particularly after the offender gave evidence extending beyond the agreed facts.
  • Whether the sentence of suspended imprisonment was manifestly inadequate for an offence assessed as just below mid-range seriousness, carrying a maximum of 10 years and a standard non-parole period of 4 years.
  • Whether the sentencing judge erred by failing to have regard to the standard non-parole period as a guideline.
  • Whether the sentencing judge gave excessive weight to the offender's subjective features, including his low assessed risk of reoffending and his guilty plea.
  • Whether inapplicable Local Court sentencing statistics were wrongly relied upon in submissions before the sentencing judge.
  • Whether the Court of Criminal Appeal's residual discretion to dismiss the appeal notwithstanding error was enlivened.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in refusing to admit the CCTV footage after the offender gave evidence about the incident that went beyond the agreed facts. Once the offender's account expanded into contested territory, the CCTV material became directly relevant to assessing his credit and the true circumstances of the offence. The exclusion of that evidence in those circumstances amounted to a denial of procedural fairness to the Crown.

The Court also found that the sentencing judge had failed to give proper weight to the standard non-parole period as a legislative benchmark, had placed excessive weight on the offender's subjective circumstances, and had not adequately addressed the need for general and specific deterrence. The Court noted that the random and unpredictable nature of the violence, and the serious ongoing consequences for the victim, required those factors to feature prominently in the sentencing exercise.

The Court further identified that Local Court sentencing statistics had been placed before the sentencing judge and relied upon in submissions without correction, despite being inapplicable to District Court proceedings. This was described as an inadvertent error, but the Court noted it was another example of the misuse of sentencing statistics warned against in prior decisions.

Taking a starting point of two years imprisonment, the Court applied a 25 percent discount for the early guilty plea and varied the statutory non-parole ratio to allow for the psychological intervention and counselling identified in the pre-sentence report. The residual discretion to dismiss the appeal despite error was not exercised, as the resulting sentence would produce a substantial miscarriage of justice.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Maiden DCJ on 30 October 2015 quashed.
  • In lieu, the offender sentenced to a non-parole term of 12 months imprisonment commencing 1 April 2016 and expiring 31 March 2017, with a balance of term of 6 months expiring 30 September 2017.

Key Takeaways

  • A sentencing judge's refusal to admit CCTV footage may constitute a denial of procedural fairness where the offender subsequently gives evidence that goes beyond agreed facts and the footage is relevant to assessing that evidence.
  • Where an offender's subjective circumstances are favourable, those matters do not override the need to properly engage with general deterrence, specific deterrence, and retribution, particularly where the offending was random, violent, and caused serious ongoing harm.
  • The standard non-parole period for an offence must be treated as a meaningful legislative benchmark in the sentencing exercise; failure to engage with it is an error of principle.
  • Sentencing statistics from the Local Court are not applicable to District Court proceedings, and their use without correction in submissions is a form of misuse that courts must guard against, consistent with the warnings in Knight v R [2015] NSWCCA 222 and Peiris v R [2014] NSWCCA 58.
  • In dismissing the residual discretion to uphold a flawed sentence, the Court confirmed that discretion is not enlivened where the original sentence would produce a substantial miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW)
- Victims Rights and Support Act 2013 (NSW)

Cases
- CMB v Attorney-General for New South Wales [2015] HCA 9; (2015) 317 ALR 308
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Knight v R [2015] NSWCCA 222
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Peiris v R [2014] NSWCCA 58
- R v Holder & Johnston (1983) 3 NSWLR 245
- R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
- R v Lin [2014] NSWCCA 254
- R v Mereb; R v Younan [2014] NSWCCA 149
- R v O'Connor [2014] NSWCCA 53
- R v Osenkowski [1982] 5 A Crim R 394