Muldoon, Mark Laurence v The Queen

[2010] NSWDC 311

CITATION:	MULDOON, Mark Laurence v R [2010] NSWDC 311
JUDGMENT DATE:	13 August 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I allow the appeal.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - damage property - stalk or intimidate - pre-sentence report - alcohol problem - prior criminal history - well respected in the community when sober - whether to suspend sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 9, 12 Crimes Act 1900 s 195(1)(a) Crimes (Domestic and Personal Violence) Act 2007 s 13(1)
PARTIES:	Regina Mark Laurence Muldoon
FILE NUMBER(S):	2009/262511
COUNSEL:	Mr Holles for the ODPP
SOLICITORS:	Ms Pettet for Mr Muldoon

JUDGMENT

1. Mark Muldoon is appealing from two sentences imposed upon him by magistrates. When a person is sentenced by a magistrate they can appeal to a District Court Judge against the sentence. The District Court Judge hears the case again, usually on the papers before the magistrate, and makes up his or her own mind as to the appropriate sentence. In this case Mr Muldoon received two prison sentences from magistrates for two different offences. Each of the prison sentences was suspended.

2. In his appeal his solicitor, Ms Pettet, is asking that each of the suspended prison sentences becomes a community service order.

3. Mr Holles, who appears as the Crown Prosecutor in both appeals, argues that at least one of the sentences needs to remain as a suspended sentence because of a need for supervision.

4. Briefly the first offence occurred on 19 December 2008 at Portland. Mr Muldoon was drunk and went into a hotel to ask for some money when he wanted to buy some alcohol. The bottle shop proprietor did not provide him with alcohol so he asked another patron who happened to be passing through the bottle shop. That man did not lend him money. As it happened, the man who was passing through who refused him money owned a shop nearby. Mr Muldoon then went up to the shop sometime later and kicked in the window of the shop.

5. Hence, he was charged with damaging property which is an offence against s 195(1)(a) of the Crimes Act 1900. For that offence the magistrate sentenced him to six months imprisonment but suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

6. The second offence occurred seven or eight months later when on 3 July 2009 Mr Muldoon bailed up the same shopkeeper after the shopkeeper understandably told him that he was not allowed in the shop. Mr Muldoon rushed up to him and put his chest against the man’s chest and his nose against the man’s nose, saying “Bring it on, bring it on”. The man said he would ring the police. Later when the man left the store Mr Muldoon called out to him saying “Bring it on, bring it on. I’m going to get you”. Obviously the man contacted the police because the police arrested and charged Mr Muldoon with stalking or intimidating the man which is an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

7. I should add that at the time that the behaviour towards the man occurred Mr Muldoon was facing the charge of kicking in the man’s shop window. Not only that, he was going to defend the charge and the man was going to be a witness. For that intimidation offence he got an eight months sentence from the magistrate which was once again suspended under s 12 of the Crimes (Sentencing Procedure) Act.

8. There is a helpful pre-sentence report prepared about Mr Muldoon which has been updated for today’s case. Mr Muldoon had no problem with alcohol until he was eighteen. He started drinking at that late age and quickly developed an alcohol problem. He was born and brought up in a loving and supportive family and has also made connections in the Portland area where he lives and, in fact, lives with another loving and supportive family at the moment. He left school in Year 8 but then went on to complete his Year 10 Certificate at the TAFE. He has diabetes and needs regular treatment for this.

9. His alcohol problem is reflected in his criminal record. He turned eighteen in 2002 but his first offence is not until 2004. He has been convicted of offensive language, affray and resisting arrest as well as drink driving and the two offences I have referred to. He has received the benefit of a number of bonds under s 9 of the Crimes (Sentencing Procedure) Act as well as one community service order.

10. He has made a number of attempts to deal with his alcohol problem including spending six months in the William Booth Bridge Program in Surry Hills. He recently, earlier this year, went to a detoxification program in the Blue Mountains called Kihilla Recovery Centre. He discharged himself about six weeks before completion because of financial problems. He generally has performed well under supervision so the Probation and Parole Service reports. He maintained his sobriety in the past for some period but relapsed seriously which is reflected in his criminal record.

11. Ms Pettet called Mr Muldoon to give evidence this morning. He is, as she says and the Crown Prosecutor acknowledges, an impressive young man who when sober will do well. He resides with the Goldspink family and is supported in his efforts by them. He has financial problems at the moment. His only income is from Centrelink but he has some debts which he needs to repay. He is regularly attending Alcoholics Anonymous. He helps the Goldspinks and most of his income goes to paying off his debts. He is well regarded in the community.

12. He acknowledged under cross-examination that the only way that he would be able to deal with his alcohol problem is with a good deal of support. He was not aware that the Probation and Parole Service can offer programs to assist him with his alcohol problem.

13. He acknowledged that when he was sober he was a good man and tried to help people including voluntary work. Hence Ms Pettet says that the best thing for her client are community service orders for each offence. It will mean that he is kept occupied out of trouble and supported in his efforts to rehabilitate himself. The trouble with that Mr Holles says is that he needs the support of a course or an agency to deal with his alcohol problem.

14. I should add here, which I overlooked, that he has good references from a number of people in the community.

15. The difficulty with the suspended sentence Ms Pettet argues is that if he breaches the bond attached to a suspended sentence, even in a way which is not trivial, then he is facing full-time custody which he has not had to undergo yet.

16. This is not an easy case to resolve but I have decided to resolve it by giving him a community service order accompanied by another bond under s 9 of the Crimes (Sentencing Procedure) Act. The reason that I do that is that a sentence under s 12 of the same Act essentially must be regarded as a prison sentence. That is the nature of the order. It happens that the Act provides that the sentence be suspended but it is a prison sentence. When I look at the penalties he has received so far, he has received a number of bonds but only one community service order. I regard it as, on balance, not appropriate yet although I was very close to thinking it was appropriate because of the nature of the two offences.

17. What I propose to do is to allow his appeal and to give him a community service order for 200 hours and a good behaviour bond for two years which will address his need to be occupied within the community and his need to be supported. If he breaches the good behaviour bond then he remains at risk because he will come before me and there are or will remain very few options other than a custodial sentence at that stage.

18. Accordingly, the formal orders which I make are these. In respect of the appeal of damage to property, under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence. Instead of that sentence, under s 9 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, I make an order directing Mr Muldoon to enter into a good behaviour bond for two years. The conditions of the good behaviour bond are these:

1. That he be of good behaviour.

2. That he attend the court if called upon to do so.

3. That he notify the registrar of the District Court of any change in his residential address.

4. That by next Friday, 20 August 2010, he attend the Probation and Parole Service office at Lithgow.

5. That he accept all reasonable recommendations and directions of the Probation and Parole Service, especially as they concern continuing alcohol counselling or treatment, random breath testing, employment and/or educational training, referral to anger management programs and referral to alcohol related programs.

19. In respect to the appeal from the offence of stalking or intimidation, under the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence. Instead of that sentence, under s 8 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment I make a community service order directing Mr Muldoon to perform community service for 200 hours. The supervising court for the community service order will be Lithgow Local Court and I direct Mr Muldoon to attend the Probation and Parole office on or before Friday, 20 August 2010 for the CSO.

HIS HONOUR: Now Ms Pettet, Mr Holles any other orders?

HOLLES: No your Honour.

PETTET: No thank you your Honour.

HIS HONOUR: Mr Muldoon, now you have heard what I said. Did you hear what I said?

OFFENDER: Yes.

20. You heard the arguments, both ways. Now, I have decided to give you a chance and not to have the prison sentence hanging over you. I could have easily gone that way but I think you are in a good place now. But as the Crown Prosecutor said, you need a lot of support to get over this alcohol problem. You are on a good track, but you need support to keep on that track. So for the kicking in the window, you have another good behaviour bond for two years. You have to remain out of trouble. If you do not, you will come back before me and, as I said, it will be difficult not to send you to gaol or at least give you a suspended sentence. If you change where you live, you have to tell the registrar of the District Court, write a letter. You have to turn up to Probation and Parole at Lithgow by next Friday, do you understand? Any time between now and next Friday.

21. The main thing is that you have to allow Probation and Parole to help you. I have read out the ways in which they can help you, with alcohol mainly. They will help with training, education and that sort of thing. They might want to do random breath tests and you have to co-operate with them. Let them help you, they are good at it, they know what they are doing. Do you understand?

OFFENDER: Yes.

22. The second one, where you bailed up Mr Davies, I have given you a community service order. You have done that before. You understand that and I have given you 200 hours which is going to keep you busy for a while. So stay where you are and what you are doing. It is good, but do accept the help from Probation and Parole. Alcohol is a big problem in a young man like you. They will help you. Do you understand?

OFFENDER: Yes.

23. All right have a seat. Good luck. Ms Pettet will tell you you have to go and sign for your bond in the registry there, she will take you there. It won’t happen straight away, a form has to be signed, printed and signed by me and so it might talk half an hour or so.

HOLLES: Your Honour just one matter occurred to me, I think I should raise it with your Honour because your Honour has effectively increased the length of the sentence and although the sentence imposed is a less..(not transcribable)..than the one that was originally imposed.

HIS HONOUR: A Parker warning.

HOLLES: A Parker warning, yes.

HIS HONOUR: What do you say Ms Pettet?

PETTET: For the bond I don’t see that it is appropriate or necessary.

HIS HONOUR: No, not for the bond but I think Mr Holles means the CSO.

HOLLES: Your Honour, I do.

HIS HONOUR: Yes, bring your client in and we can have a chat to him whilst he is - just let him know on the way in what’s going to happen.

PETTET: Yes your Honour.

HOLLES: I am sorry, it just occurred to me, it is probably a matter of caution.

HIS HONOUR: I think it is prudent.

24. Mr Muldoon, I have not changed my mind it is all right but the Crown Prosecutor correctly raised a technical matter which we should explain. When you were in the Local Court you got a prison sentence and now you have a community service order instead of that prison sentence. Some may view the length of the community service order like 200 hours as worse than the suspended sentence. So that, in a way, because you have appealed you have done worse. You probably regard yourself - and most people would - as having done better and that is probably right, but some people would say “Well 200 hours of community service is worse than a suspended sentence” and so I just have to check that you still want to proceed with your appeal. Ms Pettet can answer for you, if she has instructions.

PETTET: Yes, my client is happy to proceed with the appeal.

HIS HONOUR: That is noted, good, thanks Mr Muldoon.

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