R v Mulholland

Case [2023] NSWLC 10


Local Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Mulholland [2023] NSWLC 10
Hearing dates: 26 September 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction:Criminal
Before: Donnelly LCM
Decision:

Aggregate sentence imposed see [78]-[79]

Catchwords:

SENTENCING – domestic violence offences – use of Form 1 to take into account other offences – principal offence intentionally choke a person without consent – 8 offences placed on a Form 1 including common assault, 3 offences of intimidation and 4 offences of contravene an apprehended violence order – magnitude of Form 1 matters – whether it is appropriate to take further offences into account – application of guideline judgment and Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115

SENTENCING – s 37 Crimes Act – intentionally choke without consent – assessment of objective seriousness – offence committed of long duration, with a high degree of violence and consequential physical harm to the victim – no requirement to make a finding whether offence fell in the low, mid or high range

SENTENCING – jurisdictional limits – requirement of court to determine the sentence by reference to the maximum penalty prescribed and not to have regard to the jurisdictional limit of the Local Court – determined sentence exceeds jurisdictional limit – requirement to apply Park v The Queen (2021) 273 CLR 303 – sentence reduced to jurisdictional limit

SENTENCING – aggregate sentence – requirement of court to apply the principle of totality with reference to the totality of offending without reference to concurrency and cumulation

Legislation Cited:

Crimes Act1900 (NSW) ss 37(1A), 61,

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 4A, 4B, 5, 7, 22, 32, 35A, 44, 53A, 66, 68

Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 8

Cases Cited:

Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115

Aryal v R [2021] NSWCCA 2

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Bell v R [2019] NSWCCA 251

Burgess v R [2019] NSWCCA 13

Cherry v R [2017] NSWCCA 150

CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R; DM v R [2022] NSWCCA 156

Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31

FL v R [2020] NSWCCA 114

GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65

Hiron v R [2007] NSWCCA 336

Imbornone v R [2017] NSWCCA 144

Kaderavek v R [2018] NSWCCA 92

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Munro v R [2006] NSWCCA 350

Park v The Queen (2021) 273 CLR 303; [2021] HCA…

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Details
AGLC
R v Mulholland [2023] NSWLC 10
Case
[2023] NSWLC 10
Decision Date

CaseChat Overview and Summary

The case of R v Mulholland involved the defendant being sentenced for a range of domestic violence offences, including intentionally choking a person without consent, along with other related offences. The sentencing hearing took place in a relevant Australian court, where the presiding judge was required to determine an appropriate sentence that adequately reflected the seriousness of the offences and took into account the totality of the defendant's offending behaviour.

The court faced the task of deciding how to appropriately weigh the various offences in determining the sentence, including whether to consider other charges through the use of a Form 1. The judge needed to assess the objective seriousness of the choking offence, which involved a significant degree of violence and resulted in physical harm to the victim, and then decide on a suitable sentence within the prescribed legal framework. The court also had to consider whether the aggregate sentence imposed should be reduced to fit within the jurisdictional limits of the court.

In reaching its decision, the court considered the guidelines set out in relevant case law, including Abbas v R, and took into account the principle of totality as it pertains to sentencing. The court determined that the sentence for the principal offence was appropriately severe given its gravity, but had to be mindful of the jurisdictional limits of the court. Consequently, the court applied the principles established in Park v The Queen to adjust the sentence to fit within the permissible range. The final orders of the court included an aggregate sentence that was carefully calculated to reflect the totality of the defendant's offending while adhering to the legal constraints and ensuring justice was served.

Orders

Orders of the court

Aggregate sentence imposed see [78]-[79]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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