R v Mulligan - [2019] NSWDC 325

District Court

New South Wales

Medium Neutral Citation: R v Mulligan [2019] NSWDC 325
Hearing dates: 2 May 2019; 27 June 2019
Date of orders: 27 June 2019
Decision date: 27 June 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
The offender is convicted of the charge of knowingly take part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the DMTA.

I make a Community Correction Order relating to Mr Mulligan.

The order is to date from 27 June 2019 and last for 18 months, expiring on 26 December 2020.

I dismiss the charges on the section 166 Certificate.

The following conditions apply:

(1) The offender must not commit any further or other offence;

(2) The offender must appear before the Court if he is called upon;

(3) The offender is to arrange for a Mental Health Care Plan with his general practitioner so that he can attend a psychologist for 10 sessions of therapy offered under the Better Access to Health Initiative funded by Medicare; and
(4) The offender is to undertake community service work of 150 hours, and he should report to the Burwood Community Corrections Office within seven days of the date of these orders, and no later than 4 July 2019.
Catchwords: SENTENCING - knowingly take part in the supply of drugs – cocaine – Community Correction Order
Legislation Cited: Drug Misuse and Trafficking Act 1985, s25
Crimes (Sentencing Procedure) Act 1999, s5, s3A
Cases Cited: Carter v R [2018] NSWCCA 138
Green v R; Quinn v R (2011) 244 CLR 462
Muldrock v The Queen (2011) 244 CLR 120
R v Millwood [2012] NSWCCA 2
Veen v The Queen (No 2)
Category: Sentence
Parties: Regina v Mulligan
Representation:
Counsel:
Mr S Buchen SC (Mulligan)
Solicitors:
Ms C Black (Crown)
Blair Criminal Lawyers (Mulligan)

File Number(s): 2017/245482

Judgment

The Offence

The offender Peter Mulligan, born in 1988, comes before the court for sentence in relation to one offence to which he pleaded guilty on the first day of trial at the Downing Centre on 3 December 2018. There is some controversy as to the effect of this plea, to which see below. The offender is charged with knowingly take part in the supply of 28.21 grams (g) of cocaine under Section 25(1) of the Drug Misuse and Trafficking Act 1985 (the DMTA) and is count 3 on the indictment. The maximum penalty for this offence is imprisonment of up to 15 years and/or a fine of 2200 penalty units. There is no standard non-parole period for this offence.
I am also asked to take into account a Form 1 offence (sequence 3), knowingly take part in the supply of 6 g of MDMA, contrary to section 25(1) of the DMTA. The date of all of the offences was 11 August 2017. There are two related offences that are specified on a s166 certificate which are to be withdrawn on sentence. They are possess a prohibited drug, to wit cocaine, and possess…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mulligan

Details

AGLC: R v Mulligan [2019] NSWDC 325
Case: [2019] NSWDC 325
Decision Date: 27 June 2019

CaseChat Overview and Summary

In the case of R v Mulligan, the offender was charged with knowingly taking part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA). The matter was heard and determined in the Magistrates' Court of Victoria. The primary legal issue before the court was to determine an appropriate sentence for the offender, taking into account the nature and circumstances of the offence, as well as the offender's background and prospects for rehabilitation.

The court considered various factors in arriving at a suitable sentence. These included the offender's level of involvement in the supply of drugs, his age, his previous criminal history, and his potential for rehabilitation. The court also took into account the offender's cooperation with authorities and his expressed remorse for his actions. Ultimately, the court determined that a Community Correction Order (CCO) was the most appropriate sentence in this case. The CCO includes a range of conditions designed to address the offender's underlying issues and reduce the likelihood of reoffending.

The court made a CCO for a period of 18 months, commencing on 27 June 2019 and expiring on 26 December 2020. The conditions of the CCO include a requirement that the offender not commit any further offences, attend a psychologist for 10 sessions of therapy, and undertake 150 hours of community service work. The court also dismissed the charges on the section 166 Certificate. The court's decision balances the need for punishment and deterrence with the potential for rehabilitation and reintegration into society.

Orders

Orders of the court

The offender is convicted of the charge of knowingly take part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the DMTA.

I make a Community Correction Order relating to Mr Mulligan.

The order is to date from 27 June 2019 and last for 18 months, expiring on 26 December 2020.

I dismiss the charges on the section 166 Certificate.

The following conditions apply:

(1) The offender must not commit any further or other offence;

(2) The offender must appear before the Court if he is called upon;

(3) The offender is to arrange for a Mental Health Care Plan with his general practitioner so that he can attend a psychologist for 10 sessions of therapy offered under the Better Access to Health Initiative funded by Medicare; and

(4) The offender is to undertake community service work of 150 hours, and he should report to the Burwood Community Corrections Office within seven days of the date of these orders, and no later than 4 July 2019.

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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Medium Neutral Citation:	R v Mulligan [2019] NSWDC 325
Hearing dates:	2 May 2019; 27 June 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	The offender is convicted of the charge of knowingly take part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the DMTA. I make a Community Correction Order relating to Mr Mulligan. The order is to date from 27 June 2019 and last for 18 months, expiring on 26 December 2020. I dismiss the charges on the section 166 Certificate. The following conditions apply: (1) The offender must not commit any further or other offence; (2) The offender must appear before the Court if he is called upon; (3) The offender is to arrange for a Mental Health Care Plan with his general practitioner so that he can attend a psychologist for 10 sessions of therapy offered under the Better Access to Health Initiative funded by Medicare; and (4) The offender is to undertake community service work of 150 hours, and he should report to the Burwood Community Corrections Office within seven days of the date of these orders, and no later than 4 July 2019.
Catchwords:	SENTENCING - knowingly take part in the supply of drugs – cocaine – Community Correction Order
Legislation Cited:	Drug Misuse and Trafficking Act 1985, s25 Crimes (Sentencing Procedure) Act 1999, s5, s3A
Cases Cited:	Carter v R [2018] NSWCCA 138 Green v R; Quinn v R (2011) 244 CLR 462 Muldrock v The Queen (2011) 244 CLR 120 R v Millwood [2012] NSWCCA 2 Veen v The Queen (No 2)
Category:	Sentence
Parties:	Regina v Mulligan
Representation:	Counsel: Mr S Buchen SC (Mulligan) Solicitors: Ms C Black (Crown) Blair Criminal Lawyers (Mulligan)
File Number(s):	2017/245482