R v Mulligan

[2016] NSWCCA 47

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Mulligan [2016] NSWCCA 47
Hearing dates:	14 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Before:	Leeming JA at [1] Johnson J at [2] Harrison J at [3]
Decision:	(1)    Appeal allowed. (2)    Quash the sentence imposed by Maiden DCJ on 30 October 2015. (3)    In lieu thereof sentence David Mulligan to a non-parole term of imprisonment of 12 months commencing on 1 April 2016 expiring on 31 March 2017 and to a balance of term of 6 months expiring on 30 September 2017.
Catchwords:	CRIMINAL LAW – appeal – Crown appeal against inadequacy of sentence – recklessly inflicting grievous bodily harm – where the sentencing judge imposed a suspended sentence – objective seriousness assessed as “a little below the mid line seriousness” – whether the sentence was manifestly inadequate – whether the failure to admit evidence of CCTV footage amounted to a denial of procedural fairness – whether the sentencing judge erred by failing to have regard to the standard non-parole period – whether the trial judge gave excessive weight to subjective features – whether the residual jurisdiction of the court to dismiss an appeal was enlivened
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Victims Rights and Support Act 2013
Cases Cited:	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
Category:	Principal judgment
Parties:	Crown (Applicant) David Mulligan (Respondent)
Representation:	Counsel: N Adams (Applicant) P Skinner (Respondent)   Solicitors: Solicitor for Public Prosecutions (Applicant) Australian Criminal Law Specialists (Respondent)
File Number(s):	2014/295812
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 30 October 2015 Before: Maiden DCJ File Number(s): 2014/295812

Judgment

1. LEEMING JA: I agree with Harrison J.

2. JOHNSON J: I agree with Harrison J.

3. HARRISON J: David Mulligan pleaded guilty in the Local Court on 7 May 2015 to recklessly inflicting grievous bodily harm in contravention of s 35(2) of the Crimes Act 1900. He was committed for sentence to the District Court. His Honour Maiden DCJ sentenced Mr Mulligan on 30 October 2015 by imposing a s 12 order of imprisonment for 15 months, suspended for the same period, to date from 30 October 2015 upon conditions that he be of good behaviour and pay $15,000 to the victim.

4. The offence carries a maximum sentence of 10 years imprisonment. A standard non-parole period of 4 years also applies. The Crown appeals against the sentence imposed by his Honour on several grounds. These are referred to later in these reasons.

Background

5. On Saturday 11 September 2014 the victim was walking his two boxer dogs along a street in suburban Alexandria. The dogs were each on a leash. Mr Mulligan was at this time also walking his small dog on a leash in the same street. Despite everyone’s best endeavours, 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 walked off.

6. Mr Mulligan took his dog into a car repair business close to where this incident occurred and left it there. He very soon emerged from these premises and walked back to the victim, who was still by the car with his dogs. Mr Mulligan then proceeded to pace back and forth along the footpath a number of times, coming to within a metre or so of the victim and then walking several metres away from him. 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 was unable to offer any effective response in self-defence as he had a dog leash in each hand. Mr Mulligan then retreated from this event, retrieved his own dog and left the area.

7. 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.

The sentencing proceedings

8. Mr Mulligan’s plea of guilty to the charge came before his Honour for sentence upon the basis of what were described as agreed facts. It is obvious that these facts were prepared with the benefit of CCTV footage of the incident obtained from a local commercial establishment. So much is clear from the agreed facts which in terms refer to what the CCTV material depicts.

9. Despite the existence of the agreed facts, Mr Wright for the Crown also sought to tender the CCTV material. Counsel for Mr Mulligan initially agreed to that course because he wanted to suggest that part of the written submissions upon which the Crown relied was at odds with what the CCTV footage revealed. It is instructive to record the discussion that ensued when that happened:

“WRIGHT: Your Honour, there’s also footage which I propose playing at this point unless your Honour prefers not to. It’s only two minutes.

HIS HONOUR: But the facts are agreed, aren’t they?

WRIGHT: The facts are agreed, your Honour.

HIS HONOUR: Well why would I want to look at the video if the facts are agreed?

WRIGHT: It adds colour and it’s a quick way of assessing what actually occurred. The footage doesn’t in any way contradict--

HIS HONOUR: That’s not my job, with respect, Mr Crown. That’s been agreed.

WRIGHT: I know your Honour, but I do propose playing it unless your Honour prefers not to.

HIS HONOUR: Well I don’t see how it’s relevant frankly if you’ve agreed facts.

CHHABRA: Your Honour, if I could be heard for one moment. Ordinarily I would agree there’s no need to play it. However, the last paragraph on the first page of my friend’s submissions indicates a version of events that I do not agree with, and a viewing of the CCTV footage in my respectful submission would dispel that narrative.

HIS HONOUR: Can you just take me to that?

CHHABRA: Yes, your Honour. The Crown submissions, final paragraph on the first page starting with the words ‘he did not’.

HIS HONOUR: Yes, I see. Mr Crown, did you draft – well they’re obviously your submissions are they?

WRIGHT: Yes, they’re my submissions your Honour.

HIS HONOUR: What do you mean by ‘he turned around and blithely walked right alongside the two larger dogs’?

WRIGHT: It’s clear from the footage that that’s how it appears.

HIS HONOUR: It’s clear from the sentence. What’s that mean?

WRIGHT: Pardon me, your Honour?

HIS HONOUR: What does it mean ‘and blithely walked right alongside the two larger dogs’?

WRIGHT: Well your Honour, the fourth-last paragraph of the agreed facts states that the victim was motionless against – with his dogs seated. He was standing still with the dogs seated. I understand my friend’s version is otherwise and the offender indeed will also say that he was walking.

HIS HONOUR: Let’s just have a look at the facts. The last paragraph on the first page of your submissions, what paragraph of the facts does that relate to?

WRIGHT: The seventh-last paragraph in the agreed facts, your Honour, starting ‘as the offender started to walk past the victim.’ I gather my friend is going to suggest that the victim was walking and the victim’s dogs jumped--

HIS HONOUR: I don’t propose to accept these submissions in this form. You are bound to put in here submissions based on the evidence. In this case it’s the agreed facts. What you have put there is an interpretation that at first glance I can’t see is open to the Crown whose duty it is to put the facts objectively and in a straightforward manner.

WIRGHT: With respect, your Honour, that’s what I’ve done and I’d ask your Honour to view the footage.

HIS HONOUR: I don’t agree. Anyway, I’ll deal with your submissions later.”

10. In due course, Mr Mulligan gave evidence. It is necessary to refer to some of what he said both as evidence-in-chief and in cross-examination as follows:

“Q. It’s the case that you returned to the victim at some point and you threw three strong punches at his head and face. Correct?

A. Yes I did.

Q. Why did you do that?

A. I feared for my dog’s safety. After what happened already, I was just was fearing for my dog’s safety. I just wanted the guy just to leave – just to leave me alone. I feared for my dog and for my own safety as well.

Q. And there was an exchange of words, correct?

A. Yes.   

Q. And he’d asked you to walk away. He said to you walk away, right?

A. Yeah.

Q. What else was said?

A. On the occasion before this happens, I asked him just to control the dogs to which he then turned around and told me to get fucked you Irish cunt before I smash your face in – that was his exact words to me. Those exact words. Those are the honest exact words…(not transcribable)...but that was the exact words that were said.

…

Q. On 27 September last year during this incident with the dogs, do you agree you said to tie your dogs up, to the victim?

A. ...(not transcribable)…

Q. And what was his response?

A. He just kept – he just kept calling me for a fight. Kept calling me. Kept calling me. Saying come on. Come on let’s fight. Let’s fight. Just constantly. He was asking for…(not transcribable)…

Q. Who is he?

A. The guy carrying on.

Q. The victim?

A. The victim yeah.

Q. The victim said let’s fight?

A. Yeah. That’s all he kept saying to me. He kept abusing me because I was Irish. He kept saying he could not understand me.

Q. Didn’t the victim say to you, I’ve got nothing to tie them up to?

A. He said that to me but he was – constantly asking me for an argument – he did say that, he had nothing to tie them to...(not transcribable)…

Q. The victim at no stage said to you, let’s fight, I put to you?

A. He did. He did.

Q. I put to you, the victim at no stage, said to you to get fucked or I’ll smash your head in?

A. He – he said that to me. He called me an Irish cunt, he told me, he said he’s going to smash my face in. That’s why he waited outside the garage.”

11. Following that and some other evidence, his Honour returned to the issue of the tender of the CCTV material. The Crown maintained that it was in the circumstances now essential that his Honour view that material, having regard to the asserted need to consider it in the light of Mr Mulligan’s evidence of what was said to him, which extended beyond the agreed facts, and to compare it with his response to the victim as depicted. The transcript of what occurred at that point in the proceedings is relevantly in these terms:

“WRIGHT: I maintain my submissions. I note your Honour’s opposition to the language in my submissions and I take the point but I do press them and--

HIS HONOUR: I think you should re-do them frankly. I don’t think they properly comply with the duties of a prosecutor.

WRIGHT: Your Honour I disagree and out of procedural fairness I would ask your Honour to view the footage if that is the case.

HIS HONOUR: The footage is not before me, is the point.

WRIGHT: It is in the Crown bundle.

HIS HONOUR: You have--

WRIGHT: It is at tab 9.

HIS HONOUR: No it is not. I don’t want to see it, there are agreed facts.

WRIGHT: I don’t have anything further to add in that case. I have made my submissions--

HIS HONOUR: Why should the Court here be put to the situation of having to view film where I will have to make a finding of facts when there are agreed facts. Either the facts are agreed or they are not agreed and if there is an issue on the facts I should have been told.

WRIGHT: In fairness to all parties I think there was difference on the facts at an earlier stage and it appeared to be resolved. My only purpose in playing the footage was to give colour to what is--

HIS HONOUR: Mr Crown I don’t accept that. You have based your submissions on what I assume was in the -- or what you saw in the video and not from the agreed facts.

WRIGHT: It is from both your Honour.

HIS HONOUR: I beg your pardon?

WRIGHT: It’s from both your Honour. Indeed we have gone past that point now because the offender has given evidence that completely contradicts what were agreed facts, injecting what appear to be oral threats--

HIS HONOUR: I have given you that opportunity, you don’t wish to take it so what are your submissions?”

Grounds of appeal

12. It seems clear that it was in the context of that procedural background that the Crown’s original grounds of appeal were notified by its notice of appeal filed on 4 November 2015. Those grounds were as follows:

1. The sentence pronounced was manifestly inadequate.

2. The judge erred in declining to view CCTV footage of the offence.

3. The judge contravened s 95 of the Crimes (Sentencing Procedure) Act 1999 by ordering compensation to be paid as a condition of the bond.

13. The notice of appeal contained the reservation that the Crown would also rely “upon such additional or varied grounds as may be filed later.”

14. On 23 February 2016 the Crown notified that it proposed to rely upon amended grounds of appeal. They are as follows:

1. The sentence imposed was manifestly inadequate.

2. His Honour erred by failing to have regard to the provisions of s 54B and 54C of the Crimes (Sentencing Procedure) Act 1999.

3. His Honour erred in reducing the head sentence by a further 16.6% after allowing 25% discount for the plea, by virtue of what his Honour described as “exceptional/special circumstances.”

4. His Honour erred by failing to adequately assess the objective seriousness of the offending.

5. His Honour contravened s 95 of the Crimes (Sentencing Procedure) Act 1999 by ordering the respondent to pay compensation as a condition of the bond attached to the suspended sentence.

15. In his opening submission to this Court the Crown indicated that “a significant aspect of ground one is related to his Honour’s refusal to view the CCTV footage”. The Crown advised that Mr Mulligan had been put on notice that it proposed to play or to tender the CCTV material in this Court for consideration as part of the appeal. The Crown therefore proceeded to take the Court to the tension between Mr Mulligan’s oral evidence before the sentencing judge that raised the spectre of provocation on the one hand and the complete absence of any material in the agreed facts going to that issue on the other hand.

16. Having regard to all of the Crown’s grounds of appeal and to the way in which the argument proceeded in this Court, it is apparent that both parties were content to argue that his Honour’s rejection of the CCTV material remained a live issue for consideration. In this Court the view was taken, in accordance with the approach urged by the Crown, that the CCTV material should be admitted and viewed. It was made clear, however, that Mr Mulligan was at liberty to continue to argue that this Court should exclude the CCTV material from our consideration. The matter thereafter proceeded upon that basis.

17. In these circumstances it is convenient to deal with his Honour’s rejection of the CCTV footage first.

CCTV footage rejection

18. The Crown contended that his Honour’s rejection of the CCTV footage was an error. Mr Mulligan asserted in contrast that it was “entirely orthodox and within principle”.

19. In my opinion his Honour fell into error when he denied the Crown’s attempt to rely upon the CCTV material. There does not appear to have been a formal tender of that material or a formal rejection of it; for example, his Honour did not give any considered written reasons for his decision to refuse the Crown’s attempt to rely upon it. It would, however, be a triumph of form over substance not to conclude that the Crown had asked his Honour to take the material into account in sentencing Mr Mulligan and that his Honour refused to do so.

20. That refusal was in the circumstances a denial of procedural fairness. That is for at least two reasons. First, Mr Mulligan’s oral evidence raised the suggestion that he was provoked by what the victim said to him. That was based upon a version of the conversation between the victim and Mr Mulligan that was not included in the agreed facts. To the extent that the CCTV material potentially informed the suggestion that Mr Mulligan might have been provoked, it was material that the Crown was entitled to call in aid of a submission to rebut it.

21. Secondly, his Honour was generally critical of the Crown’s submissions because they appeared to his Honour to go beyond what was included in the agreed facts. That was so even though the agreed facts specifically mentioned the CCTV material. It was unfair to the Crown for his Honour to have adopted the position that the Crown’s submissions were somehow impermissibly extravagant or, by implication, inaccurate or misleading, if his Honour was not at the same time prepared to permit the Crown to produce the very material that would arguably have justified what the Crown had submitted. It is not without significance in this respect that his Honour specifically referred to the fact that in his view the Crown’s submissions did not comply with the duties of a prosecutor. It was unfair at that point for his Honour to approbate his criticism of the Crown but coincidentally to reprobate the Crown’s practical ability to respond to it.

22. His Honour’s error alone enlivens the requirement that this Court consider whether or not Mr Mulligan should be re-sentenced. Notwithstanding that fact, it remains necessary to consider the balance of the Crown’s grounds of appeal.

Reference to special or exceptional circumstances

23. His Honour’s sentencing remarks contain the following reference:

“This is a matter where exceptional circumstances apply. It is conceded that special circumstances are appropriate and the court can show greater leniency and it does so in respect of this particular matter.”

24. His Honour imposed a non-custodial sentence. It follows that he neither specified a non-parole period nor any balance of term. The usually understood notion of special circumstances in s 44(2) of the Crimes (Sentencing Procedure) Act, justifying a departure from the statutory ratio of parole and non-parole periods, had no part to play in his Honour’s deliberations.

25. Doing the best I can, it seems to me that his Honour was doing no more and no less than attempting to ameliorate the harshness of the sentence he was required to impose by extending leniency to Mr Mulligan. In the course of explaining that he proposed to do so, his Honour fell into the language of special or exceptional circumstances. That is not of itself an error. By way of contrast, however, the consequent reduction of the sentence by a significant amount in order to extend leniency arguably did erroneously infect the sentencing outcome. In my view his Honour’s obvious sympathies for Mr Mulligan were not in the circumstances of this case “reasonably excited”, even bearing in mind that “prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges”: see R v Osenkowski [1982] 5 A Crim R 394. The Crown’s complaint about the sentence is therefore best addressed in consideration of the Crown’s principal challenge to its adequacy.

Sections 54B and 54C Crimes (Sentencing Procedure) Act

26. Section 54B(2) of the Crimes (Sentencing Procedure) Act is as follows:

“54B Consideration of standard non-parole period in sentencing

(2)    The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.”

27. Section 54C of the Crimes (Sentencing Procedure) Act provides relevantly as follows:

“54C Court to give reasons if non-custodial sentence imposed

(1)    If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.

(2)    The failure of a court to comply with this section does not invalidate the sentence.”

28. Nowhere in his sentencing remarks did his Honour refer to the standard non-parole period for the offence in question. The Crown contended that s 101A of the Crimes (Sentencing Procedure) Act should apply. That section provides as follows:

“101A    Effect of failure to comply with Act

A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.”

29. It is an error for a sentencing judge to fail to take account of a specified standard non-parole period in determining an appropriate sentence. However, the mere failure by a sentencing judge specifically to refer to a matter to which consideration ought to have been given, or to which some reference might merely have been expected, such as a standard non-parole period, does not of itself amount to an error or constitute a ground of appeal. Rather, the failure to do so is a matter that might possibly or even reliably inform a different ground of appeal, such as a failure to give reasons or a complaint that a particular sentence is manifestly excessive or inadequate. That is what the Crown says occurred here. The Crown in effect contends that even if his Honour’s failure to refer to the standard non-parole period was not itself a discrete error, the absence of any mention of it bespeaks or at least suggests error, subsisting in the imposition of a sentence that was manifestly inadequate. The same may be said of a failure to record reasons for imposing a non-custodial sentence.

30. It is of course well accepted that a standard non-parole period is an important marker to be taken into account in the sentencing process. In my opinion, however, the proper characterisation of a failure to refer to a standard non-parole period is not as an error as such but as one possible indication that the sentence in question may be demonstrably erroneous. The issue of whether a standard non-parole period is or is not specifically mentioned involves no independent assessment or process of evaluation, in contrast, for example, to the expression of an opinion or finding with respect to the objective seriousness of an offence. I note in this context that the Crown specifically submitted that his Honour’s “failure to comply with sections 54B and 54C [was]... another step in a significantly flawed sentencing process.” In my opinion, his Honour’s failure to refer in terms to the standard non-parole period and his failure to record his reasons for ordering a non-custodial sentence in the present case should be treated in that way. The very sentence imposed by his Honour evidences a failure properly to take account of these things.

31. I would also in this context wish specifically to record that I would not lightly or hastily come to a conclusion that an experienced criminal lawyer and judge such his Honour would have been unaware of the importance of a standard non-parole period in sentencing a person for a serious offence where a standard non-parole period applied. The same may be said of the need to record reasons for imposing a non-custodial sentence. It is important to note that judges in all jurisdictions in general, but in the District Court in particular, with their significant workloads and correspondingly onerous responsibilities, ought not to be criticised by overly technical analyses of the minutiae of their remarks when somewhat broader and more significant factors are at play. In the present case it is also important to bear in mind that his Honour’s error was not in failing to mention or refer to the relevant standard non-parole period or to record reasons but in the extension of leniency that in the end could not be justified.

The sentence was manifestly inadequate and the objective seriousness of the offence was not adequately assessed

32. It is convenient to consider these two grounds together.

33. His Honour expressed the view that the offending was “a little below the mid line seriousness.” It is apparent that his Honour understood, and gave consideration to, the importance of assessing where the particular offence lay in the range of objective seriousness for offences of this type. The Crown does not complain that his Honour’s assessment was erroneous, but does complain that the assessment could not justify the sentence that was actually imposed.

34. With the significant advantage of the CCTV footage, which his Honour ought to have viewed, it is apparent that Mr Mulligan was the aggressor. The victim was a man approaching 60 years of age, inoffensively walking his dogs on a Saturday morning. From shortly following the initial incident with the dogs, he remained stationary, leaning passively against a motor vehicle during the events complained of, never offering or implying a physical threat or resistance of any kind. Although Mr Mulligan’s height and weight were matters of apparent contention before his Honour, it is now clear that he was well built and muscular and obviously very fit. In my view, Mr Mulligan also appeared ominously familiar with boxing or fighting, having regard to the way in which he shaped up to the victim before striking him. Mr Mulligan also somewhat ironically presented himself with several opportunities to retreat from the looming confrontation but he unfortunately chose to take advantage of none of them. The ferocity of the assault is clearly to be seen in the seriousness of the damage that his punches inflicted.

35. His Honour made a series of findings that are impugned by the Crown. His Honour considered that Mr Mulligan was unable to control his emotions because he considered that his dog was at risk. Whilst the former is patently correct, the latter is demonstrably false. Mr Mulligan’s dog was well removed from any danger long before the assault took place. Mr Mulligan was also not, contrary to his Honour’s finding, small or of a very small build. Nor, to the extent that it could ever have been relevant, was the victim strongly built around the shoulders. His Honour felt that he was unable to determine who between Mr Mulligan or the victim was more responsible for the initial confrontation. The events depicted in the CCTV footage make it clear that Mr Mulligan was wholly responsible for it. Even if it were accepted for the sake of argument that the victim had goaded or taunted Mr Mulligan in the way suggested by him in his evidence before his Honour, the response it generated was wholly disproportionate to anything that might have been said.

36. To some extent, however, all of this is beside the point. His Honour’s assessment of the level of seriousness of the offence is not put in issue by either party in this Court. It was conceded on behalf of Mr Mulligan in the sentencing proceedings that it was open to his Honour “to find the offence [fell] within the mid-range of objective seriousness” and he did not seek to resile from that contention in this Court. Factors tending to inform the objective seriousness of the offence do not in the particular circumstances of this appeal therefore warrant undue analysis. What does require consideration in my view is the manner in which Mr Mulligan’s subjective case was utilised by his Honour in arriving at his conclusions. The Crown contended that his Honour gave excessive weight to subjective features. I agree.

37. His Honour described Mr Mulligan’s subjective features as “overwhelming”. The Crown’s written submissions dealt with that description in terms that warrant reproduction here:

“The Crown submits that his Honour’s hyperbole is in itself a reflection of his failure to balance [Mr Mulligan’s] subjective features with all of the other sentencing considerations, particularly the objective seriousness of the offending. It is true that [Mr Mulligan] was able to place evidence before the court which was favourable to his prospects of rehabilitation, but none of it could be described as exceptional let alone ‘overwhelming’. In coming to his conclusion about [Mr Mulligan’s] subjective matters, his Honour paid little regard to [his] prior history of convictions for violence and antisocial behaviour, one [example] of which resulted in a prison sentence in his native Ireland. Furthermore, [Mr Mulligan] has been convicted of two such offences since his arrival in Australia in 2008, the most recent of which was May 2015.”

38. The Crown conceded that Mr Mulligan’s criminal history was relatively minor when compared to the offence for which he was sentenced but was nevertheless inconsistent with an overwhelming subjective case. His Honour would have been aware that Mr Mulligan had received the benefit of a suspended sentence in Ireland on a charge of assault. Since then Mr Mulligan has committed further offences involving antisocial, offensive and aggressive conduct. The Crown contended that it was in these circumstances “contrary to principle” to impose a suspended sentence.

39. Nor was the expert medical evidence of particular assistance to Mr Mulligan. His Honour correctly ascertained that Mr Mulligan’s “emotions took over” when the offence was committed. Dr Nielssen did not, however, affirmatively diagnose impulse control disorder, but instead considered a form of such a disorder as a possible diagnosis. His Honour did not find, nor is it suggested by Mr Mulligan that he ought to have found, that he was suffering from a medical condition that effectively explained his offending behaviour.

40. In my opinion, the sentence imposed by his Honour was manifestly inadequate. In expressing that view I acknowledge that a claim of manifest inadequacy requires this Court to be satisfied that the sentence imposed by his Honour was unreasonable or plainly unjust: Markahan v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. The seriousness of the assault is adequately reflected in the injuries that it caused. The offending cannot be explained and certainly cannot be excused. Even if Mr Mulligan were entitled to the benefit of some kind of provocation, his violent response was entirely disproportionate. In the way in which the Crown approached this point, the degree of provocation did not sufficiently mitigate the seriousness of the offence to justify the lenient sentence actually imposed. Mr Mulligan’s modest criminal history is not particularly significant in the scheme of things but neither does it positively assist him and it certainly could not generate an enthusiasm for leniency of the type that his Honour was minded to extend.

Section 95 Crimes (Sentencing Procedure) Act

41. Section 95 of the Crimes (Sentencing Procedure) Act is as follows:

“95 Good behaviour bonds

A good behaviour bond:

(a)   must contain a condition to the effect that the offender to whom the bond relates (the ‘person under bond’) will appear before the court if called on to do so at any time during the term of the bond, and

(b)   must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and

(c)   may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond:

(i)    to perform community service work, or

(ii)    to make any payment, whether in the nature of a fine, compensation or otherwise.”

42. The Crown submitted that his Honour had no power to require Mr Mulligan to pay compensation to the victim as a condition of the bond. That submission is not contested. Having regard to the view I have formed about the adequacy of his Honour’s sentence, and my conclusions concerning re-sentencing, it becomes unnecessary to consider the effect, if any, of this error upon the sentencing outcome. I observe in passing, however, that his Honour could legitimately have made an order for compensation pursuant to s 97 of the Victims Rights and Support Act 2013.

The residual discretion

43. The Crown bears the onus of negating any reason why the residual discretion of this Court should be exercised to dismiss the appeal even though appellable error has been demonstrated: CMB v Attorney-General for New South Wales [2015] HCA 9; (2015) 317 ALR 308.

44. In R v O’Connor [2014] NSWCCA 53, Adamson J commented upon the residual discretion as follows:

“[85] This Court retains a residual discretion in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act to refuse to interfere in a sentence, even if error has been demonstrated and manifest inadequacy established: Griffiths v The Queen (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.

[86] This Court is obliged to consider the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37 at [24]; Reeves v The Queen [2013] HCA 57 at [10], [12], [60]-[61].

…

[88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.

[89] Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markahan v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J...”

45. The Crown contended that there had been no relevant delay in the institution of the appeal, and no delay in the disposition of the appeal appeared to be imminent. The Crown’s appeal was filed and served less than a week following the sentence proceedings and was listed for hearing in this Court within five months thereafter. The errors established by the Crown were not caused or perpetuated by it. Moreover, there is no post-sentence material from Mr Mulligan that affects or changes any of the matters that were current when he was sentenced.

46. Mr Mulligan submitted that this was a case in which there remained scope for the extension of leniency. Mr Mulligan could point to all but three of the mitigating factors referred to in s 21A(3) of the Crimes (Sentencing Procedure) Act, indicating the availability of grounds upon which this Court could exercise a very favourable sentencing discretion.

47. Section 5D(1) of the Criminal Appeal Act provides that on a Crown appeal against a sentence this Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.” This Court has what has been described as a lively discretion to refuse to intervene, even where error has been shown.

48. In my opinion, the predominant consideration in the particular circumstances of this case should be the sentence that was actually imposed upon Mr Mulligan. It was manifestly inadequate. An exercise of the residual discretion in this case would not give effect to the need either for general or specific deterrence. It is difficult to accept that general community standards would sit comfortably with a decision that confirmed the appropriateness of the original sentence.

The proper sentence

49. Section 68A of the Crimes (Appeal and Review) Act 2001 is in these terms:

“68A Double jeopardy not to be taken into account in prosecution appeals against sentence

(1)   An appeal court must not:

(a)   dismiss a prosecution appeal against sentence, or

(b)   impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal.”

50. Section 68A was authoritatively considered by a five judge bench in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7. At [96]-[98], Spigelman CJ said this:

“The Substituted Sentence

[96] The second element of double jeopardy, being the constraint on the sentence the Court imposes if it decides to intervene, is well established. It has been expressed in a number of different formulations:

●    ‘towards the lower end of the range of available sentences’ (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J);

●    ‘the least sentence that could properly have been imposed’ (R v Rose NSW Court of Criminal Appeal, 23 May 1996, unreported per Gleeson CJ, applied in R v Jurisic (1998) 45 NSWLR 209 at 232);

●    ‘one which is at the bottom of the range’ (R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] per Dunford J);

●    ‘usually requires a discount to be applied by this Court ... the extent of that discount varies according to the individual circumstances subjective to the respondent’ (R v Hallocoglu (1992) 29 NSWLR 67 at 80 per Hunt CJ at CL);

●    ‘a sentence that is somewhat less than the sentence it considers should have been imposed at first instance’ (R v Allpass (1993) 72 A Crim R 561 at 562 per Gleeson CJ, Hunt CJ at CL and Mclnerney J);

●    ‘there is no tariff for the discount for the double jeopardy involved’ (Comptroller-General of Customs v D’Aquino Bros Pty Ltd (1996) 130 FLR 383 at 403; (1996) 85 A Crim R 517 at 538);

●    ‘generally less than that which should have been imposed by the sentencing court’ and ‘generally ... towards the lower end of the available range’ (R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692 at [70] per Wood CJ at CL, with whom Meagher JA and Bell J agreed).

[97] It is unnecessary to attempt to reconcile these different formulations. The basic principle was well established and, as the joint judgment of Gleeson CJ, Hunt CJ at CL and Mclnerney J in Allpass supra expressly stated at 562, the reduction in the sentence that the Court considered ought to have been imposed is an application of the double jeopardy principle.

[98] This aspect of the concept of double jeopardy was not controversial in the submissions in this Court. It was clearly a sentencing principle applicable to each individual case in which the exercise of a discretion under s 5D arises. It has been removed by s 68A. The intention to do was made quite clear in the Second Reading speeches, where each Parliamentary Secretary said in each House:

‘... even where appeal courts have decided to intervene and impose a new sentence, under this principle they have historically imposed sentences that are less than that which they would otherwise have imposed, again on the basis that the prisoner is facing being sentenced for the second time. The Double Jeopardy Law Reform Working Group, which reported to COAG, considered this issue. They gave weight to the argument that, where an appeal court finds that a sentence imposed at first instance is inadequate, but through the operation of sentencing principles (in particular the principle of ‘sentencing double jeopardy’) the inadequacy remains uncorrected, this does not serve the community’s interest in seeing crimes appropriately punished.

The Government agrees, and the provision in the bill will make sure that where an offender has received too lenient a sentence because of an error made by the sentencing court, an appropriate sentence will be imposed on appeal, because the court will not be bound to give an ‘automatic discount’ because the offender is being sentenced a second time for the same offence.’” [Emphasis added]

51. This position has been reaffirmed in decisions since then. For example, McClellan CJ at CL said this in R v Parkinson [2014] NSWCCA 89 at [49] and [51]:

“[49] The principles which have traditionally applied to a Crown appeal against sentence are well known. They were summarised in R v Wall (2002) NSWCCA 42 at [70]. However, following the enactment of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 those principles have changed. Although considerations relating to matters of double jeopardy are no longer relevant this Court retains a discretion not to intervene: R v JW [2010] NSWCCA 49.

…

[51] Although before the amending Act sentences at the lowest end of the range should be imposed by this Court this is no longer the case: R v JW [2010] NSWCCA49...”

52. To the extent that any different view may appear to have been expressed in other cases, it should be disregarded. For example, the matter was considered by this Court in R v Mereb; R v Younan [2014] NSWCCA 149 at [30]-[31] as follows:

“[30] The Crown accepted that as a Crown appeal, the Court needed to be mindful of the principles which govern Crown appeals generally. The Crown accepted that the relevant principles were summarised by Wood CJ at CL (with whom Meagher JA and Bell J agreed) in R v Wall [2002] NSWCCA 42 at [70]:

‘70 ... it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a)...

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.’

[31] Leaving aside the reference to double jeopardy (Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638), those principles remain valid and were restated by the plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462...”

53. However, it is apparent that the Court in that case was not referred to R v JW. Moreover, In R v Lin [2014] NSWCCA 254, Bellew J referred to the lesser sentence principle with a reference to R v Holder & Johnston at 256, but his Honour similarly made no reference to R v JW. Inasmuch as it is clear that the reference in R v Holder & Johnston at 255-256 is in fact a direct application of the double jeopardy principle, it has now been decisively dealt with by s 68A(1)(b) and the unanimous five judge decision in R v JW. The decisions in R v Mereb and R v Lin have to be read in light of the fact that the authoritative decision on this topic in R v JW was not brought to the attention of the Court.

54. Although it is common in cases such as this to be referred to statistical material and comparable cases, the only statistics available in this Court were derived from sentences imposed in the Local Court. Those statistics were inapplicable to proceedings in the District Court. Nevertheless, counsel then appearing for Mr Mulligan relied on them (without correction by the Crown) in support of a submission that “some 63 percent of such matters are dealt with by way of other than custody and some 32 percent by way of suspended sentence, suspended sentence with supervision or intensive correction order.” To be clear, it is not suggested that the erroneous reliance on Local Court statistics before the sentencing judge was other than inadvertent. However, as has been said on more than one occasion, care needs to be taken in order not to misuse sentencing statistics: see Knight v R [2015] NSWCCA 222 at [3]-[13] and [86]-[89] and, for an error not dissimilar to the present case, see Peiris v R [2014] NSWCCA 58 at [87]-[97]. This appeal is another example.

55. The random and unpredictable nature of the violence perpetrated upon an innocent victim in this case necessarily attracts a significant degree of general deterrence. Correspondingly, even though the pre-sentence report prepared by Ute Geissler dated 5 August 2015 assessed Mr Mulligan as having a low risk of re-offending, and accepting that Mr Mulligan pleaded guilty to the offence, there remains a need for specific deterrence, particularly having regard to his demonstrated inability to control his violent impulses. There is also a need to reflect an appropriate degree of retribution when the difficult ongoing condition of the victim is taken into account.

56. In my opinion a proper starting point is a sentence of 2 years imprisonment. Mr Mulligan is entitled to a 25 percent discount for his early guilty plea. He is also entitled to a variation of the statutory ratio, having regard to what I consider to be a need for psychological intervention and counselling of the type identified by Ms Geissler.

Orders

57. I consider that the following orders should be made:

1. Appeal allowed.

2. Quash the sentence imposed by Maiden DCJ on 30 October 2015.

3. In lieu thereof, sentence David Mulligan to a non-parole term of imprisonment of 12 months commencing on 1 April 2016 expiring on 31 March 2017 and to a balance of term of 6 months expiring on 30 September 2017.

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Decision last updated: 01 April 2016