MICHAEL GEORGE MULLIGAN AND NEW ZEALAND POLICE

[2024] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-33

[2024] NZHC 2634

BETWEEN

MICHAEL GEORGE MULLIGAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 September 2024

Appearances:

P K Noorland for Appellant

S N McKenzie for Respondent

Judgment:

12 September 2024

JUDGMENT OF OSBORNE J

Introduction

[1]    Michael Mulligan, now 39 years old, was convicted of possession of methamphetamine for supply,1 unlawful possession of a firearm,2 and unlawful possession of ammunition.3 On 23 April 2024, Mr Mulligan pleaded guilty in response to a sentencing indication, whereby a starting point of three years and six months’ imprisonment was indicated. That comprised two years on the methamphetamine charge; a one year’s uplift on the firearms charge; and a six-month uplift for prior offending.

[2]    The appellant was sentenced in June 2024 by Judge Harvey to two years and three months’ imprisonment.4 He now appeals that decision on the ground the

1      Misuse of Drugs Act 1975, s 6(1)(f) — maximum penalty life imprisonment.

2      Arms Act 1983, s 45(1) — maximum penalty four years’ imprisonment or $5000 fine.

3      Section 45(1) — maximum penalty four years’ imprisonment or $5000 fine.

4      R v Mulligan [2024] NZDC 14633.

MULLIGAN v NEW ZEALAND POLICE [2024] NZHC 2634 [12 September 2024]

sentence was manifestly excessive. The appeal focuses on the appellant’s personal mitigating features.

Facts — the offending

[3]    On 25 March 2013, a final protection order had been served on Mr Mulligan. One of the conditions was that he not possess firearms or ammunition.

[4]    On 1 February 2024, Mr Mulligan was driving a car which was stopped by police. During an initial warrantless search and a subsequent search pursuant to a warrant, police located 2.97 grams of cannabis, 27.81 grams of methamphetamine, spotting knives, a cannabis pipe, a glass pipe commonly used for consuming methamphetamine, a sawn-off .22 calibre pistol, and 11 rounds of .22 ammunition.

[5]    At the time of the 2024 offending, the appellant was subject to release conditions — the probation officer to whom he was reporting described his engagement as “superficial”.

Previous offending

2022 offending

[6]    In September 2022, the appellant had pleaded guilty to charges (from 2021) of unlawful possession of a pistol and of ammunition, possession of illicit drugs, breaches of a protection order, receiving a motor vehicle and unlicensed driving. Judge Phillips sentenced the appellant on the firearm charge to 18 months’ imprisonment with a requirement for attendance at rehabilitation programmes.5

Earlier offending

[7]    The appellant has an extensive criminal history dating from 2002 (when he was 16 years old). His earlier convictions are numerous for assaults and family violence, wilful damage, driving offences, and cannabis possession. He repeatedly contravened

5      R v Mulligan [2022] NZDC 23783.

protection order conditions by possessing a firearm and has convictions for unlawfully possessing a firearm and for leaving a firearm loaded, endangering life.

Section 27 report

[8]    Judge Harvey was in June 2024 provided with a report under s 27 Sentencing Act 2002 (s 27 report). The report had been prepared in November 2022 for use at the 2022 sentencing by Judge Phillips. In 2022, the factors identified in the report led to a 20 per cent discount for personal factors. I now summarise information from that report.

[9]    The appellant witnessed domestic violence from the early age of seven or eight. He reports violent attacks against his mother by her partner, ongoing physical abuse and a relationship that was psychologically, physically and emotionally destructive. The appellant had a disrupted education. He attended at least 21 primary schools and was home-schooled from the age of 12 as he refused to go back to school.

[10]   The appellant reported suffering a number of beatings over the years due to his criminal involvement and participation in gang activities. He says he suffered head injuries. His mother also revealed the appellant had a difficult birth and said that he suffered several accidents during his childhood that resulted in at least one head injury.

[11]   The appellant has more recently been diagnosed with antisocial personality disorder.

[12]   The appellant reported first drinking beer at the age of eight, and spirits from the age of 11 or 12. He drank habitually in his early teens, but since stopped drinking as he didn’t like feeling “not in control”. He reported first smoking cannabis at the age of eight and cigarettes at age of 10. He is now an habitual smoker of both tobacco cigarettes and cannabis. He has used methamphetamine “consistently” from around 27 years of age.

Drug and alcohol report

[13]   For sentencing, a comprehensive drug and alcohol assessment was completed by Shane Pleasance (Pleasance report) dated 18 June 2024. It was based on assessment between May and June 2024.

[14]   Mr Pleasance concluded there is ample evidence the appellant has a genetic predisposition to alcohol or substance dyscontrol as well as mood and anxiety disorders. He referred to the appellant’s early exposure to alcohol and cannabis. Mr Pleasance reported the appellant appears to have quite chronic issues of low mood and anxiety — including post-trauma type, and this might perpetuate and precipitate addiction issues. He commented that “a probable genetic predisposition to addiction would tend to indicate substance dyscontrol”. Mr Pleasance concluded long-term recovery will rely on treatment of the appellant’s mood and anxiety disorders, supplemented with alcohol and drug work – with an abstinence focus. It was noted the appellant, while in custody, had completed the six-week drug and alcohol course “He Waka Toitika” (six-week course) and found it of benefit.

[15]   Mr Pleasance reported there is a limit to Mr Mulligan’s preparedness to fully engage with rehabilitation services. Mr Pleasance quotes Mr Mulligan, with reference to past assistance from the Salvation Army in drug and alcohol treatment, saying “the timing was probably not right, and he felt that their recovery philosophies did not coincide”. At the time of the 2024 assessment, Mr Pleasance found Mr Mulligan did not express enough interest to be a good candidate for residential treatment.

District Court (2024) decision

[16]   At sentencing in the District Court Ms Noorland, appearing for the appellant, sought a discount totalling 20 per cent for personal mitigating factors (citing drug addiction, rehabilitation efforts, rehabilitation prospects, and remorse).

[17]   The Judge adopted the indicated three years and six months’ starting point. He applied discounts of:

(a)25 per cent for the guilty plea; and

(b)10 per cent for matters in the appellant’s background, based on matters referred to in the s 27 report and in the alcohol and drug assessment.

[18]   In setting the 10 per cent figure for personal mitigating factors, the Judge referred to the 2022 sentencing. At that time, having regard to the s 27 report, Judge Phillips allowed a credit of 20 per cent for “background matters”. Judge Harvey observed that “a s 27 report cannot be used continually as a get out of jail card”. He concluded the time had come for the Court to place more emphasis on sentencing principles than on the matters identified in the reports. This was notwithstanding that the appellant was, as Judge Harvey observed, now doing something about matters referred to in the drug and alcohol report (through the six-week course).

[19]   The Judge made no additional allowance for remorse — he referred to the appellant’s explanation when caught with the firearm and ammunition: “I’d rather get caught with it than without it”.

[20]The appellant was sentenced:

(a)on the methamphetamine charge, to two years and three months’ imprisonment;

(b)on the firearm charge, to two years’ imprisonment; and

(c)on the ammunition charge, to 12 months’ imprisonment.

All sentences were to be served concurrently.

[21]The firearm and the ammunition were ordered to be destroyed.

Principles on appeal

[22]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error

in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Appeal grounds

[23]   The appellant by his notice of appeal asserted a discount of more than 10 per cent was justified on account of the appellant’s personal circumstances, the causal nexus to the index offending and the rehabilitative steps taken to date.

Submissions

Appellant’s submissions

[24]The starting point of three years and six months’ imprisonment is not in issue.

[25]   Ms Noorland, for the appellant, submits the Judge failed to give adequate discounts to account for the appellant’s personally mitigating features, leading to a manifestly excessive end sentence. She submitted a total credit of no less than 20 per cent was appropriate on account of the appellant’s rehabilitation, addiction and personal factors, while acknowledging she could not on the facts argue for an additional discount for remorse.

[26]    Ms Noorland referred to both the s 27 and the Pleasance reports. She submits the appellant’s upbringing and the significant harm he suffered were contributing causes of his offending. As such, his culpability was markedly less than those without such a disadvantaged upbringing.

[27]   Ms Noorland submitted the sentencing in 2024, following on from the 2022 sentencing, failed to have regard to the appellant’s period in custody and the positive

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

counselling which he received at that time, with Mirtazapine prescribed to assist stabilising his moods. She described the appellant at the time as having found himself able to sleep and integrate himself back into society without the need for relapsing and using methamphetamine and/or cannabis.

[28]Ms Noorland’s written submissions continued, and I quote:

However, as detailed in the correspondence from Matewai Ririnui (employed at Invercargill Prison), and touched upon in the pre-sentence report, upon Mr Mulligan’s release he was only provided with 7 days’ worth of his mood stabilizing medication. Mr Mulligan sought the assistance of Waihopai Health Services during his general practitioner consultations to obtain a further prescription. However, Mr Mulligan’s clinical notes from within the prison were not released, a process described as involving a lot of “red tape”.

[29]   The relevant passage in the pre-sentence report, to which Ms Noorland refers records:

Mr Mulligan advised his mental health decline was the catalyst for his substance abuse, reporting he was able to maintain abstinence for one and a half months post release from custody, however had difficulty getting his prescribed medication in the community and therefore, fell back into his old habits using illegal substances to manage his pain and mental health.

[30]   It has been confirmed that the medical team at Invercargill prison is only able to provide up to seven days’ medication on a prisoner’s release, with the prisoner’s community GP service required to provide subsequent prescriptions in the community.

[31]   Ms Noorland submitted the Judge erred in adopting a ‘formulaic’ approach to the consideration of the s 27 report. She took issue with the Judge’s suggestion it was being used as a “get out of jail free card”.

[32]   Ms Noorland observed the appellant’s 2022 sentencing, when he received a 20 per cent credit for his personal mitigating factors, predated the Supreme Court’s decision in Berkland v R.9 Whereas in Berkland, it is established that matters of personal background may have a material or logical connection to offending without being the approximate cause, she suggested the 2022 sentencing decision proceeded in part on the basis the nexus (between background and offending) was “not

9      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

established”. The Judge in 2022 nevertheless allowed a credit of 20 per cent for background matters, primarily, it would seem, on account of the appellant’s rehabilitative prospects.

[33]   Ms Noorland submits that the Judge in the present case effectively adopted the reasoning from the 2022 sentencing rather than reassessing the causative contribution of the appellant’s background factors in light of the intervening Supreme Court decision in Berkland.

[34]   Ms Noorland further submitted the Judge here, in his reference to the repeated use of the same s 27 report, had inappropriately diminished the report’s relevance because it was two years old. She submitted the appellant’s life events as fully referred to in the report are what remains relevant to his personal mitigating factors now.

[35]   Ms Noorland further submitted the Judge gave insufficient recognition to the appellant’s drug dependency as a mitigating factor.

[36]   Ms Noorland noted that the Court of Appeal in Zhang v R had determined a credit of up to 30 per cent may be available where addiction is present and causative, requiring the sentencing court to give, as much as is possible, consideration to a rehabilitative response as part of the sentencing.

[37]   Ms Noorland noted a contrast in the appellant’s attitude towards rehabilitation between 2022 (when the sentencing Judge noted a lack of motivation) and this year, when he has completed a six-week alcohol and drug programme while on remand and was assessed as eligible for the Department of Corrections’ Medium Intensity Rehabilitation Programme (MIRP). The appellant subsequently commenced the MIRP course on 1 July 2024 and, as at 12 August 2024, was half-way through the 53 sessions).

[38]   Ms Noorland referred to a number of recent decisions in which the Courts have had to consider the impact of background in sentencing for repetitive offending. She

recognised the starting point for those decisions lies in the obiter observation of the Supreme Court in Berkland:10

In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.

[39]   Ms Noorland recognised that the Judge in his sentencing remarks in this case was implicitly referring to this observation.

[40]   I need not refer individually to all the cases Ms Noorland identified, which I will footnote.11 Ms Noorland referred to the over-arching considerations identified in relation to recidivist offending by Whata J in Pou Te Rata v Police, namely:12

…whether, having regard to the specific facts of the offender, and the nature of the offending, a discount is warranted and set at such a level that best serves all the sentencing purposes and principles.

[41]   And, more specifically in relation to the tempering of credits to recognise recidivism, Whata J in Smith v Police observed:13

Moreover, any assessment of a discount for background factors of mature repeat offenders, like all offenders, must be individualised and based on a careful analysis of the offending and the offender. Repeat offending is likely to have its genesis in those background factors so they remain relevant to the assessment of relative culpability and, conversely, the individual’s actual rehabilitation or capacity to rehabilitate may be relevant to the protection of the public and especially the victims of family violence.

[42]   In conclusion, Ms Noorland submitted the appellant ought to have received a credit of at least 20 per cent to reflect his background factors, drug addiction, rehabilitation efforts made and ongoing prospects of rehabilitation. Ms Noorland referred in particular to the significant rehabilitative efforts the appellant has made in the course of this year. Having regard both to Berkland and subsequent decisions

10 Berkland v R, above n 9, at [94], n 105.

11 Moffatt v R [2023] NZHC 1023; Carroll v Police [2023] NZHC 3293; Carroll v R [2023] NZHC 3569; Pou Te Rata v Police [2024] NZHC 821; Smith v Police [2024] NZHC 858; and Edwards v R [2024] NZHC 1762.

12 Pou Te Rata v Police, above n 11, at [23].

13 Smith v Police, above n 11, at [22]–[23].

relating to the tempering approach on account of recidivism, Ms Noorland submitted the appellant ought to have received for s 27 factors at least the same, if not a greater discount, as occurred at the 2022 sentencing.

Respondent’s submissions

[43]   For the Crown, Ms McKenzie, submits no discount was appropriate for remorse. While the appellant had written a letter of apology, this was counteracted by the appellant’s comments recorded in the May 2024 pre-sentence report (prepared three months after he was found with the firearm) that the appellant stated “I’d rather get caught with it than without it” and he requires protection “having no trust outside his core circle”.

[44]   Ms McKenzie acknowledged, with reference to Berkland, that personal background factors may reduce an offender’s culpability. For the appellant, the Crown acknowledges, there were several criminogenic factors present which were relevant to sentencing, including early exposure to domestic violence, alcohol, cannabis, an unsettled early education and involvement with methamphetamine. But, in Ms McKenzie’s submission, through the appellant’s recidivism and entrenched offending, the relevance of the background factors has been eroded.

[45]   Ms McKenzie noted, in relation to rehabilitation, the appellant was subject to release conditions at the time of the current offending. While the appellant completed a six-week alcohol and drug programme, he was not considered a good candidate for residential treatment as he did not express enough interest.

[46]   Ms McKenzie submitted the Judge had not taken a ‘formulaic’ approach to sentencing but had identified other sentencing principles had taken over. Given the countervailing factors earlier identified, Ms McKenzie submitted it was open to the Judge to moderate the level of discount available. She submitted the Judge had not double counted. An offender’s previous convictions are classified as an aggravating factor by the Sentencing Act 2002. The Supreme Court in Berkland has clearly envisaged a situation where, as time passes, other sentencing principles such as denunciation and deterrence would assume greater significance and the offender’s background, lesser significance.

[47]   Therefore, Ms McKenzie submitted the Judge did not err in the sentence imposed and the appeal should be dismissed.

Analysis

[48]   The Judge’s starting point of three years and six months’ imprisonment was, as both counsel recognise, appropriate.

[49]   I address the appellant’s submission that the weight given to a s 27 report should not diminish simply as it is two years old. I accept an updated report would be unlikely to have better informed the Court on the appellant’s relevant background. However, it is not simply the age of the report that saw the sentencing Judge identify a 10 per cent credit for background factors on this occasion. Attention was drawn to the recidivism of the appellant, and the Judge determined that it was appropriate to place an increased emphasis on the sentencing principles of deterrence, denunciation, and the need to protect the community, and a decreased emphasis on the matters canvassed in the s 27 report and the Pleasance report.

[50]   The Judge did not expressly refer to remorse and rehabilitation. While the appellant has written letters of remorse, as noted by the Judge, “[his] comments to the probation officer make it clear that [he has] little regard for the law as it relates to firearms”. Therefore, it was open to the Judge not to give an additional discount for remorse, particularly given a generous discount for the guilty plea, which I will come to.

[51]   The appellant submits there ought to have been greater allowance for his rehabilitative efforts and ongoing prospects of rehabilitation. Here, while the appellant was not considered a good candidate for residential treatment, he has completed a six- week alcohol and drug programme and is now well into his MIRP programme.

[52]   Both counsel referred to Carroll v R, where the circumstances of the offending, the offender and their background demonstrated the duality acknowledged in

Berkland; that criminogenic background factors tend to be reflected in repeat offending, but, at some point, other sentencing principles may negate those factors.14

[53]   At the heart of this appeal, in terms of Ms Noorland’s submissions, is a failure by the sentencing judge to bring properly into account on one hand a nexus between the appellant’s background and his 2024 offending, while still having regard to the recidivism involved in the appellant’s offending and the need to have regard to deterrence, denunciation and the protection of the public.

[54]   This was not a case of a drug-addicted offender resorting to burglary or other property crimes to fuel an addiction. While the term “addiction” has been used in submissions and in some places in the reports in relation to the appellant, the measured conclusions of Mr Pleasance point to the existence of a level of dyscontrol and predisposition, without an established methamphetamine addiction. A fair reading of the reports, including the appellant’s own explanation of his behaviour after his previous release from prison, points not to issues predominantly arising from addictive tendencies but rather from feelings of mental fragility and instability, at which time he may resort to drug use. On the reports provided, that occurrence is not a general issue but is specific to times when he is not accessing his prescribed medication.

[55]   The difficulty the appellant had, following his release from prison, in accessing his usual medication may explain his resort to drugs. But the fact the appellant at that point resorted to drugs does not provide a credible nexus between matters in his background and his 2021 unlawful involvement with firearms.

[56]   In terms of the appellant’s rehabilitation prospects, efforts to provide him with effective rehabilitative services are not new. There is a pattern evident from his earlier approach to the Salvation Army programme (that “the timing was probably not right” and it did not coincide with his “recovery philosophies”), to the more recent conclusion reached by Mr Pleasance, following assessments, that the appellant is not through the way he expresses any interest a good candidate for residential treatment.

14     Carroll v R, above n 11, at [44], citing Berkland v R, above n 9, at [94].

[57]   The appellant has had the advantage of repeated efforts on the part of others to provide insights and programmes that would assist his rehabilitation. Those efforts have continued, including with the appellant’s engagement, through the MIRP programme. But, when all is considered, this was not a case in which the sentencing Judge was required to provide a substantial credit in the offender’s interest in rehabilitation. The appellant continues to display an attitude to rehabilitation that is based on what he wants, according to his view of timing, rather than the full measure of what the professionals would recommend.

[58]   I also find the Judge, while recognising credit was appropriate on account of the nexus between the appellant’s background and his index offending, was correct not to consider substantial credit was required in 2024. The causal link between background and the possession of methamphetamine for supply is in this case relatively weak. Similarly, the causal link between background and possession of a firearm and of ammunition is weak. When one focuses particularly on the firearm and ammunition convictions and considers the appellant’s explanation for possessing those (above at [19]), the strong indication is that those offences stem from a continuing sense of entitlement and blatant disregard for the safety of others and of his obligation to comply both with the law generally and with post-release conditions specifically.

[59]   I find the Judge appropriately uplifted the appellant’s sentence by 10 per cent to reflect his prior offending. The uplift reflects the increased culpability of the offending itself.

[60]    A credit of 20 per cent for background factors and rehabilitative potential would have been within the range available to the Judge. But this of itself does not mean the end sentence was manifestly excessive.

[61]   The effect of the 45 per cent combined credit (25 per cent plus 20 per cent) rather than a 35 per cent credit would be meaningful in this case if that were the only consideration relevant on appeal. It would take the end sentence from 27 months to 23 months and therefore bring into frame the potential for a sentence of home detention. But as recognised by the Judge in finally sentencing the appellant, the discount for his guilty pleas was generous given that the guilty plea was not made at

the first available instance. Instead, it was made after the not guilty pleas had been entered and subsequently a sentencing indication requested and obtained.

[62]   Had the credit for guilty pleas been 20 per cent, with an increase of the credit for other personal mitigating factors up to say 20 per cent, an end sentence so calculated would have been 25 months. The difference between that and the sentence imposed (27 months) does not suggest the latter was manifestly excessive. It would have been within range. I also have regard to the guidance provided by the Supreme Court in Berkland:15

[112] Finally, it is appropriate to acknowledge that background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community-based sentence.

[63]   While neither counsel on this appeal addressed home detention, the appellant’s history did not indicate the appellant was a good candidate for home detention. Even had a short sentence of imprisonment been imposed, home detention would not have been appropriate.

Outcome

[64]I dismiss the appeal.

Osborne J

Solicitors:

Todd & Walker, Queenstown Crown Solicitor, Invercargill

15     Berkland v R, above n 9.