Mullan v Police - [2023] NZHC 962

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-26

[2023] NZHC 962

BETWEEN
MICHAEL DANIEL MULLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 April 2023

Appearances:

A M S Williams and R Adams for the Appellant A Harvey for the Respondent

Judgment:

28 April 2023

JUDGMENT OF HARLAND J

[1] On 24 February 2023, Mr Mullan was sentenced to eight months’ home detention1 following his conviction on one charge of strangulation2 and another charge of assault with intent to injure.3 The victim was Mr Mullan’s partner of two years.

[2] Mr Mullan now appeals that sentence but only in respect of what is alleged to be the failure by the Judge to give a deduction to reflect Mr Mullan’s upbringing and background.

[3] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.

1      Police v Mullan [2022] NZDC 3629.
2      Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.
3      Section 193; maximum penalty three years’ imprisonment.

MULLAN v POLICE [2023] NZHC 962 [28 April 2023]

Facts

[4] The summary of facts records that, on 29 July 2022, Mr Mullan and his partner (the victim) were at home. An argument developed in the living room. The victim then went to the bedroom. After a short time, Mr Mullan also went to the bedroom and the argument continued, with the victim purposely knocking over a bowl of water to provoke Mr Mullan.

[5] Mr Mullan knelt over the victim on the bed while she was lying on her back. He placed both hands overlapped around her neck and applied pressure. The victim struggled to breath. She managed to struggle free but became trapped by Mr Mullan on the floor between the bed and a cabinet. These facts are relevant to the strangulation/suffocation charge.

[6] Mr Mullan then pressed one thumb into the eye of the victim. This fact supports the assault with intent to injure charge.

[7] The victim managed to get free and ran from the address. She sustained scratches and red marks on her neck as well as a black eye.

District Court decision

[8] The matter came before Judge Couch for sentence. The Judge regarded the offending as serious, noting the victim’s breathing was affected. He considered that the victim’s vulnerability was a major aggravating factor, as she was lying on her back during the choking incident and trapped on the floor for the eye gouge. The Judge noted that both attacks were to the head and also involved a serious breach of trust, as they occurred at her home. The Judge recorded that the attacks caused physical and long-lasting psychological harm to the victim.

[9] Having regard to the principles outlined in Shramka v R, the Judge adopted a starting point of 24 months’ imprisonment.4 No personal aggravating factors were identified justifying an uplift from the starting point. The Judge reduced the sentence by 18 per cent considering…

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 Mullan v Police

Details

AGLC: Mullan v Police [2023] NZHC 962
Case: [2023] NZHC 962
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appellant, Michael Daniel Mullan, appeals the sentence of eight months' home detention imposed by the District Court for strangulation and assault with intent to injure. The High Court was required to decide whether the Judge erred in failing to provide a deduction to reflect Mullan's upbringing and background. The court also had to determine whether Mullan's affidavit could be considered a cultural report under s 27 of the Sentencing Act 2002, if the Judge took those matters into account in any event, and if the Judge was right to conclude that Mullan's background matters did not justify a further mitigating deduction. The High Court also had to determine if the overall sentence was manifestly unjust.

The court concluded that Mullan's affidavit could not be considered a cultural report under s 27 of the Sentencing Act 2002, as the section contemplates information being provided by a separate person, apart from the defendant. However, the Judge did take the matters in the defendant's affidavit into account when reaching his decision. The court found that the Judge was not entirely correct to take Mullan's non-violent prior 12-year relationship as a significant factor in deciding there was no nexus established. However, it was a factor to be borne in mind. The court held that the Judge was right to conclude that Mullan's background matters did not justify a further mitigating deduction, as an extra deduction of somewhere between five to 10 per cent would have been appropriate. However, when viewed in the context of the end sentence, the sentence could not be said to be manifestly excessive.

The appeal was dismissed.

Orders