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 Mr Mullan’s eventual guilty plea. The sentence was

4      Shramka v R [2022] NZCA 299; [2022] NZLR 348.

reduced by a further ten per cent following consideration of Mr Mullan’s genuine remorse, subsequent counselling and enrolment in a Stopping Violence programme.

[10]   An affidavit sworn by Mr Mullan regarding his personal background was presented by his lawyer as a cultural report under s 27 Sentencing Act 2002. The Judge doubted whether a defendant’s affidavit could be regarded as a cultural report but took its contents into account in any event. With reference to it, the Judge said:5

You grew up in Belfast, Northern Ireland during the troubles and I accept you had a traumatic upbringing. This included twice being kidnapped and put in fear of your life. You also suffered a significant head injury although there is no medical evidence about the effects of this. After immigrating to New Zealand as a young man, however, you appear to have led a constructive life with these charges being your first violent offences. While I have sympathy for what you experienced as a child and as a youth, I do not see sufficient nexus between those events and this offending. A significant factor in reaching this conclusion is that, prior to entering into a relationship with the victim of this offending, you had a 12 year relationship with another woman during which there was no physical violence. She has written an email confirming this. It does not therefore seem to me appropriate to reduce the sentence further on account of what is set out in your affidavit.

[11]   After taking all matters into account, the Judge reached an end point sentence of 16 months’ imprisonment. He acknowledged Mr Mullan’s lack of previous convictions, his insight into the offending and his efforts at rehabilitation. The Judge considered that the least restrictive outcome was a sentence of home detention.6 He imposed a sentence of eight months’ home detention.

The appeal

[12]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned 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”.8 It is only

5      Police v Mullan, above n 1, at [9].

6      Sentencing Act 2002, s 8(g).

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

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

appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

[13]   The main point on appeal relates to the Judge’s refusal to provide any credit for Mr Mullan’s background on the basis that he did not consider there was a sufficient nexus between it and the offending.10

[14]The following issues arise:

(a)        Was Mr Mullan’s affidavit able to address matters outlined in s 27 of the Sentencing Act 2002?

(b)        If it was not, did the Judge nonetheless take those matters into account when reaching his decision?

(c)        Was the Judge right to conclude that Mr Mullan’s background matters did not justify a further mitigating deduction?

(d)        Is the overall sentence manifestly unjust?

Was Mr Mullan’s affidavit able to address matters outlined in s 27 of the Sentencing Act 2002?

[15]   Mr Williams submitted that Mr Mullan’s affidavit was appropriately filed pursuant to s 27 of the Sentencing Act. He submitted that the section enables “any person” to address the sentencing court as to a defendant’s relevant personal mitigating factors.

[16]   Mr Harvey, for the Crown, submitted that the structure of s 27 suggests that the information referred to in it is intended to be provided by a third party, rather than a defendant themself.

[17]   This matter was briefly addressed by the Judge in his sentencing notes, when he said:

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

10     Police v Mullan, above n 1, at [9].

[8] You have sworn an affidavit as to your  personal  background  and counsel submits this should be received as a cultural report under s 27 of the Sentencing Act 2002. I have doubts about whether Parliament intended that a report by a defendant about himself should be regarded as a cultural report for the purposes of s 27, but I take what you say in your affidavit into account in any event.

[18]   Although arguably, because the Judge took the matters in Mr Mullan’s affidavit into account in any event, it is not necessary to address whether the section contemplates an offender providing the information referred to in that section. I have decided that the issue needs to be addressed because the basis for the mitigating deduction sought is based on the principles that have been established in the case law under s 27 justifying such a discount.

[19]Section 27 of the Sentencing Act provides:

27 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1)   If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a)the personal, family, whanau, community, and cultural background of the offender:

(b)the way in which that background may have related to the commission of the offence:

(c)any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d)how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e)how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

(2)   The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.

(3)   If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

(4)   Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.

(5)   If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).

[20]   Section 27 has been the subject of much judicial discussion and, most recently and authoritatively, by the Supreme Court in Berkland v R.11 As Williams J said:

[138]    Section 27 is a sophisticated provision. It was designed, first and foremost, to draw the offender’s community — including, where appropriate, whānau, hapū and iwi — into the courtroom to provide insights into the offender and to share responsibility for addressing the offender’s needs. It contains three elements: court-community engagement; obtaining relevant background information about the offender; and identifying community resources relevant to sentence.

[139]  Thus s 27 interventions can reveal offender background relevant to the consistency and retributive principles of sentencing; they can suggest how the offender’s community might help the offender to address their offending; and they can propose alternative sentencing options (as well as pre and post- sentencing options) about which the judge might otherwise have been unaware. Options might include enrolling the offender in community-based programmes, connecting them to more informal community support networks to aid in rehabilitation and reintegration, or to pro-social mentoring from within the community in order to bring the offender to a better understanding of their own responsibility for the offending. Such options can also serve other sentencing purposes such as deterrence and community protection.

[21]   This interpretation was further developed by Williams J in para [140] when he said:

In other words, s 27 was designed to be a means by which the court might draw on connections between the offender and their community to better achieve the purposes and principles of sentencing…

[22]   After observing that there is no rigid formula for the provision of s 27 information and noting that such information is often provided by way of a report, Williams J observed that this is not all the architects of the provision had in mind, because the section also contemplates a person or persons being called by an offender to speak on their behalf which could also be achieved in a less formal way.12

11     Berkland v R [2022] NZSC 143 at [138]-[147].

12 At [142].

[23]   I do not agree with Mr Williams that the section contemplates a defendant preparing material themselves and submitting it under s 27. Recognising that it is common place for reports under s 27 to often provide information that is sourced from a defendant, in my view, the section clearly contemplates that a separate person, apart from an offender but at an offender’s request, can be called by them to speak about the matters outlined in s 27(1). Section 27(5) is also clear that, even if an offender does not make a request, the Court can suggest to them that it might be of assistance to hear such a person or persons called by them on any of the matters specified in subs (1).

[24]   When coupled with the interpretation provided in Berkland v R as referred to above, in my view, it is clear that s 27 contemplates the further information that might be relevant to sentencing being provided by a person or persons other than a defendant, even though a defendant’s perspective on their background and how their family, whānau or community might help them to prevent further offending can also be included.

[25]   I conclude that the Judge was correct to not take into account the defendant’s affidavit as a s 27 report.

Did the Judge nonetheless take the matters in the defendant’s affidavit into account when reaching his decision?

[26]   In any event, the Judge did take into account the matters included in the defendant’s affidavit. However, he did not accept that there was a nexus between them and the offending, largely because he formed the view that Mr Mullan had not exhibited any tendency to display violence in his prior 12 year family relationship, a matter supported by a letter provided by Mr Mullan at his sentencing from his former partner.

[27]   The fact that a defendant does not exhibit violent tendencies in one relationship does not necessarily translate to an indication that the same would apply in another relationship. This is because the dynamics of each relationship are different and depend, to a large extent, on what causes conflict within that relationship and how that conflict exhibits itself behaviourally by each party.

[28]   In this case, there is also reference in the pre-sentence report to the victim being served with a Police Safety Order and a trespass order by the Police on 14 October 2022 following them attending a family harm incident between the parties.13 This should have alerted the Judge to the fact that there were potentially difficult and complex relationship issues involved.

[29]   I therefore conclude that the Judge was not correct to take this into account as a significant factor in deciding there was no nexus established. It was however a factor to be borne in mind.

Was the Judge right to conclude that Mr Mullan’s background matters did not justify a further mitigating deduction?

[30]   The Judge accepted certain significant aspects referred to by Mr Mullan in his affidavit, including his traumatic upbringing that included twice being kidnapped and being put in fear of his life, and that he had suffered a significant head injury. The latter was referred to although the Judge correctly noted there was no medical evidence about the effects of it. The Judge would have been assisted by this matter being independently verified by a medical practitioner. It would also have been helpful to have provided the Judge with some information about how the impacts of this injury might play out for the defendant in stressful situations.

[31]   These background matters, in conjunction with the observation Mr Mullan made about his relationship with the victim, assist to explain what would otherwise appear to be uncharacteristic behaviour. A deduction to reflect these matters would therefore have been appropriate but not, in my view, to the extent submitted by Mr Williams. A discount in the vicinity of an extra five to 10 per cent would have been appropriate but that now needs to be considered with reference to the end sentence and the Court’s ultimate jurisdiction which is only to interfere with a sentence that can be found to be manifestly excessive.

13     Provision of Advice to Courts dated 29/11/2022, pg 3.

Was the sentence manifestly excessive?

[32]   The judge applied a generous discount of 10 per cent to Mr Mullan’s expressed remorse and the rehabilitative measures he undertook after the offending. The matters of background that might explain Mr Mullan’s response to the triggering event concerning the bowl of water would, in my view, have justified an extra deduction of somewhere between five to 10 per cent.

[33]   Taking into account the guilty plea, the deductions could therefore have amounted to somewhere between 33 and 38 per cent. If the deductions were 33 per cent, this would result in an end sentence of just over 16 months’ imprisonment. If the deductions were 38 per cent, the end sentence would be just under 15 months’ imprisonment. Translating this into a sentence of home detention would mean the outcome would be between seven and eight months’ home detention.

[34]   As outlined, the Judge imposed an end sentence of 16 months’ imprisonment. This was favourable to the defendant based on deductions the Judge allowed for mitigating matters which he rounded down by 1.28 months.

[35]   When viewed in this way, the sentence cannot be said to be manifestly excessive.

Result

[36]The appeal is dismissed.

Harland J

Solicitors:

A M S Williams, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.