R v Mullen

[2014] NZHC 917

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2013-076-000650 [2014] NZHC 917

THE QUEEN

v

RICKY JAMES MULLEN

Hearing:	5 May 2014
Appearances:	A R McRae for the Crown M I Sewell for the Defendant
Judgment:	5 May 2014

SENTENCING REMARKS OF PANCKHURST J

[1]      Mr Mullen, you are for sentence today in relation to offences of attempted murder, being a male you assaulted a female and breach of a protection order.  On arraignment before me in March you also pleaded guilty to a charge of threatening to kill.  However, I direct a discharge pursuant to s 347 in relation to that charge, given Mr McRae’s proper acceptance, in my view, that the threat to kill is effectively part and parcel of the attempted murder and that it would be a duplication to have convictions for both.   Accordingly, you are discharged in relation to that fourth matter.

[2]      The offences were all committed on 28 June last in the course of a single incident.   The victim was your previous partner, with whom you had been in a relationship for a period of 15 years. You have two sons from that relationship, aged, I note, seven and three years.   The second victim was your former partner’s new

boyfriend, who happened to be as well a friend of yours.

R v MULLEN [2014] NZHC 917 [5 May 2014]

[3]      There  can  be  no  doubt  that  the  motive  for  what  occurred  that  day  was jealousy, an inability to move on and accept that a 15 year relationship was at an end. I regard this as an important dimension of this offending.

[4]      You and your former partner, Karla, shared custody of your sons.  On this day there was to be a swap over of the children at her mother’s home, her mother also being your foster mother. You were apparently agitated and aggressive this day.

[5]      After Karla and Mr Ryan left the address, they were called back on account of difficulties which had arisen.   On returning to the address by car, Mr Norman Ryan got out of the vehicle.  You approached him with one hand behind your back. As he got within close proximity to you, you pulled out a knife, which was some

20 centimetres in size.  You attacked Mr Ryan with it.  He sustained a head wound near his ear which required stitches and lesser puncture wounds, three to the torso and one to a rear shoulder.  Fortunately, those injuries were not particularly serious, Mr Mullen, I think because of Mr Ryan’s ability to handle you on the day.  Indeed, you were restrained while a call was made and until the police arrived on the scene.

[6]      The second charge of assaulting a female arose from a punch to Karla during the course of the struggle.  She was punched with your right hand while you were still apparently in possession of the knife.  She, too, sustained a minor injury to the area above her left eye.  At that point she fled the scene, removing the children, who had witnessed this attack.  She called 111 and, as I have said, you were restrained until the police arrived.

[7]      In the course of the incident and after it you made a number of comments to the effect that your intent had been to kill Mr Ryan.  You said that at the scene when the  police  arrived  and  subsequently  at  interview.    For  example,  one  of  your statements was, “I should have killed ya, next time it will be a bullet”.

[8]      A protection order was in force. The order had been made as a temporary one in March and it became permanent on 24 June; that is to say four days before this incident occurred.

[9]     I have read the victim impact statements.   Both complainants state, understandably, that they fear for their safety.   Another feature that emerges from them, Mr Mullen, is that both of your sons are affected by what they witnessed that day and that is harmful to your ongoing relationship with them.  Karla has stated in her victim impact statement that you have said to her that if you cannot have her, no one else will.   That is one of the worst threats imaginable after the breakup of a long-term relationship.  I record it, because it will influence the Parole Board when it comes to consider the question of your release, Mr Mullen.  And if you have not achieved a turnaround by the point when the Parole Board considers your case, a threat of that nature will be influential in any decisions about your future release.

[10]     With reference to your personal circumstances, I note that you are 30 years of age.  It is evident from the pre-sentence report that you had a difficult upbringing and that  you  were  in  foster  care  for  a  significant  period  and  that  you  had  limited schooling.  Since then there has been a history of both alcohol and drug abuse.

[11]     The   pre-sentence   report   discloses   that   you   have   numerous   previous convictions.  I think they total 32 in number, the majority of them for offences of dishonesty, but eight for violence.  Three times previously you have been sentenced to imprisonment, the longest being a term of two years or more for an assault with a blunt weapon, an offence that was committed, I think, in late 2006.

[12]     The report writer states that he asked you what your feelings were towards the victims and he has recorded this: “Nothing.  I’m feeling bad that my kids will be without a father and that I affected a friendship of 15 years, with Karla.  I don’t care about him”, a reference to Mr Ryan.  Today, however, I have received from you a well written two page letter in which you express completely different sentiments. You indicate that you feel regret and remorse for your actions, and indeed that you would welcome the opportunity of a restorative justice meeting with Mr Ryan.  What I am to make of this, I do not know.  I do not accept, Mr Mullen, that you did not say these things to the report writer, because it is reported within quotation marks in the report and the content of the statement is such that it can only have come from you. On the other hand, I hope you have had a change of heart and, ultimately, this again will be a matter for the Parole Board to consider.

[13]     In February of this year I gave you a sentence indication when you sought one.   The maximum sentence for attempted murder is 14 years’ imprisonment.   I indicated to you, however, that the starting point in your case would be between eight  to  10  years’ imprisonment.    I  need  not  repeat  what  I  said  at  that  time concerning the starting point, because it is a matter of record in the sentencing indication notes.

[14]     I went on to explain to you that the final end sentence would be somewhat less than a sentence within that range, and would depend upon two factors.  The first was the appropriate reduction for your guilty pleas and the second was whether a discount was appropriate in relation to your mental state at the time, something that had been raised at a prior bail application and at the sentence indication hearing itself.  I shall deal with that aspect first.

[15]     Ms Sewell has provided me with quite extensive medical notes and also a medical report which, as it happens, was prepared 14 days prior to this incident. Your counsel in her submissions has submitted that you were suffering from anxiety, depression, suicidal ideation and, indeed, paranoia at the relevant time in late June. She has noted that you had been prescribed medication by health professionals from whom you had sought help and she went on to say that that medication had not had the desired effect at the time that these events occurred.

[16]     To my mind, the most significant document that I have been provided with is the medical report which was prepared on 14 June 2013.  It contains this at the foot of page 1:

In summary you presented with fluctuating mood patterns in the context of substance withdrawal.  You are motivated to address your substance related concerns and therefore the following plan was discussed and decided upon.

The  plan  included  various  elements,  that   you  would  attend  an  assessment appointment a short time later, you were provided in the meantime with a helpline number,  you  were  offered  further  information  for  withdrawal  symptoms,  but declined that information and you were given a script for medication.  I note that the report also recorded that you had previously been on medication, but had stopped taking it.

[17]     I have considered this aspect, Mr Mullen.  I accept that you were not in good shape at this time and that you were certainly suffering from the effects of depression and related disorders.  That said, I can find nothing tangible enough in the medical notes or the medical report to show that the sentence should be diminished on account of your then problems.

[18]     Your pleas of guilty were entered on 14 March, almost nine months on from the incident itself.  The maximum reduction available for guilty pleas is 25 per cent. I have to assess a range of matters: the benefit to witnesses, most importantly the two complainants; the fact that your pleas avoided the need for a trial; and, most importantly of all, that they represent an acknowledgement of responsibility for these crimes.

[19]     The timing of the plea is also a factor, because the earlier the plea the greater the saving of resources, and the greater the benefit to the victims.  In this instance there is a complication to the extent that Ms Sewell suffered a personal issue late last year and that this did have, I accept, a significant effect on the timing of the plea.

[20]     In  my  view,  you  are  entitled  to  a  reduction  of  about  two-thirds  of  the maximum of 25 per cent.  Mr Mullen, I have determined that the actual starting point should be one of nine years’ imprisonment.  I allow you, however, a reduction down to seven years and four months in recognition of your guilty pleas.   That term of seven years and four months is imposed in relation to the attempted murder.  With reference to the assault and the breach of the protection order, you are sentenced to six months’ imprisonment on each, but those terms are concurrent.

[21]     A minimum period of imprisonment is not sought by the Crown after due reflection by the Crown solicitor.  I, accordingly, do not impose one, rather I leave it to the Parole Board to make the various assessments to which I have already referred and that will determine when you are released from prison.

[22]     Finally, I am required to give you a warning under the three strike legislation. It is this: if you commit a further offence involving serious violence, you will serve any  resulting  prison  term  without  parole  or  early  release,  and  should  it  be  a

conviction for murder you would receive a sentence of life imprisonment without parole.  You will be given a written notice which details all of the aspects of that legislation and fully outlines the risk, or peril, that you now face in that regard.

Solicitors:

Raymond Donnelly & Co, Timaru

M Sewell, Barrister, Christchurch