R v Mulligan HC Wanganui CRI-2010-083-1242
[2011] NZHC 2129
•1 July 2011
IN THE HIGH COURT OF NEW ZEALAND
WANGANUI REGISTRY
CRI-2010-083-1242 THE CROWN
v
DEAN RICHARD MULLIGAN
Hearing: 1 July 2011
Appearances: L Rowe for the Crown
S Ross for the prisoner
Judgment: 1 July 2011
SENTENCING NOTES OF CLIFFORD J
[1] Mr Mulligan, you appear for sentence today having been convicted, after a trial before me here in the High Court at Wanganui, of the murder of Marice McGregor on Monday, 19 April 2010.
[2] At your trial there was no suggestion that Ms McGregor’s death was accidental. She was killed by three deliberate blows to her skull, blunt trauma injuries as the pathologist described them.
[3] You denied that you were the person who had killed Ms McGregor. You said that another person had been responsible, that you had witnessed the killing and had been threatened, subjected to sexual and physical abuse and forced to make the confession you made to the Police on 25 May last year. As their verdict shows, the jury rejected that version of events.
R V MULLIGAN HC WANG CRI-2010-083-1242 1 July 2011
[4] I acknowledge the presence in Court today – and indeed throughout the trial – of the family and friends of Ms McGregor, the victim of this offending. I am very aware how difficult the trial, and all it revealed, would have been for you. I refer later to the victim impact statement you have provided. I also acknowledge the presence of Mr Mulligan’s brother in Court today.
[5] Mr Mulligan I will first explain to you, and to all here in the Court, the decision I must make today to determine your sentence.
[6] Where a person is convicted of murder, our law requires the Court to impose a life sentence, unless such a sentence would be manifestly unjust. Such a sentence is clearly not manifestly unjust here. Therefore Mr Mulligan, you are sentenced to life imprisonment.
[7] Where a Court imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the convicted person must serve. The minimum period is the minimum term of imprisonment that the convicted person must serve before they are eligible for parole. This is because, even though a person receives a life sentence, they can apply for parole during that sentence. Eligibility to apply for parole does not mean that a person will automatically be released. The Parole Board is required to consider the safety of the community and whether the convicted person would pose an undue risk to the community upon release. Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison.
[8] The minimum period is therefore the time that must elapse before a person convicted of murder is eligible to be considered for parole.
[9] That minimum term may not, except in very rare cases and certainly this is not one of them, be less than 10 years, and must be the minimum term the Court considers necessary to hold an offender accountable for the harm done, to denounce the offender’s conduct, to deter the offender and others from committing similar crimes and to protect the community from the offender.
[10] Our law also provides that for some murders the minimum period must be at least 17 years, unless the Court is satisfied it would be manifestly unjust to do so. Here, as you have heard, the Crown submits that this is such a murder, and that accordingly, Mr Mulligan, your minimum period of imprisonment should be 17 years. On your behalf, Mr Ross argues that this is not such a case, and that a minimum period of between 13 and 15 years is called for.
[11] Therefore, the decision I must make this morning is what is the minimum term, which must be at least 10 years, that is appropriate in response to your offending.
Summary of Facts
[12] As part of my consideration of your sentence, I need to record the factual basis upon which I will sentence you
[13] Mr Mulligan, on Monday, 19 April you arranged to meet Marice McGregor near Lismore Forest on the Old Parapara Road, which runs off State Highway 4 about 13 kilometres north of Wanganui. Marice would appear to have gone there thinking you were going to collect firewood. Marice was running late, and sent you text messages to that effect. Marice was seen at Old Parapara Road by a school bus driver at about 4.00pm in her red Suzuki 4-wheel drive.
[14] Soon after this, you picked Marice up from where she was parked and drove north on State Highway 4 for approximately 35 kilometres, to Whiskey Bend. You parked nearby and you and Marice went down into the creek bed below Whiskey Bend. There you killed Marice, hitting her twice on the back of her head, and once on the front of her face, with a metal bar which you had taken there with you.
[15]Marice died virtually instantly at the scene.
[16] You climbed back up to the road, and drove south. Some 10 kilometres down the road you threw the lanyard containing some of Marice’s keys out of the window of your van. You had removed the keys to Marice’s house and her Suzuki 4-wheel
drive before disposing of the lanyard. Driving further south, you stopped and shifted Marice’s vehicle to a less conspicuous position. You then drove on, through Wanganui, to your home in Feilding. On the way you called into the Marton Woolworths Supermarket. You were filmed on CCTV moving freely, notwithstanding the fact that you have an artificial lower right leg.
[17] Based on my consideration of all of the evidence at your trial, which focused not only on the events of 19 April, but also on those that had gone before and came after that day, I have come to the conclusion that your killing of Marice was either premeditated, or at least an act that, when you went up State Highway 4 that day, you were prepared to carry out if need be. I base that conclusion on the following aspects of the evidence overall.
[18] First, the money you received from Marice. You met Marice on an internet dating site in 2008. From that time on you and Marice had a sexual relationship. More significantly, in terms of this crime, you also obtained a significant amount of money from Marice. Over the relevant period, Marice withdrew some $51,000 from an investment account. Over that same period, up until and including 19 February 2010, cash deposits totalling $29,000 were paid into accounts associated with you or your wife. In my view most – if not all – of that money came from Marice. There were, in the cashbook of your business, no cash transactions recorded that could explain those payments. Moreover, when Marice did provide an explanation to her financial advisers as to why she was withdrawing money from her investment account, she referred on a number of occasions to the fact that her boyfriend – for what are now obviously fictitious reasons – needed the money.
[19] Over time, Marice had a series of deeds of acknowledgement of debt prepared. In my view, she was hoping to get you to sign one of those, so that she could get some of this money back from you and repair, at least in part, the damage she had, under your influence, done to her financial position. One of those deeds, recording a debt totalling some $22,000, was found in her car after her death. I conclude that, as evidenced by those deeds of acknowledgement, Marice was pressing you to acknowledge your debt to her formally from early 2010, and at the time of her death.
[20] Secondly, you had never disclosed the nature of your relationship with Marice to your wife, not surprisingly, although your wife did know you helped Marice with her computers. But in early April 2010 Marice telephoned your pastor. She told your pastor that she was your girlfriend, that she was concerned that you may be becoming suicidal due to financial difficulties. She said that your wife was your flatmate and that you and her were going to get married. So, very shortly before you killed Marice, she exposed your relationship with her and I infer you were under particular pressure because of that matter.
[21] Thirdly, in the course of 2009 Marice created a new will naming you as the executor and, albeit perhaps impliedly, the residuary beneficiary of her estate. That will was neither signed nor witnessed, but was emailed to you. Marice also prepared a Whitcoulls kitset will dated 1 July 2009. She signed that will and had it witnessed, you were named as the executor but the will was otherwise incomplete. Notwithstanding the legal doubts that might arise in terms of the efficacy of those wills, you believed that Marice had left her house and other assets to you. That belief was demonstrated in a conversation you had with your brother in January 2010.
[22] Your evidence was that you had told Marice, earlier in the week prior to the events of Monday, that your relationship with Marice was over. Whether you did that or not I am unable to tell conclusively, although I think that is likely the case. Certainly by 19 April 2010 these three aspects of your relationship with Marice and, perhaps most significantly, that she had unexpectedly disclosed that relationship, were by my assessment putting you under enormous pressure, albeit, I emphasise, of your own making.
[23] Finally, and perhaps most tellingly, there is the evidence of the internet searches I conclude you made on your computer on that afternoon of 19 April 2010 before leaving Feilding to meet Marice. Shortly after 2.00pm you carried out ten searches on Google, Wikipedia and Wikianswers, looking for answers on the following topics:
(a)Hit head really hard;
(b)Hard hit to back of head;
(c)Hit back of head;
(d)What might happen if you were to hit very hard on the back of your head.
[24] I simply do not accept, as neither in my view did the jury, any of the various explanations you made for those searches. In my view, those searches provide powerful and telling evidence of the intentions you had by that Monday afternoon when you went with Marice down into the creek bed at Whiskey Bend.
[25] By all accounts, Marice was not a sophisticated person. She was described by a number of witnesses as being somewhat simple. At the same time I accept that the evidence at trial showed that, at least for a period of time, she had had a promiscuous and somewhat risky sex life based on internet dating sites. It may well be that the internet allowed Marice to express and satisfy her sexuality in a way that more conventional social contexts would not have. Be that as it may, I also think – based on the evidence I heard, particularly from Marice’s friend Elaine Moles, and her brother and sister-in-law – that Marice had formed later a significant emotional bond with you. Those witnesses spoke of Marice’s apparent happiness, and how she was paying more attention to her physical well-being and the way she dressed. You admitted to encouraging that relationship and, to a certain extent, to leading her on.
[26] In my view, those facts – and the inferences I draw from them – are the ones that are material for the sentencing decision I have to make today.
[27] I do not propose to go over the narrative of events after Marice’s death that led to your eventual trial. Suffice to say I think that – very much as Mr Rowe summarised matters in his closing address to the jury – after the murder you did set out on a course of conduct that would distance you from Marice’s death. When you inevitably came to the Police’s attention you told a series of lies until, finally, you did confront the truth when you confessed to the Police on 25 May last year. That was after your arrest on the charge of murder, and when you had realised that the truth had in effect come out. Subsequently, under the pressure I accept of your own
difficulty in coping with what you had done, you concocted a completely implausible story to explain your conduct.
[28]It is on that basis I will sentence you.
[29] In addition to those essential facts, I also need to refer to the pre-sentence report provided to me.
Pre-sentence report
[30]You are now aged 43 years.
[31] You were raised in Waverley and later in Whanganui. You describe your parents and home life as warm and supportive. Your father died when you were relatively young and you relocated to Whanganui. You were bullied at school and, by your account, sexually abused by a stranger when you were aged 12. Your mother has stated that she does not know if you were telling the truth and that you have always been good at lies. But she acknowledges that there have been times when you do tell the truth and that she has been surprised.
[32] Prior to your arrest you were living in Feilding with your second wife Fiona. You are the father of four children from a previous marriage, and you are step-father to Fiona’s two children. It would appear that you had, prior to your involvement with Marice and the events leading up to and including her murder, a good marriage. Your wife now, however, describes you as a pathological liar. She states that she no longer supports you and that she has had it with you.
[33] You were a member of a local Feilding church. Your pastor also says that you have fooled all of the congregation. You were not, he said when giving evidence, a truthful person. You were simply deceitful.
[34] I can only comment, based upon your acceptance – when giving evidence – that you lied in your statements to the Police, and my observations as the Judge who
conducted your trial, that your wife’s comment that you are a pathological liar accurately summarises, as far as I am concerned, your relationship with the truth.
[35] It would appear, based on your interview with the probation officer, that you continue to deny responsibility for actually killing Marice. There can, in that situation, be no question of any credit for remorse.
Victim impact statement
[36] Marice’s family and her wider network of friends all contributed to the victim impact statement that was read in court today. I acknowledge that statement, the reactions and feelings expressed in it and the responsible and relatively restrained way Marice’s family has expressed the undoubtedly huge impact this crime has had on them.
Sentencing discussion
[37] I turn now to the legal issues I must consider when setting Mr Mulligan’s sentence. These focus on the question of whether this is a murder which requires a minimum sentence of 17 years.
[38] Pursuant to s 104 of our Sentencing Act, such a sentence is required where any one of nine or more particular circumstances exist, unless to impose such a sentence would be manifestly unjust. Those particular circumstances include where:
(a)the murder involved what is called calculated or lengthy planning;
(b)the murder was committed with a high level of brutality, cruelty, depravity or callousness; and
(c)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factors.
[39] Here the Crown says that the first two of those factors is present and that the third might be, although it does not place particular emphasis on this.
[40] The application of s 104 necessarily involves a range of quite difficult legal considerations. Speaking of the section generally, the Court of Appeal has observed that its purpose is to require a very substantial minimum term of imprisonment for what the Court of Appeal describes as the most serious of murders. That must be borne in mind especially when considering whether a murder was marked with a high level of brutality or if the victim was particularly vulnerable.1 To similar effect, are observations of that Court that murders to which s 104 will apply will be very much the exception, and not the norm, and in fact will be the most serious cases of the crime of murder.2 At the same time, where a Court finds that any of the range of particular circumstances referred to in s 104 do exist, then the Court must impose a sentence of at least 17 years unless it would be manifestly unjust to do so. Where s 104 applies, therefore, sentences may be expected to be higher than would be the case if the section had not been enacted.
[41] As sentencing Judges have said many times, all murders are brutal and callous, and very often involve some degree of calculation or planning and victims who are vulnerable. Nevertheless, determining whether s 104 applies necessarily involves some comparison of the particular murder for which sentence is being imposed with other murders. To compare one murder with another can be invidious. To do so can give the impression that the Court does not necessarily consider that the particular murder in question is, as indeed it always is, the most serious of offences known to our law. But that comparative exercise is required.
[42] I therefore turn to each of the particular circumstances that the Crown says mean here that the minimum term of imprisonment to be imposed on you Mr Mulligan must be 17 years, and undertake that difficult exercise.
[43]
I start first with the question of whether this murder was committed with a high level of brutality, cruelty, depravity or callousness. As the Crown’s submissions acknowledge, cases which fall within this category generally involve more prolonged and vicious attacks on a victim. Whilst undoubtedly callous and brutal, your killing of Marice does not, by my assessment Mr Mulligan, fall into that
1 R v Williams & Olson [2005] 2 NZLR 506, (2004) 21 CRNZ 352 (CA).
2 R v Green & Morice CA461/04, 2 June 2005.
category of cases. In reaching that conclusion, I acknowledge the various cases Mr Ross referred me to.
[44] The Crown goes on to submit, in reliance on a case called Frost,3 that your killing of Marice can nevertheless properly be assessed as one which was committed with a high level of brutality and callousness. In Frost, the murder in question involved two actions. The murderer slit his victim’s throat from the back and then stabbed her. The Crown therefore argues that the fact that you killed Marice with only three blows can and does mean that the necessarily high level of brutality was present. I accept the definitions of the terms brutality and callousness articulated by the High Court Judge in Frost, and as accepted by the Court of Appeal. In applying those definitions, however, I think the Frost decision can best be understood in light of the facts that the High Court Judge was dealing with. The High Court Judge, when sentencing the offender, observed:
In my view, this was a murder, committed with the precision of a skilled bushman, seeking to use a knife to snare prey.
[45] It was on the basis of that finding of fact that the sentencing Judge reached the view that a high level of callousness and brutality was involved. I do not consider your killing of Marice can be categorised in that way. Whilst Marice’s murder was callous and brutal, I do not consider that the level of brutality and callousness calls for a 17 year minimum period of imprisonment.
[46] The second basis of particular vulnerability I accept does not apply here. That is not to say that Marice was not vulnerable to you. But this category applies where victim are particularly vulnerable because they are elderly or sick or otherwise infirm. I accept Marice was not a physically strong or particularly active person, but do not consider that she was particularly vulnerable.
[47] Finally, a minimum term of 17 years is also called for where the murder involves calculated or lengthy planning, including where such planning and calculation involves the making of an arrangement under which money or anything
3 R v Frost [2008] NZCA 406, 17 September, 6 October 2008.
of value passes, or is intended to pass, from one person to another. It is this aspect of your killing of Marice that has caused me the most difficulty.
[48] The Crown’s submission here is that there is evidence of calculated, if not lengthy, planning and premeditation and that that evidence is overwhelming. The Crown in effect submits that the matters I have identified, which undoubtedly evidence motive, also evidence calculated planning. The Crown also submits that your actions after the murder, including sending an offensive email to your wife, the actions you took in disposing of Marice’s cellphone and generally undertaking a number of actions designed to distance you from her, also reflect calculated planning.
[49] I consider first the significance of the fact that Marice had either made, or thought she had made, a will leaving the majority of her property to you, and that you knew about this in April 2010, and had known about it for some time. Clearly, if my conclusion was that you had planned for Marice to make such a will and had procured her to do so, and that at the time of those actions had contemplated that you would kill her to get the benefit of that will, s 104 would clearly apply for that reason alone. The Crown refers to there being a suspicion that that might have been the case. There may well be, but that is not, in my view, sufficient. It is simply unclear to me why Marice made the will or wills she did, and what was each of her and your role in that behaviour.
[50] More generally, the Crown refers to the matters which I accept evidence your motive to kill Marice, and in particular the large amount of money you obtained over time, that she was endeavouring to recover at least some of that money from you and the significance of her disclosure to your pastor of your relationship with her. There are your actions on the day, not only making the Google searches but also the drive, first to Lismore Forest and then on to Whiskey Bend. Then there are your actions after the event.
[51] I have very carefully considered the Crown’s submissions. However, I have concluded that your actions do not involve the “calculated planning” required for a minimum period of imprisonment of 17 years.
[52] My assessment is that when Marice disclosed your relationship to your pastor, you decided that that relationship must end. At the same time, Marice was pressuring you for the return of at least some if not all of her money. I think those pressures came together in the days leading up to 19 April. I think you reacted under the pressure of circumstances which were increasingly out of your control. There was undoubtedly premeditation, and a not insignificant element of premeditation but, in my view, that planning was not calculated in the sense that has been used of that term in s 104.
[53] The Crown referred to a number of cases where calculated planning has been found to exist. I observe that three of these cases involved what can only be called gang land execution or hits.4 To me, that gives some of the flavour of the proper meaning of the term “calculated planning”. I acknowledge that in another one of those cases, Khan,5 a Judge found calculated planning existed where there had been what she called “an element of premeditation”. I note, however, that that case clearly involved a cruel and callous murder where the victim was in fact burnt alive. Section 104 was accepted to apply by reason of that fact alone. I am not persuaded that, absent those considerations, the Judge would necessarily have concluded that the necessary degree of calculated planning existed. Finally, as regards the case Parrish I was referred to,6 I accept that it could be said that the planning there was not dissimilar to that involved here. I observe, however, that Parrish is one of the first cases decided under this section, and before the Court of Appeal had expressed the views I referred to above in Williams and Olsen.
[54] I also acknowledge the Crown’s submissions as to the significance of your actions after Marice’s death. Certainly, those actions were calculated to avoid your involvement in her death being discovered. It is less clear to me, however, that they disclose great planning, as opposed to deceitful reactions after the event.
4 R v Chow HC Auckland CRI-2006-032-00356, 15 February 2007; R v Moore HC Wellington CRI-2006-085-4361, 11 April 2008; R v Marteley HC Hamilton CRI-2009-019-9786,
5 November 2010.
5 R v Khan HC Auckland T-2004-092-003097, 29 October 2004.
6 R v Parrish (2003) 21 CRNZ 571 (CA).
[55] In reaching my conclusions in this area, I have also been influenced by my observations of you, both as a witness in Court, and in the video interviews you taped with the Police, and by the evidence I have heard generally about your character. By my assessment you are a liar and a fantasist. As was observed about you some years ago when you faced criminal charges for arson, you are poorly equipped to deal with crises and difficult situations. Your killing of Marice was very much, I think, a reaction – albeit it to circumstances of your own making. It was pre-meditated in the period of time beforehand, and it was a cruel and callous reaction. Your subsequent actions were a continuation of that. You have in effect endeavoured to lie your way out of that situation. But, by a relatively narrow margin, I have concluded that calculated planning, as referred to in the section, was not involved.
[56]This is therefore not a crime that calls for the minimum period of 17 years.
[57] Having said that, I have no doubt that all these matters constitute aggravating circumstances that require a minimum sentence significantly greater than 10 years. Having regard to the trust Marice had in you, her vulnerability to you – particularly because of your relationship with her and therefore her willingness to go with you to the scene of the murder, and having regard to the not insignificant level of premeditation I have found to exist, I conclude that a minimum term of imprisonment of 15 years is called for.
[58] There are not, in my view, any mitigating circumstances to reduce that minimum term. In reaching that conclusion, I record Mr Ross’s acknowledgement that you do not have diminished intellectual capacity or understanding so as to constitute a mitigating factor. As Mr Ross acknowledged, you clearly have a dysfunctional personality, one which is poorly equipped to deal with crises and difficult situations. I have already acknowledged that.
[59] I comment finally to those of Marice’s family and friends in Court today. As I am sure you are well aware – no sentence for murder can cure the sadness and the suffering that a murder brings about. Nor can it bring any great sense of peace to those who grieve for the victim. It is, rather, the response of our justice system
which here in very tragic circumstances – as in all areas – tries to do the best it can in dealing with the complexities of human nature and human behaviour.
[60]Mr Mulligan, please stand so that I may formally sentence you.
[61] Dean Richard Mulligan, you have been found guilty of the murder of Marice McGregor. I sentence you to life imprisonment and order that you serve a minimum term of imprisonment of 15 years.
[62]You may stand down.
“Clifford J”
Solicitors:
Crown Solicitor, P O Box 441, Wanganui for the Crown ([email protected]) Stephen Ross & Associates, P O Box 680, Wanganui ([email protected])
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