MULLAN v POLICE [2023] NZHC 962

MULLAN v POLICE [2023] NZHC 962 [28 April 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-26[2023] NZHC 962BETWEEN MICHAEL DANIEL MULLANAppellantAND NEW ZEALAND POLICERespondentHearing: 20 April 2023Appearances: A M S Williams and R Adams for the AppellantA Harvey for the RespondentJudgment: 28 April 2023JUDGMENT OF HARLAND J[1] On 24 February 2023, Mr Mullan was sentenced to eight months' homedetention1 following his conviction on one charge of strangulation2 and another chargeof 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 tobe the failure by the Judge to give a deduction to reflect Mr Mullan's upbringing andbackground.[3] I have decided to dismiss the appeal. This judgment sets out my reasons fordoing 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.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 victimthen went to the bedroom. After a short time, Mr Mullan also went to the bedroomand the argument continued, with the victim purposely knocking over a bowl of waterto 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 victimstruggled to breath. She managed to struggle free but became trapped by Mr Mullanon the floor between the bed and a cabinet. These facts are relevant to thestrangulation/suffocation charge.[6] Mr Mullan then pressed one thumb into the eye of the victim. This factsupports the assault with intent to injure charge.[7] The victim managed to get free and ran from the address. She sustainedscratches 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 theoffending as serious, noting the victim's breathing was affected. He considered thatthe victim's vulnerability was a major aggravating factor, as she was lying on her backduring the choking incident and trapped on the floor for the eye gouge. The Judgenoted that both attacks were to the head and also involved a serious breach of trust, asthey occurred at her home. The Judge recorded that the attacks caused physical andlong-lasting psychological harm to the victim.[9] Having regard to the principles outlined in Shramka v R, the Judge adopted astarting point of 24 months' imprisonment.4 No personal aggravating factors wereidentified justifying an uplift from the starting point. The Judge reduced the sentenceby 18 per cent considering Mr Mullan's eventual guilty plea. The sentence was4 Shramka v R [2022] NZCA 299; [2022] NZLR 348.reduced by a further ten per cent following consideration of Mr Mullan's genuineremorse, subsequent counselling and enrolment in a Stopping Violence programme.[10] An affidavit sworn by Mr Mullan regarding his personal background waspresented by his lawyer as a cultural report under s 27 Sentencing Act 2002. TheJudge doubted whether a defendant's affidavit could be regarded as a cultural reportbut took its contents into account in any event. With reference to it, the Judge said:5You grew up in Belfast, Northern Ireland during the troubles and I accept youhad a traumatic upbringing. This included twice being kidnapped and put infear of your life. You also suffered a significant head injury although there isno medical evidence about the effects of this. After immigrating to NewZealand as a young man, however, you appear to have led a constructive lifewith these charges being your first violent offences. While I have sympathyfor what you experienced as a child and as a youth, I do not see sufficientnexus between those events and this offending. A significant factor inreaching this conclusion is that, prior to entering into a relationship with thevictim of this offending, you had a 12 year relationship with another womanduring which there was no physical violence. She has written an emailconfirming this. It does not therefore seem to me appropriate to reduce thesentence further on account of what is set out in your affidavit.[11] After taking all matters into account, the Judge reached an end point sentenceof 16 months' imprisonment. He acknowledged Mr Mullan's lack of previousconvictions, his insight into the offending and his efforts at rehabilitation. The Judgeconsidered that the least restrictive outcome was a sentence of home detention.6 Heimposed a sentence of eight months' home detention.The appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal mentioned in Tutakangahau v R, quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".8 It is only5 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 sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.9[13] The main point on appeal relates to the Judge's refusal to provide any creditfor Mr Mullan's background on the basis that he did not consider there was a sufficientnexus 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 theSentencing Act 2002?(b) If it was not, did the Judge nonetheless take those matters into accountwhen reaching his decision?(c) Was the Judge right to conclude that Mr Mullan's background matters didnot 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 SentencingAct 2002?[15] Mr Williams submitted that Mr Mullan's affidavit was appropriately filedpursuant to s 27 of the Sentencing Act. He submitted that the section enables "anyperson" to address the sentencing court as to a defendant's relevant personal mitigatingfactors.[16] Mr Harvey, for the Crown, submitted that the structure of s 27 suggests that theinformation referred to in it is intended to be provided by a third party, rather than adefendant themself.[17] This matter was briefly addressed by the Judge in his sentencing notes, whenhe 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 andcounsel submits this should be received as a cultural report under s 27 of theSentencing Act 2002. I have doubts about whether Parliament intended that areport by a defendant about himself should be regarded as a cultural report forthe purposes of s 27, but I take what you say in your affidavit into account inany event.[18] Although arguably, because the Judge took the matters in Mr Mullan's affidavitinto account in any event, it is not necessary to address whether the sectioncontemplates an offender providing the information referred to in that section. I havedecided that the issue needs to be addressed because the basis for the mitigatingdeduction sought is based on the principles that have been established in the case lawunder 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 mayrequest the court to hear any person or persons called by the offender tospeak on—(a) the personal, family, whanau, community, and cultural backgroundof the offender:(b) the way in which that background may have related to thecommission of the offence:(c) any processes that have been tried to resolve, or that are available toresolve, issues relating to the offence, involving the offender and hisor her family, whanau, or community and the victim or victims ofthe offence:(d) how support from the family, whanau, or community may beavailable to help prevent further offending by the offender:(e) how the offender's background, or family, whanau, or communitysupport may be relevant in respect of possible sentences.(2) The court must hear a person or persons called by the offender under thissection on any of the matters specified in subsection (1) unless the courtis satisfied that there is some special reason that makes this unnecessaryor inappropriate.(3) If the court declines to hear a person called by the offender under thissection, the court must give reasons for doing so.(4) Without limiting any other powers of a court to adjourn, the court mayadjourn the proceedings to enable arrangements to be made to hear aperson or persons under this section.(5) If an offender does not make a request under this section, the court maysuggest to the offender that it may be of assistance to the court to hear aperson or persons called by the offender on any of the matters specifiedin subsection (1).[20] Section 27 has been the subject of much judicial discussion and, most recentlyand 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 andforemost, to draw the offender's community — including, where appropriate,whānau, hapū and iwi — into the courtroom to provide insights into theoffender and to share responsibility for addressing the offender's needs. Itcontains three elements: court-community engagement; obtaining relevantbackground information about the offender; and identifying communityresources relevant to sentence.[139] Thus s 27 interventions can reveal offender background relevant to theconsistency and retributive principles of sentencing; they can suggest how theoffender's community might help the offender to address their offending; andthey can propose alternative sentencing options (as well as pre and post-sentencing options) about which the judge might otherwise have beenunaware. Options might include enrolling the offender in community-basedprogrammes, connecting them to more informal community support networksto aid in rehabilitation and reintegration, or to pro-social mentoring fromwithin the community in order to bring the offender to a better understandingof their own responsibility for the offending. Such options can also serve othersentencing purposes such as deterrence and community protection.[21] This interpretation was further developed by Williams J in para [140] when hesaid:In other words, s 27 was designed to be a means by which the court mightdraw on connections between the offender and their community to betterachieve the purposes and principles of sentencing[22] After observing that there is no rigid formula for the provision of s 27information 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 offenderto speak on their behalf which could also be achieved in a less formal way.1211 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 defendantpreparing material themselves and submitting it under s 27. Recognising that it iscommon place for reports under s 27 to often provide information that is sourced froma defendant, in my view, the section clearly contemplates that a separate person, apartfrom an offender but at an offender's request, can be called by them to speak about thematters outlined in s 27(1). Section 27(5) is also clear that, even if an offender doesnot make a request, the Court can suggest to them that it might be of assistance to hearsuch 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 toabove, in my view, it is clear that s 27 contemplates the further information that mightbe 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 beincluded.[25] I conclude that the Judge was correct to not take into account the defendant'saffidavit as a s 27 report.Did the Judge nonetheless take the matters in the defendant's affidavit into accountwhen reaching his decision?[26] In any event, the Judge did take into account the matters included in thedefendant's affidavit. However, he did not accept that there was a nexus between themand the offending, largely because he formed the view that Mr Mullan had notexhibited any tendency to display violence in his prior 12 year family relationship, amatter supported by a letter provided by Mr Mullan at his sentencing from his formerpartner.[27] The fact that a defendant does not exhibit violent tendencies in one relationshipdoes not necessarily translate to an indication that the same would apply in anotherrelationship. This is because the dynamics of each relationship are different anddepend, to a large extent, on what causes conflict within that relationship and how thatconflict exhibits itself behaviourally by each party.[28] In this case, there is also reference in the pre-sentence report to the victim beingserved with a Police Safety Order and a trespass order by the Police on 14 October2022 following them attending a family harm incident between the parties.13 Thisshould have alerted the Judge to the fact that there were potentially difficult andcomplex relationship issues involved.[29] I therefore conclude that the Judge was not correct to take this into account asa significant factor in deciding there was no nexus established. It was however a factorto be borne in mind.Was the Judge right to conclude that Mr Mullan's background matters did not justifya further mitigating deduction?[30] The Judge accepted certain significant aspects referred to by Mr Mullan in hisaffidavit, including his traumatic upbringing that included twice being kidnapped andbeing put in fear of his life, and that he had suffered a significant head injury. Thelatter was referred to although the Judge correctly noted there was no medical evidenceabout the effects of it. The Judge would have been assisted by this matter beingindependently verified by a medical practitioner. It would also have been helpful tohave provided the Judge with some information about how the impacts of this injurymight play out for the defendant in stressful situations.[31] These background matters, in conjunction with the observation Mr Mullanmade about his relationship with the victim, assist to explain what would otherwiseappear to be uncharacteristic behaviour. A deduction to reflect these matters wouldtherefore have been appropriate but not, in my view, to the extent submitted by MrWilliams. A discount in the vicinity of an extra five to 10 per cent would have beenappropriate but that now needs to be considered with reference to the end sentence andthe Court's ultimate jurisdiction which is only to interfere with a sentence that can befound 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 expressedremorse and the rehabilitative measures he undertook after the offending. The mattersof background that might explain Mr Mullan's response to the triggering eventconcerning the bowl of water would, in my view, have justified an extra deduction ofsomewhere between five to 10 per cent.[33] Taking into account the guilty plea, the deductions could therefore haveamounted to somewhere between 33 and 38 per cent. If the deductions were 33 percent, this would result in an end sentence of just over 16 months' imprisonment. If thedeductions were 38 per cent, the end sentence would be just under 15 months'imprisonment. Translating this into a sentence of home detention would mean theoutcome 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 formitigating matters which he rounded down by 1.28 months.[35] When viewed in this way, the sentence cannot be said to be manifestlyexcessive.Result[36] The appeal is dismissed.____________________Harland JSolicitors:A M S Williams, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.