By Paul Gregoire and Ugur Nedim
On 11 September 2014, David Mulligan was walking his dog along a street in Alexandria, when another man approached walking two boxer dogs. All of the canines were on a leash. As they got closer, the boxers lunged at Mr Mulligan’s dog.
A brief scuffle ensued, but the dogs were quickly separated. The other man restrained his boxers, as he leant back against a car. After exchanging words, Mulligan picked up his dog and took it into a nearby car repair business, and left it inside.
Mr Mulligan then returned to where the other man was still standing against the car with a dog leash in each hand. Mulligan paced back and forth in front of the man, as the two continued speaking.
Mulligan then walked up to the man and punched him three times in the face. The other man could do nothing to defend himself as he was holding onto his dogs. Mulligan then retrieved his own dog and fled the area.
The victim suffered severe injuries, including several fractures to the face, which required the insertion of five metal plates. He also sustained collapsed sinuses and nerve damage to the side of his mouth, which resulted in slurred speech.
A guilty plea
The offence carries a maximum penalty of ten years imprisonment, and a standard non-parole period (SNPP) of four years.
An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars, before being eligible to apply for release on parole.
Mr Mulligan’s case was committed to the District Court for sentencing before Judge Maiden. A set of agreed facts had been prepared based primarily upon CCTV footage that was obtained from a local commercial establishment.
“Why would I want to look at the video?”
Despite the facts being agreed, prosecuting DPP lawyer Mr Wright requested that Judge Maiden view the two minute CCTV footage.
The defence lawyers initially agreed to this, as they wanted to show that a part of the prosecution’s written submissions was at odds with the footage. But the defence then changed its position.
Mr Wright’s basis for insisting that the footage be viewed was that, in his view, Mulligan was going to take the stand and give testimony that was inconsistent with the footage. However, His Honour refused to view the footage, stating that he didn’t “see how it’s relevant frankly,” as the facts had already been agreed.
The DPP solicitor was not content with this, submitting the footage must be viewed as it showed that Mr Mulligan “turned around and blithely walked right alongside the two larger dogs” – raising the inference that Mulligan was not concerned for his own safety.
However, the judge questioned the prosecutor as to the wording of his phrase. “What does it mean ‘and blithely walked right alongside the two larger dogs’?” His Honour asked, adding that he would not accept submissions “in this form,” as they should be “based on the evidence,” and in this case, the evidence was the agreed facts.
Mr Mulligan did indeed take the stand, testifying that he feared for his dog’s safety, as well as his own. He gave evidence that the victim said to him, “Get fucked you Irish cunt before I smash your face in.” He also said the man was waiting for him outside the garage.
The DPP solicitor reiterated his request that the judge view the footage, submitting this was essential in light of Mulligan’s testimony.
His Honour refused, asking “Why should the court here be put to the situation of having to view film where I will have to make a finding of facts, when there are agreed facts?”
On 30 October 2015, Judge Maiden sentenced Mr Mulligan to 15 months imprisonment, but suspended the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999. Mulligan was also ordered to pay $15,000 in compensation to the victim.
The refusal was in error
The Crown appealed the inadequacy of Mr Mulligan’s sentence on five grounds, on 4 March last year. All those grounds were upheld by the NSW Court of Criminal Appeal (NSWCCA).
One of the grounds was that the sentence was “manifestly inadequate.” Mr Adams, counsel for the Crown, submitted that a significant aspect of this ground “related to his Honour’s refusal to view the CCTV footage.”
Justice Harrison of the NSWCCA found that the trial judge was in fact in error when he refused to allow the CCTV footage to be shown, and that he gave no considered written reasons for doing so.
His Honour said there were two reasons why the “refusal was in the circumstances a denial of procedural fairness.”
The first reason was that in giving evidence, Mr Mulligan stated that he had been provoked by what the victim had said to him, and this was not included in the agreed facts. Justice Harrison explained that the footage may have “informed the suggestion” of whether the provocation had indeed occurred.
An unfair criticism
His Honour said the second reason was that the trial judge had been critical of the prosecution’s submission because it went beyond the facts that had been agreed to, “even though the agreed facts specifically mentioned the CCTV material.”
According to Justice Harrison, it was “unfair” for the trial judge to “have adopted the position that the Crown’s submissions were somehow impermissibly extravagant or, by implication, inaccurate or misleading,” especially in circumstance where he refused to allow the prosecution to produce material that could have justified its argument.
In other words, it was unreasonable for Judge Maiden to criticise the prosecution’s submission on the one hand, and then deny “the practical ability to respond to it”.
Justice Harrison continued that the trial judge’s “error alone enlivens the requirement that this court consider whether or not Mr Mulligan should be resentenced.” As the other grounds of appeal were upheld, resentencing is exactly what the NSWCCA did.
Quashed and resentenced
General deterrence had to be considered when resentencing, due to “the random and unpredictable nature of the violence perpetrated upon an innocent victim,” His Honour remarked. This was despite an assessment that placed Mulligan at a low risk of re-offending.
Justice Harrison determined that the proper starting point was a sentence of two years, and a 25 percent discount on this would be applied due to the early guilty plea. Mr Mulligan was sentenced to 18 months imprisonment, with a non-parole period of 12 months.