R v Mulligan

District Court of NSW|2019-05-02

Solicitors: Ms C Black (Crown) Blair Criminal Lawyers (Mulligan) File Number(s): 2017/245482

The Offence

The offender Peter Mulligan, born in 1988, comes before the court for sentence in relation to one offence to which he pleaded guilty on the first day of trial at the Downing Centre on 3 December 2018. There is some controversy as to the effect of this plea, to which see below. The offender is charged with knowingly take part in the supply of 28.21 grams (g) of cocaine under Section 25(1) of the Drug Misuse and Trafficking Act 1985 (the DMTA) and is count 3 on the indictment. The maximum penalty for this offence is imprisonment of up to 15 years and/or a fine of 2200 penalty units. There is no standard non-parole period for this offence.
I am also asked to take into account a Form 1 offence (sequence 3), knowingly take part in the supply of 6 g of MDMA, contrary to section 25(1) of the DMTA. The date of all of the offences was 11 August 2017. There are two related offences that are specified on a s166 certificate which are to be withdrawn on sentence. They are possess a prohibited drug, to wit cocaine, and possess a prohibited drug, to wit MDMA, both contrary to section 10(1) of the DMTA (sequences 5 and 6).

Agreed Facts

The Agreed Facts for the purpose of the sentence signed by the solicitor advocate for the DPP and the offender are as follows. At approximately 9:50 pm on Friday 11 August 2017, plainclothes police were patrolling along Crown Street in Surry Hills. They observed a man walking on the street texting on his mobile phone and looking around the street. Police observed him turn onto Arthur Street and stop as though waiting to meet someone.
A short time later Aleksandar Stefanovic walked up and met the male. Police observed the two men shake hands and appear to exchange items before walking away from each other. Police believed that a drug sale had taken place. The male was stopped by police and searched. He had on his person one bag of white powder which he admitted buying from Stefanovic for $300.
Stefanovic was observed entering the front passenger seat of a silver Toyota Yaris parked in the driveway. Peter Mulligan was occupying the driver's seat. Mr Mulligan is the registered owner of this vehicle. Both Stefanovic and Mulligan were wearing business attire.
Police approached and cautioned Stefanovic and Mulligan. Mulligan stated 'I just reversed into the driveway to do a U-turn'. Stefanovic declined to answer any questions. The vehicle was searched and police observed Stefanovic holding a ball of paper towel in his left hand. Inside was a clear resealable plastic bag containing 10 black capsules and 11 clear resealable plastic bags of white powder. These were later analysed as MDMA and cocaine. Police located $300 in $50 notes and $95 in loose change in Stefanovic's pocket.
Police removed the control panel on the front passenger door and located a black pencil case. It contained: 1. A sealed envelope containing $2250 in cash; 2. One clear resealable plastic bag of white powder analysed to be cocaine; 3. Two 'sandwich bags': 1. One containing 30 clear resealable plastic bags of white powder analysed to be cocaine; and 2. One containing five clear resealable plastic bags which in total contained 49 black capsules. These capsules were analysed to be MDMA; 1. A spare mobile phone battery; and 2. Elastic bands.
Police also located one clear resealable plastic bag of white powder in plain sight behind the centre console on the front passenger footwell. This was analysed to be cocaine.
Police removed a small panel on the centre console and located two Samsung mobile phones and an amount of cash in $50 denominations, tied with an elastic band. It amounted to $6000.
Mulligan and Stefanovic were arrested and taken to Surry Hills police station. They each declined an offer to participate in an electronically recorded interview.
In total police seized: 1. $8645 in cash; 2. 43 bags of cocaine weighing a total of 29.11 g; and 3. 59 capsules of MDMA weighing a total of 6 g.
Stefanovic's DNA profile was recovered from one of this resealable plastic bags, the zipper on the pencil case and the front of the envelope.
The matter came before me on 2 May 2019 when I stood it over for sentence to 27 June 2019 and ordered that a Sentencing Assessment Report (SAR) be produced.

The Evidence

The Crown tendered a bundle of documents marked Exhibit 1 comprising the following: 1. The Indictment (Mr Mulligan's offence appears at count 3); 2. The Form 1 and Court Attendance Notices (sequence 3); 3. The s166 certificate and Court Attendance Notices (sequences 4 and 5); 4. Agreed Facts for sentence; 5. Mr Mulligan's criminal history (of which there is none); and 6. Mr Mulligan's custodial history other than relating to this offence (of which there is none).
Mr Mulligan's counsel, Mr Buchen SC, tendered a bundle of documents marked Exhibit 2 comprising nine tabbed documents: 1. At Tab 1, there is a forensic psychologist report of Diana Grujoska dated 15 April 2019. In this report Ms Grujoska notes Mr Mulligan's challenging upbringing, including having two parents with significant mental health issues. As a result he was largely raised by his grandparents. Throughout school (when he was significantly overweight) the offender was constantly bullied, both physically and emotionally. This caused him to underperform at school. Ultimately at age 16, he reconnected with his mother, who by then had a daughter (his half-sister), the offender's half-sister. Over time, he has developed a close and loving relationship with his mother and sister, the latter of whom suffers significant health issues requiring frequent attendances at the Royal Alexandra Hospital for Children at Westmead. Although Mr Mulligan finished high school and achieved a score of 80 on the HSC, he found it difficult to find employment that he liked and could devote himself to. This, of course, is not unusual for a young person. In any event, by age 25 he had obtained work in gardening and property maintenance, employment he has maintained since then. Mr Mulligan reported significant body image issues and has engaged in 'exaggerated participation' in diets and exercise for most of his life. He sleeps poorly, suffers from anxiety and has had difficulty forming long-lasting friendships and relationships with others throughout childhood and adulthood, although he currently is in a stable, supportive relationship. He has never had drug or alcohol addictions. Ms Grujoska notes that despite his general mistrust of others after many years of bullying, it seems he was able to connect well with his co-offender Mr Stefanovic and likely engaged in unlawful behaviour 'in an attempt to maintain this relationship', as he was likely to submit to the will of another in order to maintain affection and continue the relationship. She says that due to Mr Mulligan's current mental health state and history of bullying, it is recommended that he be referred to a psychologist experienced in providing cognitive behavioural therapy (CBT). She recommends he obtain a Mental Health Care Plan and that he take up the 10 sessions of individual therapy per calendar year offered under the Better Access to Health Initiative funded by Medicare. In Ms Grujoska's opinion, the offender is at a very low risk of re-offending. 2. At Tab 2, there is an apology letter from Mr Mulligan dated 25 April 2019 noting his remorse for his 'thoughtless and stupid' actions, his understanding that drugs are dangerous for users and the flow-on effect to users' families and the public generally. He says that he takes full responsibility for his criminal behaviour. 3. At Tab 3, there is a reference from Kim Mulligan dated 2 April 2019. Kim Mulligan is the offender's mother. She notes that Peter lives at home with her and his 14-year-old sister Isabella, and that Peter regularly helps out by driving Isabella to medical appointments, especially as Kim Mulligan suffers from anxiety and is terrified of driving on freeways. He often collects Isabella from school and helps them financially in a significant way. She says that 'we would not be able to manage financially without him. If it wasn't for Peter living with us, we would not be able to stay in the home we have been in for the past seven years'. She reports that Isabella loves her brother very much, and that it broke Peter's heart to explain his criminal behaviour to his sister and that he now has a better understanding of how drugs affect the lives of users, their families and the wider community. Ms Mulligan also notes the offender's history of bullying and how it affected his capacity to form friendships, and his fear of losing those friends he does have. 4. At Tab 4, there is a reference from Sandra Rossi dated 3 April 2019. Ms Rossi is the offender's stepmother. She has known Peter since he was nine years old and helped support him through high school. She notes that she was shocked when she heard of the matter presently before the court, and expresses a view that he is 'not the type to get into trouble'. As a result of this incident, Ms Rossi accompanied Peter to a Narcotics Anonymous meeting where he was permitted to attend as an observer so that he could come to terms with the consequences of his behaviour and see the ramifications of drug supply on the broader community. She describes this experience as an 'eye-opener' and 'life-changing' for Peter. This, along with spending several (four) days in custody, have made him 'more determined than ever to apply himself and to work towards a successful, law-abiding future'. 5. At Tab 5, there is a reference from Isabella Bezzina dated 1 April 2019. Isabella is the offender's younger sister. She notes that he is kind and generous and a very good big brother with 'a really good heart'. She says that he regularly takes her to medical appointments even though it is a 40 minute drive from their house, that he helps with shopping and cooking if their mum is tired and that he is 'always there for me, to cheer me up and make me feel better, every girl should have a brother as great as mine'. 6. At Tab 6 there is a reference from Dr Kieran Stewart dated 23 March 2019. Dr Stewart is the head researcher for the National Redress Scheme into Institutional Child Sexual Abuse at the Department of Social Services, Canberra and an adjunct academic at the University of Western Sydney. He says that he has known the offender for several years and considers him to be a close family friend. He observes that 'Peter continually exudes a kind and thoughtful nature, where he is always demonstrably willing to offer a helping hand to those that are in need of it'. He says that he will endeavour to support the offender in the future. 7. At Tab 7 there is a reference from Eddie Nigro dated 3 April 2019. Mr Nigro is the owner of Creative Refreshments, a mobile food business. He is the offender's current employer. The offender also works for Mr Nigro during the week, as Mr Nigro is the owner of MTS Property Maintenance, which provides property maintenance services for a number of real estate agents. He notes that 'Peter has been working with me since 2014 and has proven to be a hard worker and is always willing to put in extra hours and effort to ensure the business succeeds. I am so impressed by his dedication, I am planning to expand the business by buying another food truck for him to manage on his own each weekend. I have confidence in Peter's ability to work unsupervised'. He notes that he is 'here to support Peter at work, but also as a friend, and will provide the structure he needs to ensure he will not be before the courts ever again'. 8. At Tab 8 there is a reference from Rocco Pollifroni dated 1 April 2019. Mr Pollifroni is the proprietor of MARF Enterprise Pty Ltd, trading as Rocky's Property Maintenance, where Mr Mulligan works for 5-10 hours a week. Mr Pollifroni notes that 'Peter is always very cooperative, helpful and willing to put in the hard work'. He describes Mr Mulligan as 'stable and reliable' and as 'a true professional'. He notes that Mr Mulligan's job is secure with Mr Pollifroni as long as he returns to a 'law-abiding life'. Mr Pollifroni says that the offender has demonstrated to him a real insight about the 'shocking' effect drugs have in people's lives. 9. At Tab 9 there is a reference from Nemer Jabbour dated 16 April 2019. Mr Jabbour has known Mr Mulligan since Mr Mulligan was born and considers him to be a member of his family. Mr Jabbour is the proprietor of De Novo Foods, a meat wholesale business in Sydney, where Peter has worked at times since the age of 10 and where he started an apprenticeship after completing the HSC. Mr Jabbour noted that he 'would employ Peter again if he ever wanted to return to De Novo Foods' and is 'here to support him in the future'. He noted that the offender now understands the devastating impact drugs have on users, their families and the community.
I note that all the referees were informed of the offence Mr Mulligan has been charged with and the facts of the case.
Since counsel last appeared before me I have received a Sentencing Assessment Report dated 3 June 2019, under the hand of David Plowright, Community Corrections Officer. That document notes that the offender resides with his mother and sister, that he is currently the sole financial provider for the household, that he is not in contact with his father, that he is in a supportive relationship with his partner of three years, that he is currently employed full-time as a heavy machinery operator and landscaper, and that he has no criminal history. It notes that Mr Mulligan 'appeared to express remorse for his offending behaviour, that he was not coerced into engaging in the criminal act and was not going to be remunerated in any form for his part, that he was solely driving Mr Stefanovic around and was not engaged in the supply of illicit drugs, and that Mr Mulligan further denied any involvement or use of illicit drugs outside the current offences. The report notes that Mr Mulligan had been friends with the Mr Stefanovic for over a decade, that he had agreed to engage in the criminal activity as a favour to his friend, that he was aware of Mr Stefanovic's prior involvement in illicit drugs before the offences, that he had low self-esteem issues which contributed to his inability to form friendships, and that he did not want to risk his friendship with Mr Stefanovic.
Mr Plowright notes that Mr Mulligan appeared to acknowledge the impact his offences have had upon his family and partner, and the impact of illicit drugs upon the community. He also appeared willing to engage in interventions to address any underlying mental health issues which may have resulted in his offending behaviour and to undertake community service work.
Mr Mulligan was assessed as being at a low risk of reoffending and deemed suitable to undertake community service work. Community Corrections can provide up to 20 hours of work per month.
I was greatly assisted in this matter by the thoughtful submissions of Ms Black on behalf of the Crown and Mr Buchen SC on behalf of the offender.

Submissions of the Crown

The Crown submitted that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 had been surpassed with respect to Mr Mulligan, and that no penalty other than imprisonment would be appropriate.
The Crown accepts that the role of Mr Mulligan was less serious than that of his co-offender Mr Stefanovic and amounted to the role of a driver, but emphasised that a vehicle registered to his name was being used during the course of the offence, and that two panels in his vehicle had been modified so that drugs could be concealed within them. The Crown suggests that there was an element of pre-meditation to his offending. The Crown notes that one of the bags of cocaine was on display, but that there were 28 bags found in the car, and that police found a significant amount of drugs concealed in the offender's vehicle.
Ms Black conceded that the seriousness of the this particular offence falls at the lower end of the spectrum, a submission with which Mr Buchen SC agreed.

Submissions of Mr Mulligan

Mr Buchen SC made a number of submissions on behalf of Mr Mulligan.
Concerning the offender's role and the seriousness of the offence, he noted that Mr Mulligan's level of offending was lower than that of his co-offender Mr Stefanovic, and was limited to driving his co-offender around and permitting drugs to be concealed in the car, and did not include dealing directly with any customer or personally profiting from the activity. The offending was limited to one day, and whilst the weight of the cocaine did exceed an indictable quantity as it was over 5 grams, it was at the lower end of the applicable quantity range at 28.21 grams. He also noted that the offence lacked sophistication, as the motor vehicle was registered in his client's name.
Mr Buchen SC says, and I accept, that I am to consider whether increased weight should be given to the factors of personal deterrence and retribution when sentencing for the principal offence on account of the additional matter. [1] He suggests that the additional offence of knowingly take part in the supply of 6 grams of MDMA was committed on the same occasion for the offence which the offender is to be sentenced and does not introduce significant additional criminality. He argues that 'the principle of totality may operate to limit the extent to which additional weight can be given to the said factors in a particular case', [2] and suggests that this is such a case. As I have said, I accept that submission.
Concerning the offender's subjective case, Mr Buchen SC noted that Mr Mulligan entered a plea as soon as the charges were altered by the Crown to their current level, which he conceded was just one week before the sentence came before me, but that this was immediately after the Crown made their offer, and he therefore submitted that a discount of 15% would be appropriate. He notes also that the offender: 1. Has no record of previous convictions; 2. Was a person of prior good character; 3. Is unlikely to reoffend and has good prospects of rehabilitation, a submission supported by both Ms Grujoska and Mr Plowright; and 4. That the evidence demonstrates the offender's remorse and understanding of the seriousness of the offence, demonstrated in particular by his attendance at a Narcotics Anonymous meeting with his step-mother to better understand the harm caused by drug use.
Mr Buchen SC notes that Mr Mulligan's upbringing involved deprivation and dysfunction, to the extent that the judgment of Simpson J's observations in R v Millwood [2012] NSWCCA 2 of a person who did not have a 'normal' or 'advantaged' upbringing would apply to this offender in a 'muted way'.
Mr Buchen SC suggested that Mr Mulligan plays a significant role in supporting his mother and sister, that he would benefit from ongoing therapy and that a custodial outcome would visit a degree of hardship on Mr Mulligan's family, one of the relevant factors 'in the general mix' which I can take into account when determining the appropriate sentence: Carter v R [2018] NSWCCA 138 at [68].
Critically, in the determination of this sentence, Mr Buchen SC submits that the section 5 threshold has not been crossed, that the offender should receive a criminal conviction and a Community Corrections Order (CCO) with appropriate conditions, including a community service component.

Sentencing Approach

The purposes of sentencing are expressed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As often occurs, the facts and circumstances of the present offences and this offender highlight how the various purposes of sentencing pull in competing directions.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: 'The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) [(1988) 164 CLR 465, at 476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen(No 2) [at 476] in applying them'.
In making the orders I will make, I have taken into account the various purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999, and I have taken into account the aggravating and mitigation factors in section 21A. I have had regard to section 5 of that Act, and I find that I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, notwithstanding the seriousness of the offences on the indictment and on the Form 1. I find that a CCO is appropriate in all of the circumstances. These circumstances include: 1. The offender pleaded guilty on the day the matter was listed for trial in the District Court. I do not have to decide whether or not a discount of 10% or 15% would have been appropriate; 2. There is a very strong case in favour of the offender's prospects of rehabilitation, as supported by the report of Ms Grujoska, the report of Mr Plowright and the many testimonials from colleagues and family members of Mr Mulligan that are before me. I am satisfied that the offender is unlikely to reoffend; 3. The offender has demonstrated a good deal of insight into his offending behaviour, and the impact that the supply of drugs has on the community at large. I am satisfied that the offender appreciates the seriousness of his offending and that he is genuinely remorseful for his offending behaviour; and 4. The offender's lack of criminal record and his prior good character.

Parity

The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different.
Taking into account the relativities and differences between the offending of Mr Mulligan and his co-offender Mr Stefanovic, and in particular the significantly lesser involvement of Mr Mulligan and the objective seriousness which is lower in the present case, I am satisfied that the sentence I will impose is justified in light of the differences in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge.

Orders

I make the following orders: 1. The offender is convicted of the charge of knowingly take part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the DMTA. 2. I make a Community Correction Order relating to Mr Mulligan. 3. The order is to date from 27 June 2019 and last for 18 months, expiring on 26 December 2020. 4. I dismiss the charges on the section 166 Certificate. 5. The following conditions apply: 1. The offender must not commit any further or other offence; 2. The offender must appear before the Court if he is called upon; 3. The offender is to arrange for a Mental Health Care Plan with his general practitioner so that he can attend a psychologist for 10 sessions of therapy offered under the Better Access to Health Initiative funded by Medicare; and 4. The offender is to undertake community service work of 150 hours, and he should report to the Burwood Community Corrections Office within seven days of the date of these orders, and no later than 4 July 2019.

Endnotes

Crimes (Sentencing Procedure) Act 1999; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42].
Ibid. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2019

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