R v Mulquin

Agreed facts

1. The agreed facts before the Court are detailed. I will summarise them in order to highlight the objective seriousness of each of the matters. One of the requirements for formulating an appropriate sentence is a proper reflection of the seriousness of what was done.
2. Mulquin was released on 8 September 2020. By 9 September, the relationship, despite all their expectations, had turned sour. It is accepted that both were drinking but it was Mulquin, who when drunk, sought to demean and threaten the complainant by words and then, soon after, actions.
3. The first offence in sequence is sequence 4, stalk and intimidate. It relates to the, yelling and calling the complainant demeaning and derogatory names on 10 September 2020: s 13 Crimes (Domestic and Personal Violence) Act 2007.
4. Count 1 (sequence 1) on the indictment, common assault (DV), involved the offender pushing the complainant around the house as he was trying to get the complainant's phone: s 61 Crimes Act 1900. A significance aspect of the offence is his pushing her forehead with force causing it to jolt backwards and his slamming her head into a wall, leaving the complainant off balance and feeling fuzzy.
5. The third offence, sequence 5, destroy or damage property, involved threats and his snapping the complainant's mobile phone in half saying, "This is what you deserve How does it feel to be never able to speak to anybody ever again": s 195(1)(a) Crimes Act on a s 166 Criminal Procedure Act 1986 certificate.
6. Count 2 (sequence 6), another common assault (DV), involved a punch to the head. The complainant was held down on the lounge until she vomited. She had to bite him to get him off her. The act was accompanied by more derogatory terms and threats.
7. Sequence 9, another count of common assault, involved the offender standing over the complainant and a head-butt. He was angry at her because she had hid his alcohol and tobacco and called the police.
8. Count 3 (sequence 13) is the most serious of the offences -it is another stalk and intimidate matter. After yelling at the complainant and calling her derogatory names the offender grabbed a metal pole out of a vacuum cleaner and forcibly placed it across her throat as she lay on the lounge. He used so much force that she started to choke and then vomited. She managed to get away, and in doing so, hit the offender to his side.
9. On 13 September the complainant attempted to get help from a friend by sending her a message; she tried to leave but she was stopped and a wrestle occurred. Sequence 11, is another count of common assault. After her had come to help the complainant the offender used one of his legs to hold the complainant's legs down, he pulled then at her shirt with such force that it cut into her neck. Only the intervention of her friend caused him to let go. She showed her friend a number of the injuries she had sustained, including swollen wrists, bruising and a red lip.
10. She spent a night with her friend and returned to her home, On 14 September she again had to contact the friend and the police were called. She tried to bring herself to complain to the police but couldn't go through with it; she returned to her home.
11. Count 4 (sequence 12) on the indictment is a further count of intimidation. It occurred on 16 September. The complainant wanted to leave her home but the offender prevented her from doing so. He made threats toward her and her pets. There were further arguments and things were thrown. She was pushed onto the bed. Derogatory terms were made toward her. He also said things such as "I'm going to kill you". She eventually called her father and the police were called. The offender fled. When the police arrived she told them that she was "really scared" and she thought that he would probably kill her.
12. When he was arrested, the offender showed some resistance for which he has subsequently apologised. He initially denied ever being physically or verbally violent. He maintained those denials. When the matter was before the Local Court he was committed for trial to this Court. It would appear after having done some further courses in custody he accepted responsibility for his crimes and on 15 June 2021 guilty pleas were entered.

Assessing the matters for sentence

1. The indictment now before the Court has two counts of common assault, and of Intentionally choke, and stalk and intimidate; respectively section 61 section 37(1)(a) Crimes Act and section 13(1) Crimes (Domestic and Personal Violence) Act. There are also five summary matters for sentence on a Criminal Procedure Act 1986 "related matter" s166 certificate; contravene prohibition in an apprehended violence order; a further count of stalk and intimidate; damage property and two further counts of common assault. It is accepted that I will impose an aggregate sentence. In doing so, I have to appropriately reflect in each indicated sentence all of the purposes of the sentencing, in particular, the seriousness of what was done. I then have to formulate an appropriate sentence which properly recognises all of the harm that was done and the case for the offender and synthesise those matters together with purposes of sentencing.
2. The total sentence imposed must be just and appropriate to what was done and properly reflect the individual circumstances of the case put for the offender.
3. The orders were in breach of an Apprehended Violence Order and there is one other sentence which relates to those breaches. The offences were committed while on conditional liberty, having served the custodial portion of the sentence for other crimes against this complainant. When someone ignores conditions of liberty, when someone ignores orders of a court designed specifically to protect vulnerable complainants, those matters operate to aggravate the sentences that must be imposed. I have to be careful not to double count matters in aggravation.
4. All of the offences come under the heading, domestic violence offences. That heading could never be used to minimise the seriousness of what occurred. It has long been well known to people who practiced in the area but it bears repeating - domestic violence offences are not minor offences. This was recognised by the High Court in The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 (2016) 91 ALJR 131. Whatever past sentencing practices were, general society attitudes to such matters have changed. It is now recognised how dangerous violence within a relationship can be.
5. It is also recognised that inherent to domestic violence offences is the abuse of a relationship of trust. In such matters a complainant may see herself as a victim, hopefully eventually as a survivor. Courts recognise the special dynamics of such offences. Complainants are, as the facts of this matter make absolutely clear, personally targeted. That targeting is part of the larger picture of physical and mental violence; where the offender exercises power and control. As here it involved the exercise of coercive power over another human. In the face of such a continued threat a complainant may never feel truly safe, of all matters that is a prime feature in each of these offences: R v Burton [2008] NSWCCA 128.
6. I have to fix an appropriate sentence for each matter. Each indicated sentence should reflect the relative seriousness of the offence. But I need to take into account their persistence, the accompanying derogatory comments, the threats to kill, which at times, entirely understandably, the complainant felt might be carried out. Some offences that involved attacks to the head. The choking offence could have led to death. All these all matters that have to be synthesised and individually reflected in the sentences.
7. Given the course of the offender's conduct no one offence could possibly cover all of the matters that require appropriate punishment. There must be some accumulation of sentences.

Maximum penalties

1. I must have regard to the maximum penalties as one guide to the exercise of my sentencing discretion. Common assault carries two years imprisonment; section 37(1), intentionally choke, five years imprisonment; and stalk and intimidate, section 13(1), five years imprisonment.

Victim Impact Statement

1. The Victim Impact Statement was read to me this morning: exhibit B. It is clear that the complainant still needs time and space to deal with her own personal problems. She clearly still has a degree of affection for the offender and I am sure that, when he is sober and non-violent, there may be reasons for that. She has a number of pre-existing conditions but this matter has taken an additional toll on her emotional and physical health. She has had to move house and she has lost the hope she had for a future with the offender.

The case for the offender

1. Although not on oath, I have received and will have regard to a letter written by the offender: exhibit 3. I am sure that, in custody and sober, he means what he says. I am sure that, in every course he has done, both during his last sentence last term and while on remand, he has diligently sought to learn the important lessons those course teach. But as Ms Lasschuit, the solicitor who appears for the Director of Public Prosecutions, made clear in her submissions to me, good intentions have to be followed up by good actions. And, to date, Mulquin has failed to meet his own expectations, let alone the expectations of the Court, his parole officer and his former partner.
2. Any conclusion I make as to his prospects for rehabilitation must accordingly be guarded. I am sure that he, as he says in his letter, wants to deal with his alcohol problem and his other problems. He needs to deal with his destructive addiction to alcohol. He speaks of "bad choices" and "bad decision making." There is no evidence, in the material before me, that from the moment he started drinking on his release he was capable of making correct decisions. It it is abundantly clear, from all the material before the Court that unless he engages in alcohol rehabilitation, preferably some form of residential program to enable a graduated release in to the community, he is a danger to himself but, more importantly, to any future partner that he might have.
3. I am sure the expression of remorse in his letter is genuine but it has to be followed up by actions. He told me, "I would like to take this time to formally apologise first and foremost to [my partner]", "and to those indirectly affected. I will continue to strive and overcome my addiction to as to make logically sound and progressive decisions that will promote a healthy lifestyle and appropriate and adjustment behaviours with the community by respecting my conditions are most importantly of all." I accept those are genuine statements but I am also sure he has made them before.
4. I will, by a finding of special circumstances, giving an opportunity to prove himself in the community.
5. There is a report of Ms North before the Court: exhibit 1. What she says is matched by other material before me. The history set out is uncontroversial. She says his childhood was strict and there were examples of domestic violence in the home. He was able to complete school and obtain employment but it would appear that he took up the use and abuse of alcohol when still a teenager and, by his late teens, was binge drinking. There was a history of problematic alcohol use, which is reflected in the criminal record that is before me, since then. By the time he was in his 30s and 40s he was experiencing memory problems, cognition impairments and mood disorders. He experiences some of the changes often associated with Korsakoff's Syndrome, his alcohol abuse has clearly caused a lot of damage.
6. Ms North says a referral to a residential rehabilitation facility on release should be considered. Given all the material before me, I think it is essential but that determination is for the State Parole Authority to make. He certainly will require supervision on release.
7. Ms North recommends Mr Mulquin see a neuropsychologist and that he gets as much help so far as substance abuse as he can. She notes that he has already completed the EQUIPS Addiction program in custody, he will also need relapse prevention counselling. She believes that he may get some assistance from a drug called Antabuse which might help him maintain abstinence. She recommends that Justice Health be approached to provide this medication. I will have a copy of Ms North's report sent with the warrant to Corrective Services.

Submissions

1. I have the benefit of the comprehensive submissions from Ms Lasschuit and Mr Fraser, Public Defender who appears for Mulquin. Ms Lasschuit sets out, in short form, a table noting factors relevant to objective seriousness of each offence; to which I have already gratefully referred. She notes his record of previous convictions and that these offences occurred in the home and while the offender was subject to conditional liberty. She points to what she describes, and I accept, is a serious course of domestic violence offending over a period of a week. She stresses the need for general deterrence but, in particular, specific deterrence and the need to recognise the dignity of the victim, referencing Munda v Western Australia [2013] HCA 38. She submits his prospects for rehabilitation are guarded.
2. Mr Fraser accepts those categorisations and the only formal matter in mitigation he can point to is the plea of guilty. He noted that the offender has served his time on remand, subject to all the restrictions placed on prisoners because of the pandemic. I note that for a person who suffers anxiety, it is a particularly anxious time in the community, let alone for people who are locked down. He cites an earlier decision of mine Perrin v R [2021] NSWDC 408, where I had regard to recent decisions from the Victorian Supreme Court of Appeal which noted, plea of guilty entered during the currency of that pandemic is worthy of greater weight in mitigation and amelioration of sentence than a similar plea entered at a time in the community in the courts are not affected by the pandemic.
3. He drew my attention to matters in the subjective case for the offender; to which I have already referred. He concedes that the offending is serious. He asks for moderation of the aggregate sentence because it occurred so soon after release to parole but he also accepts that there must be some increase in the sentence because of the breach of the conditions of his conditional liberty. He asks for moderation in terms of accumulation and concurrence. Mr Fraser's ultimate submission to me was that Mr Mulquin is "not a lost cause", there are some positive aspects in his letter and his engagement with the treatment and that an opportunity should be given him to prove himself- one more time.

Synthesis

1. The indicated sentences will be reduced by 10% to take into account the utilitarian value of the guilty pleas. I have had to do some rounding as it is not appropriate to indicate sentences in days, weeks or hours. The maths give a benefit one way and might take away in others. I have sought to balance these swings and roundabouts. Importantly, I have taken care in the process of accumulation not to undermine or erode the discount for the plea of guilty. I have allowed a finding of special circumstances because there will be a accumulation of this sentence, partially, on that imposed for the balance of parole. Again, I have sought not to double count such matters. There must be a significant sentence and accumulation is another reason for a finding of special circumstances.
2. The minimum term is the very minimum that Mulquin deserves to reflect the objective seriousness of the offence and, as Ms Lasschuit noted, by her reference to Munda, it would be wrong to accept that a victim of violence in the domestic context somehow less in need of or deserving the protection and vindication. The Court should, in the sentence imposed, an attempt to vindicate her dignity and to express the community's disapproval of reoffending.

Orders

1. Synthesising all those matters and working down, taking the charges in the order that have been set out in the outline of submissions. 1. Count 1 (sequence 1): I indicate a sentence of 11 months; 2. Count 2 (sequence 6): I indicate a sentence of one year and four months; 3. Count 3 (sequence 13): I indicate a sentence of two years; 4. Count 4 (sequence 12): I indicate a sentence of one year nine months; 5. Sequence 2: I indicate a sentence of eight months; 6. Sequence 4: I indicate a sentence of three months; 7. Sequence 5: I indicate a sentence of five months; 8. Sequence 9: I indicate a sentence of 11 months; 9. Sequence 11: I indicate a sentence of one year, one month.
2. The aggregate sentence will commence on 16 February 2021. There will be a non-parole period of two years which will mean Mulquin is eligible for consideration for release to parole on 15 February 2023. There will be a parole period of one year and six months, starting on 16 February 23, and expiring on 15 August 2024. A total sentence of three years, six months.
3. Sequences 7, 8 and 10 will be withdrawn and dismissed.

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: 07 December 2021