R v Mulholland[2001] QCA 480

COURT OF APPEAL

de JERSEY CJ

MACKENZIE J

CHESTERMAN J

CA No 122 of 2001

THE QUEEN

v.

ROSS BARRY MULHOLLANDApplicant

BRISBANE

DATE 05/11/2001

JUDGMENT

THE CHIEF JUSTICE:  The applicant pleaded guilty to a number of serious offences all committed on 5 October 1999.  In the mid-morning of that day, two police officers detected a Commodore vehicle driven by the applicant with one female passenger who was his co-offender in respect of some of the counts.  They pursued the vehicle utilising their own vehicle's siren and flashing lights.  The applicant sought to evade them, inferentially, because the back seat and boot of the Commodore obtained components of a methylamphetamine laboratory; written instructions for production of the drug were also within the vehicle along with a loaded automatic nine millimetre pistol.

The protracted pursuit covered approximately 16 kilometres including a motorway and other suburban roads.  The speed of the Commodore reached very high levels, more than 210 kilometres per hour, for example, on the motorway with other traffic in the vicinity.  The applicant's pattern of driving included collisions with other vehicles, a U-turn against the flow of traffic, straddling the centre line forcing other oncoming vehicles to leave the road, speeding in the presence of pedestrians, crossing a median strip into the path of oncoming traffic, driving through a red light, and mounting a footpath narrowly missing school children.

At one stage at a shopping centre in Kingston Road with many people about, the applicant stopped the Commodore by heavy application of the brakes and proceeded to fire at least three shots in the direction of the windscreen of a police vehicle.  None of them hit the vehicle but one did pass through the windscreen of a bread van being driven by a Mr Furlong.  Mr Furlong was struck by flying glass and by part of the jacket of the bullet.  The learned Judge observed that Mr Furlong was lucky not to have been killed.

The chase ended when the applicant lost control of the Commodore and it collided with a tree.  Two police officers, Lees and Panno, were in the vicinity.  The applicant's co-offender, the passenger, surrendered to the police.  The applicant, however, fired his pistol at Police Officer Lees.  Panno, who was behind Lees, took shelter in the police vehicle.  Lees returned the fire.  The applicant continued to fire directly at Lees stopping only when he ran out of ammunition.  The applicant fired at least eight shots at Lees.  The learned Judge said that Lees was "fortunate indeed not to be killed".

When his supply of ammunition was exhausted, the applicant surrendered to the police.  A small bag of cannabis was then found in his possession.

With the agreement, indeed the encouragement, of both the prosecutor and defence counsel, the learned Judge assessed what he saw as the overall criminality characterising the offences and having determined upon a proper penalty imposed that for the most serious offence, then imposing lesser concurrent terms of imprisonment for the others.  In the result, the applicant was sentenced to 10 years imprisonment for the offence of attempting to strike the police officer Lees with a projectile in order to prevent lawful arrest, an offence commonly termed a malicious act with intent.  The maximum penalty for that offence was life imprisonment.

Principally for record purposes, I mention now the other concurrent terms imposed.  For the dangerous driving, he was sentenced to the maximum of three years imprisonment.  Plainly, the case fell into the worst category of offending in that respect.  For the serious assault on the police officers involved earlier in his firing at the vehicle, the applicant was imprisoned for 18 months.  The unlawful wounding of the bread vendor, Mr Furlong, also attracted 18 months imprisonment as did the other instance of serious assault in respect of the police officer Panno. 

The drug offences led to the imposition of the following gaol terms, also to be served concurrently: possession of instructions for producing methylamphetamine, one year's imprisonment; possession of the equipment going to make up the amphetamine laboratory, two years imprisonment; and possession of cannabis, three months imprisonment.

At the time he committed these offences, the applicant was 48 years old.  He had a substantial prior criminal history extending from burglary in 1968, then to an extent of drug offending in the 80s and further drug offending in 1996.  He had previously been imprisoned.  He was only about six months out of a period of parole. 

The learned Judge was apprised of the applicant's considerable long-standing drug problems including amphetamine addiction.  At the time of this offending, he was considerably affected by what the Judge termed grossly excessive drug abuse. 

One of the expert witnesses, a psychologist, Mr Kerr, inclined to the view that this offending occurred in the context of what he termed a drug induced psychotic episode.  That provided no basis for general moderation in penalty although it could be relevant to prospects of rehabilitation.

The offence of attempting to strike the police officer Lees with a projectile to prevent arrest is specified in the schedule to the Penalties and Sentences Act as being a serious, violent offence.  Since the Judge imposed 10 years imprisonment for that offence, it automatically followed from Section 161A of that Act that the applicant was to be regarded as having been convicted of a serious, violent offence. The Judge made the declaration required of him by Section 161B(1) of the Act.

Mr Kimmins, in his written material presented to us in advance of the hearing, appeared to suggest that the Judge may, nevertheless, have exercised a discretion.  Because of the nature of the offence and by ascribing 10 years imprisonment, the Judge was, however, obliged by the legislation to make the declaration.

Other points made by Mr Kimmins in support of the applicant's contention that the sentence imposed upon him was manifestly excessive were that the Judge made insufficient allowance for the pleas of guilty and other co-operation; that he failed to allow sufficiently for there having been no serious, actual injury; and that the applicant showed some prospect of rehabilitation especially withdrawal from the drug culture.  Needless to say, it is perfectly apparent that the Judge, who went about his task with demonstrable care, was well aware of all of those considerations. 

The Judge must be taken to have arrived at the 10 year term by reducing a substantially longer term appropriate but for the pleas of guilty.  He has not specified what that longer term was and he was not obliged to do so.  It must be noted too that the particular extent to which pleas of guilty warrant discounting rationally varies from case to case.  Circumstances possibly favouring substantial reduction are indications of true remorse and saving of public resources; working the other way, may be the existence of a powerful Crown case with conviction virtually inevitable.  Another aspect of course is the timeliness of the plea.

I mention these matters in response to a suggestion that the Court should fix on some "usual" discount for guilty pleas.  It would be generally unhelpful for the Court to do so because of that inherent variability in circumstances. 

It is up to the sentencing Judge in the particular case whether he or she specifies the extent of reduction. Sometimes that reduction will be susceptible of clear expression, sometimes not.  But that is a different question from the issue of our formulating a generally applicable, usual range of reduction for pleas of guilty.

The Crown Prosecutor had submitted in the sentencing Court that the Judge could work from an 18 year term and he nominated a range of 15 years to life.  I should say that I would infer that the Judge worked probably from a lower term than 18 years, though in my view he was not constrained to work from a point many years below 18.  He was helpfully referred by the prosecutor to The Queen v. Darren John Andrews, Court of Appeal 209 of 1997 where McPherson JA observed as to this sort of situation that:

"A primary Judge could well have contemplated imposing life imprisonment."

I entirely agree.  The ultimately grave aspect of this case, obviously enough, was the disgracefully reckless indifference with which the applicant exposed the police officer Lees to the serious risk of his losing his life in circumstances where that police officer was responsibly performing his duty in difficult and otherwise dangerous circumstances and, indeed, causing such risk to other people as well.  The case called for a strongly deterrent penalty.

Even allowing for the pleas of guilty, I could not even begin to conclude that a sentence of 10 years imprisonment for the most serious of these offences was manifestly excessive and I go so far as to say that I would regard it as falling towards the lower end of the relevant range.  I would refuse the application.

MACKENZIE J:  Yes, I agree. It was a serious, protracted course of conduct which led to the charges being laid and in my view, like the Chief Justice, I think that the learned sentencing Judge sentenced at the lower end of the range rather than what might otherwise have been available.

CHESTERMAN J:  I also agree.

THE CHIEF JUSTICE:  The application is refused.