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Judgment handed down in Mulligan (a pseudonym) v The Queen

02 May 2017

The Court of Appeal today published its reasons in relation to an appeal against conviction and sentence by Aaron Mulligan (a pseudonym).

Mr Mulligan was found guilty after a trial by jury in the County Court of three counts of rape, two of intentionally causing injury, and one each of making a threat to kill and false imprisonment.  He was sentenced to a total effective sentence of 13 years and four months’ imprisonment with a non-parole period of 10 years.  The charges related to two separate complainants.  It was alleged that Mr Mulligan assaulted the first complainant on 6 November 2012 and orally and vaginally raped her on 2 December 2012.  It was also alleged that, on 21 September 2013, he orally raped the second complainant and assaulted her with a hammer.

Counsel had made the forensic decision, based on instructions, that each complainants’ allegations should be heard together in one trial.  It was said on appeal that this had led to a miscarriage of justice.  The Court found that this was a forensic decision reasonably open to counsel.  It found that, despite the risk of prejudice, there was a rational basis for the decision not to seek severance.  It was further said that the trial judge had made errors in running and in his charge which had led to a miscarriage of justice.  The Court rejected these arguments and held that the verdict reached by the jury was reasonable and supportable.  It therefore refused to grant leave to appeal against conviction.

However, the Court granted leave to appeal against sentence, and allowed the appeal.  It found that, while the individual sentences were within the range reasonably open to the sentencing judge, the orders for cumulation between charges 3 and 4 (the oral and vaginal rapes of the first complainant) and the degree of cumulation on charge 7 (the oral rape of the second complainant) were manifestly excessive.  It therefore reimposed the same individual sentences, but varied the orders for cumulation, ultimately imposing a total effective sentence of 11 years and four months’ imprisonment with a non-parole period of eight years.

Read the Court's full reasons on Austlii (External link)

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