Application by HJWG pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001

The application was brought by HJWG under section 78 of the Crimes (Appeal and Review) Act 2001, seeking review of a decision made by the Court of Criminal Appeal. HJWG was convicted of a criminal offence and sentenced by the Supreme Court. The Court of Criminal Appeal reviewed the sentence and imposed a new sentence. HJWG's application was heard by the NSW Court of Criminal Appeal, which was required to determine whether there was a doubt or question as to a mitigating circumstance and whether the sentence imposed by the Court of Criminal Appeal was infected by the Muldrock error.

The court considered the legal issues of whether there was a mitigating circumstance that could have impacted the sentence imposed by the Court of Criminal Appeal and whether the sentence was infected by the Muldrock error. The Muldrock error refers to a procedural error in the Court of Criminal Appeal's decision-making process that occurred in a previous case, Muldrock v R (2011). The court found that there was no doubt or question as to a mitigating circumstance that could have impacted the sentence imposed by the Court of Criminal Appeal. However, the court found that the sentence imposed by the Court of Criminal Appeal was infected by the Muldrock error.

The court's reasoning was that the mitigating circumstance relied upon by HJWG was not raised at the original sentencing hearing, and therefore, could not be considered by the Court of Criminal Appeal. The court also found that the Muldrock error had occurred in this case, as the Court of Criminal Appeal had not considered the full range of sentencing options available to it. The court concluded that the sentence imposed by the Court of Criminal Appeal was infected by the Muldrock error, and therefore, the application was successful.

The court ordered that the sentence imposed by the Court of Criminal Appeal be quashed and that the matter be remitted to the Court of Criminal Appeal for re-sentencing. The court noted that the re-sentencing hearing should be conducted in accordance with the principles set out in Muldrock v R (2011), and that the Court of Criminal Appeal should consider the full range of sentencing options available to it.