Kertai v R

The case of Kertai v R involved an appeal against the sentence imposed by the sentencing judge. The applicant, who was convicted of sexual intercourse with a child under 10, sought an extension of time to appeal against the sentence, arguing that the sentencing judge had made a "Muldrock error" by adopting a two-stage approach and giving determinative weight to the standard non-parole period. The Crown opposed any extension of time being granted. The primary issue for the court to decide was whether the sentencing judge had indeed made a "Muldrock error" in imposing the sentence. If such an error had occurred, the court had to determine whether a lesser sentence should be imposed.

The court examined the sentencing judge's approach to determining the objective seriousness of the offence and found that the judge had fully reviewed the facts of the offending. The court considered the salient features of the offence, including the age and vulnerability of the complainant, and concluded that the sentence imposed was not "unreasonable or plainly unjust". The court also noted that if an extension of time were granted and leave to appeal against sentence was granted, the grounds of appeal would likely be unsuccessful. Therefore, the court found that it would be futile to grant an extension of time in such circumstances. The application for an extension of time was dismissed.

The court found that the sentencing judge had not made a "Muldrock error" in imposing the sentence, and therefore there was no basis for a submission that a lesser sentence should have been imposed. The court also considered the principles of delay and finality, and concluded that the delay in seeking an extension of time was not justified. The court noted that if "Muldrock error" was not made out, there was no explanation for the delay and no basis for a submission that a lesser sentence would have been imposed. The court further found that the absence of "Muldrock error" gave greater force to the principles of delay and finality when considering the grounds of appeal. The application for an extension of time was dismissed, and no orders were made.