Muldrock v The Queen

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DEREK MULDROCK  APPELLANT

AND

THE QUEEN  RESPONDENT

Muldrock v The Queen [2011] HCA 39
5 October 2011
S121/2011

ORDER

1.     Appeal allowed.

2.Set aside paragraphs 2 and 3 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 14 May 2010 and in their place order that:

(a)the applicant, Derek Muldrock, have leave to appeal against the sentence imposed upon him by Black DCJ in the District Court of New South Wales on 28 July 2009; and

(b)the appeal be treated as instituted and heard instanter and allowed.

3.Remit the matter to the Court of Criminal Appeal for the appellant to be re‑sentenced consistently with the reasons for judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation

M Thangaraj SC with D P Barrow for the appellant (instructed by Catherine Hunter Solicitor)

C K Maxwell QC with A J Robertson for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ.   The appellant is mentally retarded.  As a child he was subject to homosexual sexual abuse.  As an adult he has shown a sexual interest in male children.  In March 2007, he befriended a nine year old boy and took advantage of an opportunity when the two were alone to suck the boy's penis.  He was charged with the offence of sexual intercourse with a child aged under 10 years.  The maximum sentence for the offence is 25 years' imprisonment[1].  The standard non-parole period for the offence is 15 years[2].

    [1]Crimes Act 1900 (NSW), s 66A.

    [2]Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), Table to Div 1A of Pt 4.

  2. The appellant pleaded guilty to the offence before the District Court of New South Wales (Black DCJ).  He had been assessed as eligible for admission to a residential treatment facility run by the Community Justice Program of the Department of Ageing, Disability and Home Care.  The facility, known as Selwood Lane, operates a program that is designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour. 

  3. Black DCJ sentenced the appellant to a term of nine years' imprisonment after allowing a 25% reduction in the otherwise appropriate sentence to reflect the appellant's plea of guilty[3].  The appellant had been in custody for three months at the date of the sentence hearing.  Black DCJ backdated the sentence to give credit for the period served on remand.  He specified a non-parole period of 96 days, which expired on the date of its imposition.  He directed, as a condition of release on parole, that the appellant reside at Selwood Lane until the Parole Authority, acting in consultation with the Community Justice Program, determined that he be…

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Details
Case
[2011] HCA 39
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Derek Muldrock against a sentence imposed by the Court of Criminal Appeal of New South Wales. Muldrock had pleaded guilty to an offence of sexual intercourse with a child under 10 years and was sentenced to nine years' imprisonment with a non-parole period of 96 days. The standard non-parole period for such an offence is 15 years. Muldrock argued that the Court of Criminal Appeal erred in its sentencing by giving undue significance to the standard non-parole period, and that his mental retardation and the availability of rehabilitative treatment were not adequately considered.

The central legal issues before the High Court were whether the "two-stage approach" to sentencing, as applied in *R v Way*, was correctly applied in relation to offences carrying a standard non-parole period, and the relevance of an offender's mental retardation and the availability of rehabilitative treatment in sentencing. The Court was also required to consider the relevance of community protection in light of the *Crimes (Serious Sex Offenders) Act 2006* (NSW).

The High Court found that the Court of Criminal Appeal had erred by treating the standard non-parole period as having determinative significance in sentencing Muldrock. The Court held that while the standard non-parole period reflects the objective seriousness of an offence, it does not dictate the appropriate sentence for an individual offender, particularly one with significant intellectual disability. The Court emphasised that the sentencing judge must consider all relevant factors, including the offender's personal circumstances, such as mental retardation, and the potential for rehabilitation. The Court also clarified that the availability of orders under the *Crimes (Serious Sex Offenders) Act 2006* (NSW) does not permit a sentencing court to reduce a sentence that would otherwise be appropriate for community protection, as this would undermine the purposes of criminal punishment.

The High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal, and remitted the matter to that Court for re-sentencing. The Court indicated that fresh evidence concerning Muldrock's circumstances and treatment options could be led on that occasion.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside paragraphs 2 and 3 of the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 14 May 2010 and in their place order that:

(a) the applicant, Derek Muldrock, have leave to appeal against the sentence imposed upon him by Black DCJ in the District Court of New South Wales on 28 July 2009; and

(b) the appeal be treated as instituted and heard instanter and allowed.

3. Remit the matter to the Court of Criminal Appeal for the appellant to be re‑sentenced consistently with the reasons for judgment of this Court.

Background

Background to the litigation

An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence. The Court of Criminal Appeal erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant. That error necessarily affected the Court's determination of the appellant's application for leave to appeal against the severity of the sentence. The determination that the challenge to the sentence was without merit[57] was wrong. To explain why that is so, it is necessary to say something more about the offence and the appellant's disability. [57]R v Muldrock [2010] NSWCCA 106 at [15]-[18].The facts The appellant was aged 30 years at the date of the offence. The victim was living with his mother in a granny flat attached to the house in which the appellant was living. The appellant fixed the boy's bike and offered to go for a test ride with him. The boy's mother agreed. When the appellant and the boy were alone together, the appellant asked the boy if he wanted to go to the lake to see the animals. They cycled a distance of one or two kilometres to the lake. They decided to go swimming. The boy had no swimming costume or underwear and he went into the lake naked. The appellant joined him, wearing his underpants or Speedos. He repeatedly tried to touch the boy's penis and bottom, but each time the boy pushed him away. Eventually he succeeded in touching the boy's bottom and the area around his penis. This activity was charged as an offence of aggravated indecent assault[58]. Black DCJ took this offence into account in sentencing the appellant for the principal offence[59]. [58]Crimes Act 1900 (NSW), s 61M(1). The maximum penalty for the offence is imprisonment for seven years. The standard non-parole period for the offence is five years: Sentencing Act, Table to Div 1A of Pt 4.[59]Sentencing Act, s 33. The boy got out of the water and the appellant pushed him to the ground, pinning him down by kneeling on his legs. He sucked the boy's penis twice for about 10 seconds. The boy kicked him in the shoulder or chest and the appellant fell back. The boy got dressed and rode off. The appellant yelled out, "Come back, you wussy. You're just too scared to come back". The boy rode to a nearby house. He was in a very distressed state and he told the occupant, Mr Fuzzard, that a man had touched his private parts. Mr Fuzzard drove him home, by which stage the boy was "sobbing hysterically and shaking". A short time later, the mother answered a knock at the door and saw the appellant standing there, holding a bike pump. She closed the door on him and contacted the police. The appellant was interviewed by the police in the presence of a Salvation Army officer, who acted as a support person. He gave an account that he had planned to go swimming by himself and that the boy had invited himself on the excursion. The appellant said that he thought the boy's mother had "set him up" by allowing the boy to go with him and that the mother would have viewed him as an "easy target". He maintained that the boy had falsely accused him of touching him. He denied any wrongdoing.

Evidence

Evidence Before The Court

The appellant had not previously been sentenced to a term of full-time custody at the time he appeared for sentence before Black DCJ. The expert evidence The respondent tendered the reports of Dr Muir and Ms Daniels, a clinical psychologist, in the proceedings before Black DCJ. These reports had been prepared in connection with the proceedings before the Queensland District Court in 2000. Dr Muir concluded that the appellant was "undoubtedly mentally retarded". The likely cause of the condition was cerebral anoxia at birth. The appellant had been placed in special classes throughout his school career. He could barely read or write and was only able to tell the time by the use of a digital watch. The appellant was sexually abused at the age of 10 by a young adult male who performed oral sex on him. Dr Muir said that the appellant's retarded development was the cause of his difficulty in managing his impulses and controlling his actions. Ms Daniels assessed the appellant's Performance IQ as within the category of mentally retarded and his Full Scale IQ as within the borderline range. She considered that his "maladaptive sexual behaviour" appeared to be the manifestation of his own childhood sexual abuse and his mental retardation. In her view, the appellant had little control over his "acting out behaviour". The appellant was also assessed by Professor Hayes, a psychologist, in connection with the present offence. Professor Hayes reported that the appellant's IQ Composite Standard Score of 62 was indicative of a mild intellectual disability. The appellant functions at a level lower than 99% of the population. His receptive and expressive language is equivalent to that of a child aged five and a half years. Test results measuring the appellant's ability to communicate, daily living skills and level of socialisation (adaptive behaviour) confirmed the diagnosis of mild intellectual disability. The appellant functions in the lowest 0.1% of the population in terms of his adaptive behaviour. Professor Hayes observed that:"Mr Muldrock has deficits in empathy, that is, understanding how another individual is thinking and feeling. Although he has been sexually assaulted himself, he says that he cannot recall how he felt at the time, and he cannot understand how his victim would feel. He also holds a number of cognitive distortions regarding the offences, including the view that 'I'm not purposely like that'." Professor Hayes considered that the appellant would benefit from a program designed for a sex offender with an intellectual disability. She commented on the lack of availability of programs for intellectually disabled sex offenders in custody. She suggested that the appellant needed to learn practical skills for dealing with situations in which he is in the proximity of children. She commented on his lack of appropriate social and recreational outlets for a man of his age and ability, suggesting that he required a comprehensive program to address the areas of deficit in his adaptive behaviour.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
The Sex Offenders Act empowers the Supreme Court on the application of the State of New South Wales to order the continuing detention in custody or the extended supervision of a sex offender following the expiration of the offender's sentence[80]. Section 24A(1)(b) of the Sentencing Act provides that a court must not take into account as a mitigating factor the fact that the offender has or may become the subject of an order under the Sex Offenders Act[81]. The appellant submits that it remains open to the sentencing court to have regard to the availability of orders under the Sex Offenders Act, not as a mitigating factor, but because the statutory scheme provides the means for protecting the community from those sex offenders who pose a continuing risk of harm. From this it is said to follow that there is less justification for incorporating consideration of the protection of the community in the sentence imposed on a sex offender. The notion that a sentence might be reduced to take into account the existence of a regime outside the criminal law providing for the detention of sex offenders may be thought to have little to commend it as a matter of principle. The Court of Criminal Appeal was right to reject the submission. The expression "mitigating factor" in s 24A refers to a factor that is taken into account to reduce the sentence that would otherwise be appropriate. It is the function of the court sentencing an offender for a criminal offence to take into account the purposes of criminal punishment in determining the appropriate sentence. A purpose of punishment is the protection of the community from the offender[82]. A court may not refrain from imposing a sentence that, within the limits of proportionality, serves to protect the community in a case that calls for it because at some future time the offender may be made the subject of an order under the Sex Offenders Act. [80]Sex Offenders Act, ss 9 and 17. [81]In sentencing, the court must also not take into account as a mitigating factor the fact that the offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) as a consequence of the offence or that the offender has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW): Sentencing Act, s 24A(1).[82]Sentencing Act, s 3A(c). Conclusion In the written submissions filed on the appellant's behalf, senior counsel proposed that this Court should set aside the orders made by the Court of Criminal Appeal, allow his appeal to that Court and sentence him to a term of less than three years, specifying a non-parole period of one day, on the condition that the appellant reside at Selwood Lane for the duration of the sentence (or as the Parole Authority determines). On the hearing of the appeal, senior counsel informed the Court that a place for the appellant at Selwood Lane was no longer available. He acknowledged the force of the respondent's submission that the proceedings should be remitted to the Court of Criminal Appeal for re-sentencing. Fresh evidence concerning the appellant's circumstances and treatment options may be led on that occasion. This is the appropriate course.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

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