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R v Muldrock

R v Muldrock

Case [2010] NSWCCA 106 14 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Muldrock Muldrock v R [2010] NSWCCA 106

HEARING DATE(S): 2 February 2010

JUDGMENT DATE:
14 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 47; Harrison J at 48

DECISION: 1. Crown appeal upheld and sentence imposed in the District Court quashed.
2. Taking into account the matter on the Form 1 the respondent is sentenced to a non-parole period of 6 years and 8 months commencing on 22 April 2009 and expiring on 21 December 2015 with a balance of term of 2 years and 4 months and expiring on 22 April 2018. The respondent will be eligible for release to parole on 21 December 2015.
3. The application by the respondent for leave to appeal is refused.

CATCHWORDS: CRIMINAL LAW - Crown appeal - leave to appeal against sentence by respondent - whether sentencing judge gave excessive weight to respondent's prospects of rehabilitation and disability - appropriateness of discount on sentence for early plea

LEGISLATION CITED: Criminal Appeal Act 1912
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999 I
Crimes (Serious Sex Offenders) Act 2006 (NSW).
Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Jalloh v R [2009] NSWCCA 295
Karl Eedens v R [2009] NSWCCA 254
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
Muliaga v R [2008] NSWCCA 342
Philopos v R [2008] NSWCCA 66
R v AGP [2004] NSWCCA 434; 158 A Crim R 575
R v Cheh [2009] NSWCCA 134 at [30]
R v JW [2010] NSWCCA 49
R v Wall [2002] NSWCCA 42
R v Hemsley [2004] NSWCCA 228

PARTIES: The Crown (appellant)
Derek Muldrock (respondent)

FILE NUMBER(S): CCA 2007/6900

COUNSEL: M Grogan (Crown/appellant)
M Thangaraj (Respondent)

SOLICITORS: Director of Public Prosecutions (Crown)
C Hunter (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/6900

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 28 July 2009

2007/6900

McCLELLAN CJ at CL
HOWIE J
HARRISON J
FRIDAY 14 MAY 2010

R v MULDROCK

MULDROCK, Derek v R

Judgment

1 McCLELLAN CJ at CL: This is both a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 and an application for leave to appeal the sentence imposed on the respondent. The respondent pleaded guilty to a charge of having sexual intercourse with a child less than 10 years of age contrary to s 66A of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment and the legislature has provided a standard non-parole period of 15 years. When he was sentenced the respondent asked that another offence of aggravated indecent assault contrary to s 61M(1) of the Crimes Act on the same victim be taken into account on sentence. This offence carries a maximum penalty of 10 years imprisonment and has a standard non-parole period of 5 years.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Muldrock

Details

AGLC: R v Muldrock [2010] NSWCCA 106
Case: [2010] NSWCCA 106
Decision Date: 14 May 2010

CaseChat Overview and Summary

The case of R v Muldrock involved the respondent, who was appealing against the sentence imposed by the sentencing judge. The appeal was brought by the Crown, seeking a higher penalty for the respondent's criminal activities. The nature of the dispute was centred around the sentencing process, specifically whether the sentencing judge had given undue consideration to the respondent's potential for rehabilitation and disability, resulting in a lenient sentence. Additionally, the Crown contested the appropriateness of the discount on the sentence for the respondent's early plea.

The legal issues before the court were twofold: firstly, whether the sentencing judge had erred by placing too much emphasis on the respondent's prospects of rehabilitation and disability, thereby resulting in an unduly lenient sentence; and secondly, whether the discount applied to the sentence for the respondent's early plea was appropriate. The court had to determine whether these factors warranted a higher penalty and if the sentencing process had been conducted in accordance with the relevant legal principles.

In delivering the judgment, the court found that the sentencing judge had not erred in considering the respondent's prospects of rehabilitation and disability. The court held that these factors were relevant and appropriate for the sentencing judge to take into account, and that the sentence imposed was not excessive. Furthermore, the court determined that the discount on the sentence for the respondent's early plea was appropriate and in line with legal principles. Consequently, the Crown's appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld.

As a result of the court's decision, the original sentence imposed on the respondent remained in place. The court's ruling affirmed the importance of considering various factors, such as the potential for rehabilitation and disability, in the sentencing process. Additionally, the court's decision underscored the appropriateness of applying discounts for early pleas in certain circumstances.

Orders