R v Muldrock

[2010] NSWCCA 106

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.

2 The respondent pleaded guilty on 15 October 2008 and the sentencing judge concluded that this was an “early plea” for which his Honour allowed a reduction of 25% in the head sentence.

3 The sentencing judge imposed a sentence of 9 years imprisonment but provided a non-parole period of only 96 days backdated to commence on 22 April 2009 and expire on 28 July 2009, the day on which he was sentenced. The sentencing judge directed as a condition of parole, that it was only to be granted on the basis that he was taken into a facility in Orange known as “Selwood Lane” which provides a supported living residential facility. It has a capacity to compel residents to reside at premises and provides programs for the rehabilitation of sex offenders. As I understand the position the service it provides differs from the CUBIT program in that it provides holistic support in a therapeutic environment to a maximum of five residents and has been specifically developed for people with an intellectual disability. The service is focused on providing sex offenders with specific intervention on a day-to-day basis through staff support.

4 The Crown submitted that the sentence imposed by the sentencing judge was manifestly inadequate. It was submitted that the sentencing judge had made the following errors:

1. He gave excessive weight to rehabilitation and the respondent’s disability and inadequate weight to the remaining purpose of sentence identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 in determining the appropriate non-parole period.

2. He failed to properly consider the relevance of the standard non-parole period of 15 years in determining the appropriate non-parole period.

3. He structured the sentence to reflect his erroneous view that he had “power to make conditions about parole.”

4. He failed to identify any basis for a finding of special circumstances and in particular special circumstances of a character that warranted a non-parole period which represented less than 3% of the total term.

5 The respondent also filed an application for leave to appeal his head sentence. It was submitted that a term of 9 years was in all the circumstances excessive.

The facts

6 The relevant facts were agreed before the sentencing judge and the Crown has provided an appropriate summary which I gratefully adopt.

“The child was born on 20 April 1997. He was therefore still 9 years of age when the offence occurred on 19 March 2007.
On 18 March the child and his mother moved into a flat attached to a house which was occupied by the owner and the respondent.
The respondent and the child met at a Seventh Day Adventist church about 2 weeks before he and his mother moved into the flat.
On 19 March 2007 the respondent suggested to the child’s mother that he and the child go for a bicycle ride for the purpose of testing out a repair to the child’s bicycle. The mother agreed and they rode off at about 6 pm. This was the first occasion on which the child and the respondent had been alone.
During the ride the respondent asked the child whether he would like to go to the lake to see the animals. The child agreed and they cycled 1-2 kilometres to the lake. Once there they decided to go for a swim.
The child removed his clothing and placed it on the ground. He was not wearing any underwear and entered the lake naked. The respondent entered the water wearing underpants or a pair of Speedos.
After being in the water for 5 to 10 minutes the respondent attempted on about four occasions to touch the child’s penis. The child pushed the respondent’s hand away. The respondent eventually touched the child’s backside and an area around his penis. The latter conduct was the basis of the Form 1 matter of aggravated indecent assault.
They got out of the water and the respondent pushed the child to the ground and onto the child’s clothing. He pinned the child down by kneeling on his legs.
The respondent sucked the child’s penis twice for about 10 seconds. This was the conduct upon which the offence against section 66A was based. The child told the respondent to get off and kicked him in the shoulder and chest.
The child got dressed and rode to a house about 50 metres from the lake. He knocked on the door. It was answered by the occupant. The child was in a very distressed state and he complained that a man had “touched his private parts.” The occupant drove the child home. When they arrived he ran to his mother and told her that the respondent had sucked his penis. A short time later the child’s mother answered a knock to the door. On seeing that it was the respondent she immediately closed it. The police were contacted. They arrived and the child was taken to hospital where he was examined and swabs were taken from his penis and clothing.
The child was interviewed by police on 20 March 2007. On 21 March the police contacted the respondent on his mobile phone. Arrangements were made to meet at the offices of the Salvation Army Employment Service. Police attended and placed the respondent under arrest.
The respondent participated in an ERISP. He told the police that he was a slow learner, that he had to attend special education units at school, was dyslexic and suffered from “hyper mania” for which he took prescribed medication.
He said that he thought the child looked about 10 or 11 years of age. He said he was surprised that the child’s mother had allowed the child to go with him and that he felt he had been set up because he looked like an “easy target.” He denied touching the child.
On 5 June 2007 the respondent provided a buccal swab which was compared with DNA recovered from the pants the child was wearing on the day of the offence. The respondent has the same profile as the DNA extracted from the clothing.”

Subjective circumstances

7 The respondent was born on 11 November 1976. He committed the offence when he was 30 years of age. His Honour found that the respondent is “significantly intellectually disabled” and accordingly concluded that the respondent was not a suitable vehicle for general deterrence.

8 The respondent was convicted of a similar offence which he committed in Queensland and for which he was sentenced in the year 2000. His sentence on that occasion involved a treatment regime which his Honour concluded had not been successful in “curing” the respondent. A report dated 8 May 2000 by Dr Muir from the Cairns Health Service district was tendered. It indicated that in the opinion of Dr Muir the respondent was “undoubtedly mentally retarded” although there were no results from objective tests which indicated the extent of his handicap. However, the report indicated that the respondent could barely read or write and had difficulty keeping a job.

9 The facts of the Queensland offence were similar to the facts of the offence the subject of this appeal. The respondent was able to be alone with the child by inviting him for a bike ride. In each case the sexual intercourse was an act of fellatio committed by the respondent on the child.

10 The respondent told Dr Muir that he had been sexually molested and abused by his father. He said that he had experienced sexual fantasies about young boys for a time but the 2000 offence was the first time that he had acted on his impulses. Dr Muir did not believe that at that time the respondent required hospitalisation but concluded that the medication and counselling regime which was available would be adequate. Although medication was apparently given to the respondent Dr Muir was of the opinion that the traumatic effects of the arrest and court process were sufficient to help the respondent “contain his behaviour.”

11 A report prepared by a psychologist, Miss Sharon Daniels, for the Queensland court was also tendered. Miss Daniels concluded that the respondent was “in the border-line range, only one point from mental retardation” and had “little control over his acting out behaviour” and “little comprehension of what constitute criminal behaviour.” Miss Daniels was of the view that at the time she saw the respondent the drug treatment he was being administered had resulted in “quite a deal of success.”

12 The respondent has been more recently assessed by a psychologist, Professor Susan Hayes. Her report is dated 25 September 2008. She said that the respondent had been prescribed and was taking “Androcur” which the respondent reported had stopped him “having urges towards children.” Professor Hayes concluded that the respondent was suffering from a “mild intellectual disability” and that he needed to participate in a sex offender program particularly designed for people with an intellectual disability.

13 A report was also tendered from Mr Christian Cabrera, a senior clinical consultant with the Community Justice Program. He was the source of information about the Intensive Residential Service, “Selwood Lane”, in Orange. Mr Cabrera indicated that the respondent had been assessed as suitable and had been “earmarked” to be placed at the facility. However, when writing on 18 May 2009 Mr Cabrera indicated that the respondent’s placement could not commence until 20 June 2009. Interim arrangements were indicated as being able to be made for the respondent’s short-term placement in suitable accommodation.

14 Mr Cabrera indicated that Selwood Lane is an intensive residential service providing 24 hour supervision with two staff present at any time and one staff member on an active/awake night shift. It is located in a semi-rural environment away from the main centre of Orange with limited access to neighbours. It is a six bedroom facility which includes a staff office and safe room with all windows and outside doors able to be locked if and when needed. The staff are required to maintain line of sight supervision at all times. The facility is able to provide ongoing behaviour management support which responds to identified risks and behaviours of concern.

The respondent’s application for leave to appeal

15 In his application for leave to appeal the respondent challenged the total term of his sentence. The respondent submitted that the sentencing judge had been overly concerned with the protection of the community and had failed to consider the fact that the respondent would be subject to the Crimes (Serious Sex Offenders) Act 2006 under which he may be placed under a continuing detention order or extended supervision order even after his sentence has expired.

16 The respondent’s submission must be rejected. With respect to the latter submission s 24A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes clear that in sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender has or may become a registrable person under the Child Protection (Offenders Registration ) Act 2000 as a consequence of the offence or has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) or the Crimes (Serious Sex Offenders) Act 2006 (NSW). The obligation on a court when sentencing an offender is to impose a sentence appropriate to all of the circumstances of the offence and the personal circumstances of the offender. The sentencing court cannot anticipate the circumstances of an offender when he or she may be due for release.

17 The submission that the sentencing judge placed excessive emphasis on the protection of the community must also be rejected. Given the nature of the respondent’s offence committed on a 9 year old boy and the fact that he had previously committed a similar offence there was a considerable need for the sentencing judge to be mindful of the requirement to protect the community.

18 In my judgment the application by the respondent for leave to appeal should be refused.

The Crown appeal

19 The Crown did not submit that the total term of the sentence was inadequate. Its submissions were confined to alleged errors in the non-parole period which his Honour imposed. Although the Crown did not seek an increase in the total term it nevertheless submitted that his Honour had erred by allowing a discount of 25% for the respondent’s plea of guilty. It was submitted that the plea was not early, having been entered on 15 October 2008, although the respondent was committed for trial in the Local Court on 4 December 2007. After his committal there were a number of adjournments for the purpose of the defence investigating what were referred to as “psychiatric issues.” The Crown does not submit that these investigations were inappropriate but nevertheless submitted as a consequence some of the utility of the plea was lost. It was not entered at the earliest opportunity.

20 The sentencing judge structured the sentence as he did in the belief that he had power to make conditions relating to the respondent’s parole. His Honour said:

“What I do note is that I do have power to make conditions about parole and it is on that basis and on that basis alone that I am making the sentence in this form.”

21 Section 51 of the Crimes (Sentencing Procedure) Act 1999 gives a court the power to impose conditions “on any parole order made by it.” However, the Act contemplates the making of a parole order by a court only in the circumstances provided in s 50 where a sentence of imprisonment is imposed for a term of 3 years or less. The Act does not otherwise provide a power in a judge to make a parole order which is a matter for the Parole Authority. The sentencing judge was in error when he said that in the circumstances where he was intending to impose a sentence with a total term of 9 years imprisonment he had the power to make conditions about parole.

22 There would be no doubt that the Parole Authority would, in the ordinary course, pay significant regard to any comment which a sentencing judge made with respect to the possible release of an offender to parole. However, in the present case it is apparent that his Honour imposed the non-parole period which he did in the belief that the orders which he made would operate and the respondent would be immediately released to parole. Because that power was not available to his Honour the sentencing process has clearly miscarried. His Honour could only have contemplated imposing the non-parole period of 96 days in the belief that the respondent would inevitably be released into effective “custody” at “Selwood Lane”.

23 The Crown does not submit that the respondent is not suffering from a mental disability and accepts this was a relevant factor when he was sentenced. In particular the Crown accepts that in the circumstances general deterrence was of less significance than would be the case in relation to a person who was not suffering a similar disability.

24 The relevant principles were reviewed by this Court in many recent cases: see for example, Jalloh v R [2009] NSWCCA 295 at [33] (per Johnson J, McClellan CJ at CL and Hidden J agreeing); Muliaga v R [2008] NSWCCA 342 at [4] (per McClellan CJ at CL, Simpson and McCallum JJ agreeing); Philopos v R [2008] NSWCCA 66 at [78] (per McClellan CJ at CL, James and Barr JJ agreeing); R v Hemsley [2004] NSWCCA 228 at [33] – [36] (per Sperling J, Grove and Dowd JJ agreeing).

25 In R v Cheh [2009] NSWCCA 134 at [30], McClellan CJ at CL (James and Adams JJ agreeing) said:

“of significance in this case is that this court has consistently adopted the view that when an offender’s actions are affected by mental disability the objective of general deterrence is of less significance: R v Engert (1996) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (unreported, Court of Criminal Appeal, 18 March 1992 per Badgery-Parker J)”.

26 However, it is necessary in each case to consider all of the circumstances, including whether a low level of intellectual functioning of an offender is of any particular significance when considering the appropriate sentence.

27 In the present case the sentencing judge concluded that the respondent “was significantly intellectually disabled” and that accordingly general deterrence “was inappropriate”, although his Honour accepted that personal deterrence was still relevant. In my judgment this finding was not justified by the contemporary evidence. Although Professor Hayes in her report dated 25 September 2008 expressed the opinion that the respondent suffered from “a mild intellectual disability” he has sufficient capacity to have obtained a driver’s licence and has undertaken some paid employment. Professor Hayes concluded that the respondent does have “deficits in empathy” which are likely to be a result of his intellectual functioning.

28 The evidence clearly establishes that the respondent knew that what he had done was wrong. This is apparent from the fact that when confronted by the police he originally denied any suggestion of wrong-doing and claimed that he had in effect “been set up.” Dr Muir concluded that the respondent understood the nature and wrongfulness of his conduct with respect to the earlier offence and that the circumstances confirmed that he was aware that his actions were a breach of the law.

The standard non-parole periods

29 The sentencing judge’s remarks do not indicate any appreciation of the obligation to consider the objective seriousness of the offence and determine what part the standard non-parole period should play in determining the appropriate sentence. It would seem that his Honour acknowledged the standard non-parole period but referred to it only in the context of the head sentence and not when considering the non-parole period that should be imposed.

30 This Court has seen errors of this nature on other occasions. It is important for sentencing judges to remember that the standard non-parole period is not provided to assist in identifying the appropriate total term but defines the non-parole period for an offence falling within the mid range of objective seriousness: Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ss 54 A-54D.

31 In the ultimate it is impossible to reconcile the non-parole period which the sentencing judge imposed with the non-parole periods provided for this offence. Furthermore, when defining the non-parole period his Honour made no reference to any finding of special circumstances which would have been the only basis upon which the particular non-parole period could have been imposed. It is apparent that his Honour, having been informed of the opportunity for the respondent to be placed in the “Selwood Lane” facility and mindful of his mental disability was diverted from and did not carry out the task required of a sentencing judge.

32 Before the Parliament enacted s 68A of the Crimes (Appeal and Review) Act 2001 the principles relevant to the determination of a Crown appeal on sentence were those discussed by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] (Meagher JA and Bell J agreeing). Section 68A has modified those principles removing any consideration of double jeopardy when considering whether an offender whose sentence is the subject of a Crown appeal should be resentenced and the length of that sentence. Section 68A was authoritatively considered by this Court in R v JW [2010] NSWCCA 49. It is clear notwithstanding s 68A that this Court retains a discretion as to whether or not to intervene [JW at [95]).

33 Counsel for the respondent submitted that this Court should not intervene. His counsel accepted that although his Honour contemplated that the respondent would immediately be released to parole this could only occur if he was released by the Parole Authority. It was submitted that all that his Honour had done was structure the sentence to enable the Parole Authority to immediately send the respondent to Orange. It was submitted that by structuring the sentence so that an opportunity was available for the respondent to be immediately treated his Honour had given appropriate consideration to the rehabilitation of the respondent. It was submitted that his Honour had not contemplated “a standard release to parole” and that in reality he would remain in custody when residing at “Selwood Lane”. It was submitted that at a time close to his ultimate release date the Crown may consider an application for a continuing supervision or detention order pursuant to s 14 of Crimes (Serious Sex Offenders) Act 2006 which would enable a decision to be made as to whether his further incarceration was necessary in order to protect the public.

The appropriate sentence

34 In my opinion this Court must intervene and resentence the respondent to provide an appropriate non-parole period. It is plain that because of the structure of the sentence which his Honour imposed he focused entirely on rehabilitation and failed to recognise the need for denunciation and punishment of the respondent, specific deterrence and, it being not entirely irrelevant, general deterrence. The offence which the respondent committed was premeditated, his victim being induced to take a bike ride with him to a secluded location where the offence was committed. Although the level of criminality was significant in my view it was less than mid range of objective seriousness for this offence. He should be sentenced accordingly.

35 The Crown provided written submissions in which reference was made to the Judicial Commission’s statistics for this type of offence. The sample is relatively small, 27 cases, and notwithstanding the standard non-parole period the majority received non-parole periods of less than 5 years. This suggests, although without detail of individual cases it is impossible to make any authoritative determination, that the non-parole periods which have been imposed have not paid sufficient regard to the standard non-parole period. It is apparent that having regard to the sentencing regime for many offences a non-parole period of 15 years is considerable. Some persons sentenced for murder receive less. However, the responsibility of the courts is to be faithful to the sentences defined by Parliament which includes proper recognition of the standard non-parole period provided for particular offences.

36 This Court considered the circumstances of an offender convicted of a breach of s 66A in Karl Eedens v R [2009] NSWCCA 254. In that case the offender had a record of previous convictions for similar offences. He did not have intellectual deficiencies as have been identified with the respondent. Furthermore in Eedens there were three victims who ranged in aged from 8 to 13 years.

37 Eedens appealed his sentence which included a total term of 12 years and a non-parole period of 9 years. The sentence was reduced on appeal to a total term of 8 years and 3 months with a non-parole period of 6 years and 2 months. The sentence was reduced by 25% on account of the offender’s guilty plea.

38 In R v AGP [2004] NSWCCA 434; 158 A Crim R 575 the offender was charged with an offence under s 66A. There was a Form 1 which included an offence of aggravated indecent assault. The offender was sentenced at first instance to a total term of 3 years imprisonment with an 18 months non-parole period. The complainant was the offender’s 8 year old niece. The offender was 22 years of age and had no prior criminal history. The intercourse was fellatio.

39 A Crown appeal was upheld and recognising the limitations on a Crown appeal, including double jeopardy, the offender was resentenced to a period of imprisonment of 5 years with a non-parole period of 2 years and 6 months.

40 In MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 the offender pleaded not guilty to a breach of s 66A which involved penile/vaginal intercourse with his 9 year old daughter. She suffered a torn hymen as a result of the offence. The offender was sentenced to a total term of 16 years with a non-parole period of 12 years which was reduced on appeal to 11 years.

41 These cases and others discussed in the reasons, particularly in Eedens overwhelmingly confirm that the non-parole period which his Honour imposed was entirely inappropriate. However, in resentencing this Court is constrained by the head sentence which his Honour imposed and which has not been challenged by the Crown in his appeal. As the sentence I propose suggests the consequence is that the non-parole period which is appropriate is confined by the overall term.

42 I have previously discussed the evidence in relation to the respondent’s intellectual handicap. Although it should not be given the significance apparently given to it by the sentencing judge in my view general deterrence was, because of his handicap, a less significant matter.

43 The sentencing judge allowed a discount of 25% for the respondent’s guilty plea. Although in my view that plea was not entered at the earliest opportunity and its utilitarian value has accordingly diminished in all the circumstances I would not intervene to vary the discount. The necessary variation would not be of significance in the overall sentence.

44 The rehabilitation of the respondent is a matter of significance. The period which I propose that he serve in full time custody will allow for his treatment if it is available within the prison system. When the question of his release to parole is being considered the Parole Authority will be able to review the possibility of his further treatment in some suitable facility within the community.

45 I am not persuaded that a finding of special circumstances would be appropriate. It is plain that the respondent requires effective treatment if he is ever to be a responsible member of the community. That treatment is available within the prison system. The usual period on parole which follows from the head sentence will be sufficient to allow his reintegration into the community if the Parole Authority determines that he should be released.

46 I propose the following orders:

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 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.

47 HOWIE J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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