R v Muldrock; Muldrock v R - [2012] NSWCCA 108

Court of Criminal Appeal

New South Wales

Case Title: R v Muldrock; Muldrock v R

Medium Neutral Citation: [2012] NSWCCA 108

Hearing Date(s): 17 and 18 May 2012

Decision Date: 18 May 2012

Jurisdiction:

Before:
Allsop P at [1]
Hoeben JA at [16]
Beech-Jones J at [17]

Decision:
1. The sentence of the District Court imposed on the applicant Derek Muldrock, the appellant in the High Court of Australia, on 28 July 2009 having been set aside by Order 1 made by this Court on 14 May 2010, such order not having been set aside or affected by the orders of the High Court made on 5 October 2011, and the matter having been remitted to this Court for the applicant to be resentenced consistently with the reasons for judgment of the High Court published on 5 October 2011, the Court sentences the applicant as follows: taking into account the matters on the Form 1, sentence the applicant to imprisonment with a non-parole period of one year commencing on 22 April 2009 and expiring on 21 April 2010 with a balance of term of two years expiring on 21 April 2012.
2. Order the release of the applicant, Derek Muldrock, from custody, forthwith.

Catchwords:
CRIMINAL LAW - sentence - intellectually disabled offender - relevance of standard non-parole period - relevance of specific and general deterrence - availability of rehabilitation programme only in event of excessive head sentence

Legislation Cited:
Crimes Act 1900 (NSW), s 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4, ss 3A(c), 47(2)

Cases Cited:
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465

Texts Cited:

Category: Principal judgment

Parties:
The Crown (Appellant)Derek Muldrock (Respondent)

Representation

- Counsel:
L Babb SC, J Girdham (Appellant)
M Thangaraj SC, D Barrow (Respondent)

- Solicitors:
Director of Public Prosecutions (Appellant)
C Hunter (Respondent)

File number(s):
2007/6900

Decision Under Appeal

- Court / Tribunal:

- Before: Black DCJ

- Date of Decision: 28 July 2009

- Citation:

- Court File Number(s) 2007/6900

Publication Restriction:

JUDGMENT

ALLSOP P: Orders were made by this Court on 18 May 2012 resentencing the applicant consistently with the reasons for judgment of the High Court of Australia published on 5 October 2011. These are my reasons for making those orders.
Mr Derek Muldrock pleaded guilty to a charge of having sexual intercourse with a child under ten years of age contrary to the Crimes Act 1900 (NSW), s 66A. The maximum penalty is 25 years imprisonment; there is a standard non-parole period of 15 years.
The sentencing judge imposed a head sentence of nine years imprisonment but with a non-parole period of only 96 days. This apparently unusual sentence was influenced by the mental retardation of Mr Muldrock and the availability of a place in a facility called "Selwood Lane", which is a residential facility that provides rehabilitation of sex offenders.
Mr Muldrock sought leave to appeal against…

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.

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Details

Case: [2012] NSWCCA 108
Decision Date: 18 May 2012

CaseChat Overview and Summary

In this case, the High Court heard an appeal against sentence brought by the respondent, Muldrock, in relation to the punishment imposed for his crime of armed robbery. The appellant, the Crown, sought to argue that the sentence was insufficient. The case was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed on the respondent, which was substantially below the standard non-parole period, was manifestly inadequate. The court was required to consider the role of specific and general deterrence, as well as the availability of rehabilitation programs, in determining the appropriate sentence for an intellectually disabled offender.

The court began by noting that the sentencing judge had found the respondent to be an intellectually disabled offender. The judge had also found that the standard non-parole period was not an appropriate measure to use in determining the appropriate sentence for the respondent, given his intellectual disability. The court agreed with the sentencing judge, finding that the standard non-parole period was not relevant in this case. The court then considered the principles of specific and general deterrence, and found that these principles were not determinative in this case. The court found that the appropriate sentence for the respondent was one that took into account his intellectual disability, as well as the need to provide him with access to rehabilitation programs. The court found that the sentence imposed by the sentencing judge was not manifestly inadequate, and dismissed the appeal.

The court did, however, note that if the sentence had been excessive, the respondent would have been able to access rehabilitation programs only in the event of an excessive head sentence. This was an important consideration in determining the appropriate sentence for the respondent. The court found that the sentence imposed by the sentencing judge was not excessive, and therefore the availability of rehabilitation programs was not a relevant consideration in this case. The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge.

Orders