Zahorsky v The Queen

The appeal in Zahorsky v The Queen involved the applicant, who was convicted in February 2010 of causing a person to take an intoxicating substance with intent to have sexual intercourse without consent, indecent assault, and having sexual intercourse without consent. The applicant sought an extension of time to appeal against his sentence, asserting a Muldrock error in the original sentencing. The sole ground of appeal was the assertion of a Muldrock error, and no appeal was made in relation to the sentences for the other offences. The applicant argued that due to the Muldrock error, a lesser sentence was warranted in law.

The legal issue before the court was whether a lesser sentence was warranted in law given the identified Muldrock error. The court considered the nature of the appeal, which challenged only one of several sentences imposed simultaneously. The court noted that the offence of having sexual intercourse without consent was the only one subject to a standard non-parole period. The court held that no lesser sentence was warranted in law, finding insufficient prospects of success on the appeal. Consequently, the application for an extension of time to appeal was refused.

The court's reasoning focused on the limited scope of the appeal and the absence of a lesser sentence warranted in law. Given that the appeal pertained to only one of the multiple sentences, the court determined that the prospects of success were insufficient. The Muldrock error was acknowledged, but it did not lead to a lesser sentence being justified. The application for an extension of time to appeal was denied as a result of these findings.