Muldrock v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 05 October 2011
• Neutral Citation: 2011-1005 HCA E,[2011] HCA 39
• Docket Number: S121/2011
• Date: 05 October 2011

[2011] HCA 39

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S121/2011

Derek Muldrock

Appellant

and

The Queen

Respondent

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))

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A(2), 54B.

Muldrock v The Queen

Criminal law — Sentencing — Mentally retarded appellant pleaded guilty to offence of sexual intercourse with a child under 10 years — Appellant sentenced to nine years' imprisonment and non-parole period of 96 days — Standard non-parole period for offence 15 years — Relevance of statutory provision of a standard non-parole period in sentencing of offenders — Whether ‘two-stage approach’ to sentencing of offenders for offences with standard non-parole periods required or permitted — Whether R v Way (2004) 60 NSWLR 168 correctly decided with respect to operation of standard non-parole periods.

Criminal law — Sentencing — Offender suffering mental retardation — Relevance of mental retardation — Relevance of availability of rehabilitative treatment.

Criminal law — Sentencing — Community protection — Relevance of availability of orders under Crimes (Serious Sex Offenders) Act 2006 (NSW).

Words and phrases — ‘objective seriousness’, ‘standard non-parole period’.

ORDER

Appeal allowed.

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.

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.

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.

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 discharged.

4 Black DCJ acknowledged that the proportion between the non-parole period and the term of the sentence was unusual. His Honour correctly concluded that the provision of a standard non-parole period for the offence did not preclude the imposition of a sentence for which a very short non-parole period was specified. However, his sentencing discretion miscarried because he

did not have the power to impose conditions on a parole order respecting a sentence of nine years' imprisonment. That power is confined to sentences of three years' imprisonment or less 4. Release on parole and the terms of the parole order are matters solely for the Parole Authority in the case of sentences exceeding three years' imprisonment 5

5 The respondent appealed against the inadequacy of the sentence. The challenge was directed to the length of the non-parole period. It was submitted that the structure of the sentence reflected Black DCJ's erroneous view that he had power to impose conditions on the appellant's release on parole. It was also submitted that his Honour had erred by failing to ‘properly consider the relevance of the standard non-parole period of 15 years in determining the appropriate non-parole period’ 6.

6 The appellant sought leave to appeal against the severity of the term of nine years' imprisonment. He submitted that Black DCJ had given disproportionate weight to the need to protect the community in circumstances in which that concern may be addressed by orders made under the Crimes (Serious Sex Offenders) Act 2006 (NSW) (‘the Sex Offenders Act’).

7 The New South Wales Court of Criminal Appeal (McClellan CJ at CL, Howie and Harrison JJ) refused the appellant's application for leave to appeal. The Crown's appeal was upheld and the appellant was re-sentenced to a non-parole period of six years and eight months and a balance of sentence of two years and four months.

8 The appellant appeals to this Court by special leave. He submits that the Court of Criminal Appeal erred in its consideration of the standard non-parole period. He also complains that the Court of Criminal Appeal wrongly rejected Black DCJ's finding that he is ‘significantly intellectually disabled’. Allied to this complaint is the contention that the Court was wrong to reject Black DCJ's emphasis on rehabilitation over denunciation, punishment and deterrence in

structuring the sentence. He submits that the Court of Criminal Appeal erred in failing to find special circumstances warranting a departure from the statutory proportion between the non-parole period and the balance of the term in re-sentencing him 7. Specifically, he complains of the Court's finding that treatment was or may be available to him in custody. The appellant maintains his challenge that the sentence of nine years' imprisonment is excessive

9 For the reasons that follow, the Court of Criminal Appeal erred by refusing leave to challenge the severity of the sentence. It was conceded below that Black DCJ's sentencing discretion had miscarried. This enlivened the Court of Criminal Appeal's power in its discretion to vary the sentence and to impose such sentence as seemed proper 8. In re-sentencing the appellant the Court of Criminal Appeal should have taken, but did not take, sufficient account of the appellant's mental retardation 9. The appeal should be allowed and the proceedings should be remitted to the Court of Criminal Appeal for that Court to re-sentence the appellant.

The proceedings below

10 Black DCJ found that the appellant is ‘significantly intellectually disabled’. He took into account that the appellant had been convicted of a similar offence committed in similar circumstances seven years earlier. The appellant was sentenced by the Queensland District Court for that offence to 12 months' imprisonment to be served by way of an intensive correctional order. His Honour observed that, whatever treatment had been administered in consequence of that order, it had not cured the appellant. In the circumstances, he considered that the protection of the community was to be given weight in the sentence. His Honour found that the appellant's disability was a ‘highly relevant’ factor in sentencing. It was a factor that made it inappropriate to reflect consideration of general deterrence in the sentence. He considered that the

protection of the community would be promoted in the long term by the appellant undergoing treatment at Selwood Lane

11 The Court of Criminal Appeal was critical of Black DCJ's failure to consider the ‘objective seriousness’ of the offence and the part that the standard non-parole period should play in the determination of the appropriate sentence 10. It said 11:

‘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.’

The Court referred to three cases involving the sentencing of an offender for sexual intercourse with a child aged under 10 years 12. It said that these cases confirmed that the non-parole period imposed upon the appellant was ‘entirely inappropriate’ 13. None involved a mentally retarded offender. The Court said that it was constrained by the head sentence of nine years, which had not been the subject of the respondent's challenge 14. The Court was not persuaded that there were special circumstances to justify a departure from the statutory proportion between the non-parole period and the term of the sentence 15.

Standard non-parole periods — the legislative regime

12 The provision of standard non-parole periods for the sentencing of offenders in New South Wales was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) (‘the Amending Act’), which inserted Div 1A of Pt 4 into the Sentencing Act. Division 1A governs the sentencing of offenders for offences to which standard non-parole periods apply. These are...