Citation: R v Muldrock; Muldrock v R [2010] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 14 May 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J
Background
The respondent pleaded guilty in the District Court to sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act 1900. The offence involved a nine-year-old boy who had only recently met the respondent through a church community. A second offence of aggravated indecent assault on the same victim was placed on a Form 1 to be taken into account at sentencing.
The District Court sentenced the respondent to 9 years imprisonment but set a non-parole period of just 96 days, backdated so that it expired on the very day of sentencing. The sentencing judge structured the sentence this way to enable immediate transfer to a community-based residential facility for sex offenders with intellectual disabilities, treating that placement as a condition of parole.
The Crown appealed on the ground that the sentence was manifestly inadequate. The respondent separately sought leave to appeal, arguing that the 9-year head sentence was itself excessive.
Legal Issues
- Whether the sentencing judge gave excessive weight to the respondent's prospects of rehabilitation and his intellectual disability, and insufficient weight to other sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge failed to properly consider the standard non-parole period of 15 years applicable to the principal offence
- Whether the sentencing judge erroneously structured the sentence on the basis that he had power to impose conditions on parole
- Whether the sentencing judge adequately identified special circumstances sufficient to justify a non-parole period representing less than 3% of the total term
- Whether the 9-year head sentence was excessive
Decision
The Court of Criminal Appeal upheld the Crown appeal. The sentencing judge's imposition of a non-parole period of only 96 days was found to be entirely inappropriate in the circumstances. The principal offence carries a standard non-parole period of 15 years, and while that figure is not a mandatory minimum, the sentencing judge's approach gave it no meaningful weight.
The Court found that the sentencing judge had placed excessive emphasis on rehabilitation and the respondent's intellectual disability, while giving inadequate weight to the other purposes of sentencing, including punishment, deterrence, and community protection. Although the respondent's intellectual disability was accepted as relevant, and was a basis for treating general deterrence as a less significant consideration, it did not justify the extraordinary reduction in the non-parole period that was imposed.
The Court also found that the sentencing judge had no power to impose conditions on parole. That function belongs to the Parole Authority, not the sentencing court. The structure of the sentence was therefore built on an erroneous legal premise.
The Court was not persuaded that special circumstances existed to justify departing from the standard ratio between non-parole period and balance of term. The respondent's need for treatment was acknowledged, but the Court noted that treatment programs are available within the prison system, and the Parole Authority would be able to assess his progress and suitability for community-based support upon any future release. The respondent's application for leave to appeal the head sentence was refused, so the Court resentenced within the constraints of the existing 9-year total term.
Orders Made
- Crown appeal upheld; sentence imposed in the District Court quashed
- Respondent resentenced to a non-parole period of 6 years and 8 months, commencing 22 April 2009 and expiring 21 December 2015, with a balance of term of 2 years and 4 months expiring 22 April 2018
- Respondent eligible for release to parole on 21 December 2015
- Respondent's application for leave to appeal refused
Key Takeaways
- A non-parole period of 96 days on a 9-year sentence for a child sexual assault offence carrying a 15-year standard non-parole period was held to be so inadequate as to warrant intervention on a Crown appeal.
- Intellectual disability is a relevant mitigating factor that may reduce the weight given to general deterrence, but it does not, of itself, justify a non-parole period that is wholly disproportionate to the total term and to the gravity of the offence.
- Sentencing courts have no power to impose conditions on parole; the power to set and vary parole conditions rests with the Parole Authority, and a sentence structured to achieve a particular parole outcome exceeds the court's jurisdiction.
- Where special circumstances are not adequately identified and established, no departure from the standard proportional relationship between non-parole period and balance of term is warranted.
- In resentencing after a successful Crown appeal, the Court of Criminal Appeal is constrained by the unchallenged head sentence; the revised non-parole period must fit within that fixed overall term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (sentencing purposes), standard non-parole period provisions
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Serious Sex Offenders) Act 2006 (NSW)
Cases:
- 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
- R v JW [2010] NSWCCA 49
- R v Wall [2002] NSWCCA 42
- R v Hemsley [2004] NSWCCA 228