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Court of Criminal Appeal 18 May 2012

R v Muldrock; Muldrock v R

[2012] NSWCCA 108

Sexual offences
CRIMINAL LAW SENTENCE INTELLECTUALLY DISABLED OFFENDER RELEVANCE OF STANDARD NON PAROLE PERIOD

Citation: R v Muldrock; Muldrock v R [2012] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 18 May 2012
Judge(s): Allsop P, Hoeben JA, Beech-Jones J

Background

The appellant pleaded guilty to having sexual intercourse with a child under ten years of age, contrary to s 66A of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years. The appellant was found to have a mild intellectual disability, with an IQ placing him in the lowest one per cent of the population, and his adaptive behaviour in the lowest 0.1 per cent.

At the original sentencing, the District Court imposed a head sentence of nine years but a non-parole period of only 96 days. That unusual structure was driven by the sentencing judge's wish to facilitate the appellant's placement in a residential rehabilitation facility for sex offenders called Selwood Lane.

The Crown appealed the sentence as manifestly inadequate, and the Court of Criminal Appeal allowed that appeal, substituting a sentence with a non-parole period of six years and eight months. The appellant then successfully appealed to the High Court, which set aside the Court of Criminal Appeal's orders and remitted the matter for resentencing: Muldrock v R [2011] HCA 39.

  • What sentence was appropriate for an intellectually disabled sex offender following the High Court's guidance in Muldrock v R [2011] HCA 39?
  • What weight should be given to the standard non-parole period of 15 years in resentencing?
  • To what extent could general and specific deterrence inform the sentence, given the appellant's intellectual disability?
  • Whether the head sentence could or should be increased beyond what was proportionate to the offence to enable supervision upon release or access to rehabilitation programmes.

Decision

The Court conducted a fresh sentencing exercise guided closely by the High Court's reasons. The High Court had found that the standard non-parole period, while not without relevance, was only one of many factors to be weighed, and that it had been given disproportionate significance in previous sentencing practice. Applied to this offender, the combination of severe intellectual disability, his childhood sexual victimisation, and findings about his limited impulse control significantly affected the weight to be given to deterrence.

The court accepted that the reduced weight of general and specific deterrence, when combined with the objective circumstances of the offending as characterised by the High Court, pointed to an overall sentence of three years. A finding of special circumstances was also made, though the court acknowledged that, as a practical matter, the period of supervision following release had already passed.

The court firmly rejected any approach of increasing the head sentence beyond what was proportionate to the offence merely to extend community protection or enable post-release supervision. That course was held to be contrary to the principle, restated by the High Court in Muldrock, that a sentence must not be inflated beyond proportionality for protective purposes. Equally, the suggestion of fixing a later commencement date under s 47(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), so as to create an unexpired portion of sentence for supervision, was rejected on the same basis.

The court noted that the circumstances producing this particular sentence were likely to be unique, and that it offered limited guidance to future cases. The court also observed that the High Court's decision in Muldrock reduced, but did not eliminate, the significance of standard non-parole periods in sentencing under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act.

Orders Made

  • The sentence imposed by the Court of Criminal Appeal on 14 May 2010 was set aside.
  • The appellant was resentenced to a total term of three years, with a special circumstances finding.
  • The sentence was backdated to the date the appellant entered custody.

Key Takeaways

  • The High Court's decision in Muldrock v R [2011] HCA 39 reduced the significance of standard non-parole periods in sentencing under Division 1A, but did not render them irrelevant: they remain one factor among many.
  • Where an offender has a significant intellectual disability, both general and specific deterrence carry materially reduced weight in the sentencing calculus.
  • A fundamental principle of sentencing, confirmed by the Court of Criminal Appeal following the High Court, is that a sentence cannot be increased beyond what is proportionate to the offence in order to extend community protection or supervision.
  • Structuring a sentence to extend its operational period solely to provide post-release supervision, whether by lengthening the head sentence or manipulating its commencement date under s 47(2), was held to be impermissible on proportionality grounds.
  • The availability of a rehabilitation programme is a factor relevant to sentencing, but it cannot justify a head sentence that exceeds what is otherwise proportionate to the offending conduct.

Legislation and Cases Referenced

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

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