R v Muldrock Muldrock v R

R v Muldrock Muldrock v R - [2010] NSWCCA 106 - NSWCCA 2010 case summary — Zoe

Cases Cited (11)

CITATION: R v Muldrock Muldrock v R [2010] NSWCCA 106

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 CASES CITED : Philopos v R [2008] NSWCCA 66 R v AGP [2004] NSWCCA 434; 158 A Crim R 575 R v Cheh [2009] NSWCCA 134 at [30] R v JW [2010] NSWCCA 49 R v Wall [2002] NSWCCA 42 R v Hemsley [2004] NSWCCA 228

The standard non-parole periods 29 The sentencing judge's remarks do not indicate any appreciation of the obligation to consider the objective seriousness of the offence and determine what part the standard non-parole period should play in determining the appropriate sentence. It would seem that his Honour acknowledged the standard non-parole period but referred to it only in the context of the head sentence and not when considering the non-parole period that should be imposed. 30 This Court has seen errors of this nature on other occasions. It is important for sentencing judges to remember that the standard non-parole period is not provided to assist in identifying the appropriate total term but defines the non-parole period for an offence falling within the mid range of objective seriousness: Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ss 54 A-54D. 31 In the ultimate it is impossible to reconcile the non-parole period which the sentencing judge imposed with the non-parole periods provided for this offence. Furthermore, when defining the non-parole period his Honour made no reference to any finding of special circumstances which would have been the only basis upon which the particular non-parole period could have been imposed. It is apparent that his Honour, having been informed of the opportunity for the respondent to be placed in the "Selwood Lane" facility and mindful of his mental disability was diverted from and did not carry out the task required of a sentencing judge. 32 Before the Parliament enacted s 68A of the Crimes (Appeal and Review) Act 2001 the principles relevant to the determination of a Crown appeal on sentence were those discussed by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] (Meagher JA and Bell J agreeing). Section 68A has modified those principles removing any consideration of double jeopardy when considering whether an offender whose sentence is the subject of a Crown appeal should be resentenced and the length of that sentence. Section 68A was authoritatively considered by this Court in R v JW [2010] NSWCCA 49. It is clear notwithstanding s 68A that this Court retains a discretion as to whether or not to intervene [JW at [95]). 33 Counsel for the respondent submitted that this Court should not intervene. His counsel accepted that although his Honour contemplated that the respondent would immediately be released to parole this could only occur if he was released by the Parole Authority. It was submitted that all that his Honour had done was structure the sentence to enable the Parole Authority to immediately send the respondent to Orange. It was submitted that by structuring the sentence so that an opportunity was available for the respondent to be immediately treated his Honour had given appropriate consideration to the rehabilitation of the respondent. It was submitted that his Honour had not contemplated "a standard release to parole" and that in reality he would remain in custody when residing at "Selwood Lane". It was submitted that at a time close to his ultimate release date the Crown may consider an application for a continuing supervision or detention order pursuant to s 14 of Crimes (Serious Sex Offenders) Act 2006 which would enable a decision to be made as to whether his further incarceration was necessary in order to protect the public.

The appropriate sentence 34 In my opinion this Court must intervene and resentence the respondent to provide an appropriate non-parole period. It is plain that because of the structure of the sentence which his Honour imposed he focused entirely on rehabilitation and failed to recognise the need for denunciation and punishment of the respondent, specific deterrence and, it being not entirely irrelevant, general deterrence. The offence which the respondent committed was premeditated, his victim being induced to take a bike ride with him to a secluded location where the offence was committed. Although the level of criminality was significant in my view it was less than mid range of objective seriousness for this offence. He should be sentenced accordingly. 35 The Crown provided written submissions in which reference was made to the Judicial Commission's statistics for this type of offence. The sample is relatively small, 27 cases, and notwithstanding the standard non-parole period the majority received non-parole periods of less than 5 years. This suggests, although without detail of individual cases it is impossible to make any authoritative determination, that the non-parole periods which have been imposed have not paid sufficient regard to the standard non-parole period. 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. 36 This Court considered the circumstances of an offender convicted of a breach of s 66A in Karl Eedens v R [2009] NSWCCA 254. In that case the offender had a record of previous convictions for similar offences. He did not have intellectual deficiencies as have been identified with the respondent. Furthermore in Eedens there were three victims who ranged in aged from 8 to 13 years. 37 Eedens appealed his sentence which included a total term of 12 years and a non-parole period of 9 years. The sentence was reduced on appeal to a total term of 8 years and 3 months with a non-parole period of 6 years and 2 months. The sentence was reduced by 25% on account of the offender's guilty plea. 38 In R v AGP [2004] NSWCCA 434; 158 A Crim R 575 the offender was charged with an offence under s 66A. There was a Form 1 which included an offence of aggravated indecent assault. The offender was sentenced at first instance to a total term of 3 years imprisonment with an 18 months non-parole period. The complainant was the offender's 8 year old niece. The offender was 22 years of age and had no prior criminal history. The intercourse was fellatio. 39 A Crown appeal was upheld and recognising the limitations on a Crown appeal, including double jeopardy, the offender was resentenced to a period of imprisonment of 5 years with a non-parole period of 2 years and 6 months. 40 In MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93 the offender pleaded not guilty to a breach of s 66A which involved penile/vaginal intercourse with his 9 year old daughter. She suffered a torn hymen as a result of the offence. The offender was sentenced to a total term of 16 years with a non-parole period of 12 years which was reduced on appeal to 11 years. 41 These cases and others discussed in the reasons, particularly in Eedens overwhelmingly confirm that the non-parole period which his Honour imposed was entirely inappropriate. However, in resentencing this Court is constrained by the head sentence which his Honour imposed and which has not been challenged by the Crown in his appeal. As the sentence I propose suggests the consequence is that the non-parole period which is appropriate is confined by the overall term. 42 I have previously discussed the evidence in relation to the respondent's intellectual handicap. Although it should not be given the significance apparently given to it by the sentencing judge in my view general deterrence was, because of his handicap, a less significant matter. 43 The sentencing judge allowed a discount of 25% for the respondent's guilty plea. Although in my view that plea was not entered at the earliest opportunity and its utilitarian value has accordingly diminished in all the circumstances I would not intervene to vary the discount. The necessary variation would not be of significance in the overall sentence. 44 The rehabilitation of the respondent is a matter of significance. The period which I propose that he serve in full time custody will allow for his treatment if it is available within the prison system. When the question of his release to parole is being considered the Parole Authority will be able to review the possibility of his further treatment in some suitable facility within the community. 45 I am not persuaded that a finding of special circumstances would be appropriate. It is plain that the respondent requires effective treatment if he is ever to be a responsible member of the community. That treatment is available within the prison system. The usual period on parole which follows from the head sentence will be sufficient to allow his reintegration into the community if the Parole Authority determines that he should be released. 46 I propose the following orders:

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Cases Cited (11)