Muldrock v The Queen [2011] HCA 39

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DEREK MULDROCK APPELLANT

AND

THE QUEEN RESPONDENT

Muldrock v The Queen [2011] HCA 39

5 October 2011

S121/2011

ORDER

1. Appeal allowed.

2. 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.

3. 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.

On appeal from the Supreme Court of New South Wales

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))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.