The Muldrock Error is a Winner for Some

Two convicted killers have recently had their sentences cut on appeal, using the so-called Muldrock error as grounds.

Both Yusuf Aytugrul and William Matheson claimed Muldrock error, and were successful in getting time off their non-parole periods and maximum sentences.

So how can this error be applied, and are there are other ways for sentences to be reduced?

The starting point – new non-parole periods

‘Non parole periods’ are the time that someone must spend in prison before they are eligible to apply for release.

In 2003, the NSW Government enacted a new scheme of standard non-parole periods (SNPPs). SNPPs are a guidepost for the sentencing judge when imposing the non-parole period in a relevant case.

SNPPs were initially set for 21 serious criminal offences. The government also increased the non-parole periods for the most serious of these offences. The new scheme created a lot of public interest and was widely reported.

However, behind the scenes, the implementation of the new scheme was causing confusion in legal circles.

The approach before Muldrock

Colin James Way was convicted of a number of drug offences. In 2004, he appealed his sentence to the Court of Criminal Appeal (CCA). This appeal was what the NSW legal circles were waiting for.

The approach from the CCA would provide a clear direction of how to interpret the new provisions. The approach taken by the court in Way was considered, until quite recently, the correct approach.

Deputy Senior Public Defender Robert Hume in his paper “Standard non-parole periods: A way though the mire” gave a summary of the approach taken by the court in Way. This approach was subsequently followed by the courts pre-2011.

The summarised approach was:

1. SNPPs do not apply in cases:

(a) which are assessed as not falling within the middle of the range of objective seriousness, or

(b) in which there has been a plea of guilty, or

(c) in which there is some other aggravating or mitigating factor.

2. If the SNPP period does not apply, an unfettered sentencing discretion should be exercised in the traditional manner.

3. The SNPP is not a starting point that is then increased, or decreased, for specific aggravating or mitigating factors.

The Muldrock error

Derek Muldrock was sentenced in 2011 to nine years’ imprisonment and a short non-parole period. He was described by the trial judge as “significantly intellectually disabled.”

It was because of his disability that the trial judge attached conditions to his parole. A sentence judge cannot attach conditions to a parole period if the conviction carries with it a prison sentence of more than three years.

Muldrock used this error of law to appeal his sentence. He claimed the sentence period was too severe. The Crown claimed the sentence was too lenient.

In the Appeal Court, the judges denied Muldrock leave to appeal. Rather they upheld the Crown’s contention that there should be no conditions attached to Muldrock’s parole.

Muldrock was re-sentenced to a non-parole prison term of six years and eight months. In addition, he was sentenced to a parole period of two years and four months, a total of nine years.

His criminal defence lawyers then appealed to the High Court.

In a unanimous decision, the High Court agreed that the Appeal Court was in error when it refused to grant Muldrock leave to appeal. It found that the “court should have taken, but did not take, sufficient account of the appellant’s mental retardation.”

It held the approach taken by the Appeals Court was therefore incorrect. This then overturned the sentencing method which was being adopted as a result of Way.

The High Court held:

“ …Way was wrongly decided. …The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non parole period nor to proceed to an assessment of whether the offence is within the mid-range objective seriousness….The provision [s54B] must be read as a whole.”

It found that in reading the combined sections of 54B(2), 54B(3) and 21A, of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court needed to follow the approach in Markarian v The Queen [72], which was that “the judge identifies all the factors that are relevant to the sentence, discusses their significance, and then makes a value judgement as to what the appropriate sentence given all the factors of the case.”

Post-Muldrock

It will be no surprise that after the ruling of the High Court in Muldrock, the NSW Government referred the Non-Parole Sentencing Scheme to the NSW Law Report Commission.

The Commission recommended retaining the scheme, but that it be monitored and amended to “preserve the approach in Muldrock and to clarify the uncertainties which have arisen.”

Amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW) were made in 2013 to reflect the recommendations and the ruling of the High Court.

So how can the Muldrock error be applied?

If a sentence was decided before the 2003 amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW), the Muldrock error is not able to be submitted as grounds for an appeal. If the sentence was decided between 2003 and 2011, it may be able to be appealed using the Muldrock error.

A Muldrock error will likely succeed if the trial judge treated the standard non-parole period as mandatory, engaged in a two-step process, or used the standard non-parole period as a benchmark from which to begin the sentencing exercise.

How else can a sentence be reduced?

There are provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’) which can be used to reduce a person’s ultimate sentence.

These include:

• Mitigating factors in section 21A of the CSPA. These include having no previous criminal convictions, employment status, health status, age, prospects of rehabilitation and evidence of remorse.
• Assisting authorities. Section 23 of the CSPA enables a person to get a reduced sentence for assisting authorities with their investigations.
• A plea of guilty. Section 22 of the CSPA requires courts to give a sentencing discount to those who plead guilty. This recognises that a plea of guilty has saved public resources, money and time.

A good lawyer is essential in being able to successfully argue for a reduced sentence.

If you want to lodge an appeal against a sentence, the process is complex. An experienced criminal defence lawyer will be able to advise you on whether you have grounds for appeal, such as the Muldrock error, and the likelihood of an appeal being successful.