Mental Retardation and Sentencing in the case of Muldrock v The Queen

The High Court today has allowed the appeal in Muldrock v The Queen [2011] HCA 39 and remitted the matter back to the NSW Court of Criminal Appeal, ordering that the appellant to be resentenced according to the reasons delivered in the High Court judgment.

Mr Muldrock is mentally retarded.  In March 2007, he befriended a nine year old boy and took advantage of an opportunity when the two were alone to suck the boy's penis.  He was charged with the offence of sexual intercourse with a child aged under 10 years.  The standard non-parole period for the offence is 15 years.

The appellant pleaded guilty and, at first instance, was sentenced to 9 years in prison with a non-parole period of 96 days, to take account of this plea, with a condition of release on parole that the appellant reside at Selwood Lane, an institution specialised in rehabilitating sexual offenders.

The NSW Court of Criminal Appeal accepted the Crown's inadequacy of sentence appeal on the basis of the sentencing judge's failure to consider the "objective seriousness" of the offence. 

Mr Muldrock appealed to the High Court by special leave. The court accepted his reasoning that the Court of Criminal Appeal erred in its consideration of the standard non-parole period. They also accepted that the Court of Criminal Appeal should have taken, but did not take sufficient account of the appellant's mental retardation.

This decision raises the issue of whether sentencing is dependent on standard non-parole periods in criminal law.

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