Go to content

Muldrock

Legal Aid NSW responds to High Court decision

Muldrock v The Queen [2011] HCA 39    
5 October 2011

The High Court has held that R v Way (2004) 60 NSWLR 168 was wrongly decided. This decision will potentially affect the sentencing of offenders convicted of an offence with a standard non-parole period.

The decision in Muldrock will lead to changes in sentencing practices in the District Court and on appeal. Interestingly, the decision may also impact on our clients who are in custody as a result of what Muldrock identified as a sentencing error: circumstances where the Court may have given excessive weight to the standard non parole period, whether they pleaded guilty or not.
 
Based on advice on the impact of Muldrock from Senior Counsel, the Criminal Law Division of Legal Aid NSW has moved quickly to set up a new Muldrock Review team. The team will include six additional lawyers and two support staff who will be assisted by two public defenders.
 
Over a period of six months, with the possibility of an extension to 12 months, the lawyers in the team will conduct a systematic review of more than 3,000 closed files. Where it seems a sentencing error may have occurred, public defenders will provide merit advices. Where there is merit, they will commence proceedings subject to legal aid being granted. Cases will be prioritised according to criteria to be determined by the team and informed by cases on this issue decided since Muldrock.
 
This is another example of Legal Aid NSW at its best: mobilising quickly to respond to a sentencing error that has impacts for our most marginalised clients. 
 
Stay tuned for news from the Muldrock Review Team.

More information

You can read the case here: http://www.austlii.edu.au/au/cases/cth/HCA/2011/39.html.