Dulihanty v R [2013] NSWCCA 275

Dulihanty v R [2013] NSWCCA 275

Although Muldrock error was conceded, the Court was not satisfied that a lesser sentence was warranted in law. The offence was grave and disturbing, involved an attack from behind on a vulnerable sex worker at secluded unoccupied premises, the Applicant left the injured victim without assistance, the victim suffered...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 November 2013
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time to Seek Leave to Appeal Against Sentence
Outcome
Application for extension of time to appeal against sentence refused
Legal Topics
['application for Extension of Time to Appeal' 'standard Non Parole Period' 'muldrock Error' 'malicious Wounding With Intent to Cause Grievous Bodily Harm' 'whether a Lesser Sentence Is Warranted in Law Under S.6(3) Criminal Appeal Act 1912']
['criminal Law' 'sentencing'] ['application for Extension of Time to Appeal' 'standard Non Parole Period' 'muldrock Error' 'malicious Wounding With Intent to Cause Grievous Bodily Harm' 'whether a Lesser Sentence Is Warranted in Law Under S.6(3) Criminal Appeal Act 1912']

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time to Seek Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing Judge erred in his approach to the standard non-parole period legislation in light of Muldrock v The Queen [2011] HCA 39; 244 CLR 120.' 'Whether, despite conceded Muldrock error, some lesser sentence was warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912.' 'Whether the Court should grant an extension of time to seek leave to appeal against sentence.']

Ratio Decidendi

Although Muldrock error was conceded, the Court was not satisfied that a lesser sentence was warranted in law. The offence was grave and disturbing, involved an attack from behind on a vulnerable sex worker at secluded unoccupied premises, the Applicant left the injured victim without assistance, the victim suffered significant physical and psychological consequences, and specific and general deterrence remained significant. Having considered the objective circumstances, the Applicant's subjective circumstances, and the evidence on the application, the sentence of a five-year non-parole period with a three-year balance of term remained appropriate, so the extension of time was refused.

Court Disposition

Application for extension of time to appeal against sentence refused

Orders

  • ['The application for extension of time to seek leave to appeal against sentence is refused.']