The Court of Criminal Appeal has refused Linda Mulhall’s application for a certificate to appeal to the Supreme Court on four proposed questions about her manslaughter sentence.
The application followed earlier Court of Criminal Appeal decisions on her sentence, including a decision not to set it aside after considering reports about her circumstances. In this judgment, delivered on 16 July 2010, the court considered whether any of the proposed questions arose from its decisions and met the statutory test of exceptional public importance and desirability in the public interest.
Mulhall had been convicted of manslaughter after a jury accepted a defence of provocation and acquitted her of murder. The sentencing judge imposed a 15-year sentence. On her application for leave to appeal against sentence, the Court of Criminal Appeal had held that the judge erred by proceeding without reports that had been requested and ordered. It adjourned the application to receive reports but did not then set the sentence aside. After reviewing the reports, the court later found no basis to set aside the sentence for a fundamental error of law.
The proposed questions concerned whether the appeal court should reconsider sentence afresh after receiving reports; how conduct after an unlawful killing may be considered at sentencing; whether rehabilitation must be provided for a first-time offender who is a mother of young children; and whether the sentencing judge could discount personal circumstances because provocation had been accepted by the jury.
The court rejected the first question because it had not decided to set aside the sentence, so the statutory power to impose a replacement sentence had not been engaged. It also said the proposed issue did not have an evident wider application or public interest basis, given the unusual facts.
On the second question, the court said established principles allow relevant surrounding circumstances to be considered while requiring courts to respect the line between those circumstances and sentencing for uncharged offences. It said the events following the killing in this case formed a seamless chain with the assault, and rejected the question as unsuitable for referral.
The court said the third question was addressed by established sentencing law and that being a first-time offender or a parent did not create an automatic entitlement to a particular sentence. It rejected the fourth question because it had not formed part of the court’s determination in its earlier decisions.
The court refused a certificate on all four questions. The judgment determined only the certificate application; it did not replace the sentence or grant an appeal to the Supreme Court.