When a sentencing judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the discretion has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh, taking into account the purposes of sentencing and the factors that the relevant legislation requires or permits. The Court does not assess whether and to what degree the error influenced the outcome.
Where Muldrock error is established and the Court exercises its independent sentencing discretion afresh, significant post-sentence rehabilitation including tertiary qualifications, drug treatment, mentoring, and exemplary custodial conduct can substantially reduce the sentence for supply of a large commercial quantity of cocaine. The profitability of drug offending can inform objective seriousness regardless of whether a separate sentence was imposed for dealing with proceeds of crime.
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