The decision in Muldrock v R does not preclude a sentencing judge from considering an offender's mental state when assessing moral culpability as part of the instinctive synthesis; the Muldrock prohibition applies only to the use of personal characteristics in placing an offence on the hypothetical range of objective seriousness under s 54A(2). Where psychiatric evidence at sentencing was materially incomplete through no fault of the sentencing judge, and new evidence reveals the offender was mentally ill at the time of offending contrary to the basis on which sentence was imposed, the Court of Criminal Appeal may exercise its residual discretion to receive the evidence to avoid a miscarriage of justice, even where the evidence does not qualify as 'fresh evidence' in the strict sense.
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