Director of Public Prosecutions v McKay

The Director of Public Prosecutions brought an appeal against the sentence imposed on McKay for multiple serious criminal offences committed while on bail. McKay was charged with theft, dangerous driving while pursued by police, damaging an emergency service vehicle by reckless driving, and recklessly exposing an emergency worker to risk by driving. The offences were committed over a short period of time, and McKay had an appalling criminal history. The primary judge sentenced McKay to a term of imprisonment but suspended the sentence, ordering McKay to complete a rehabilitation program. The Director of Public Prosecutions appealed the sentence as manifestly inadequate.

The legal issues before the court were whether the primary judge had correctly exercised its discretion, properly applied the relevant sentencing principles, and adequately considered the principles of totality and proportionality. Specifically, the court needed to determine whether the sentence was appropriate in light of the very high moral culpability of the offences, the appalling prior criminal history of the offender, and the principle that a sentence should reflect the degree of moral blameworthiness of the offender. The court also had to consider whether the sentence appropriately reflected the principles of totality and proportionality, ensuring that the sentence imposed was not excessive or inadequate.

The court found that the primary judge had not correctly exercised its discretion in imposing the sentence. The court held that the sentence was manifestly inadequate and did not appropriately reflect the degree of moral culpability of the offences or the appalling criminal history of the offender. The court noted that the primary judge had not adequately considered the principles of totality and proportionality, and had failed to take into account the need to deter the offender and others from committing similar offences. The court also found that the primary judge had not given sufficient weight to the principle that a sentence should reflect the degree of moral blameworthiness of the offender. The appeal was therefore allowed, and the sentence was set aside.

The court ordered that McKay be re-sentenced, with directions that the re-sentencing judge consider the principles of totality and proportionality, the need for general and specific deterrence, and the need to reflect the degree of moral culpability of the offences. The court also directed that the re-sentencing judge consider the appalling criminal history of the offender, the very high moral culpability of the offences, and the principle that a sentence should reflect the degree of moral blameworthiness of the offender. The court further directed that the re-sentencing judge give consideration to the early pleas of guilty and the disadvantaged upbringing of the offender, but that these factors should not be given undue weight in determining the appropriate sentence.