Malkoun v The Queen; Malkoun v The Queen

These proceedings before the High Court of Australia involved applications for special leave to appeal by Mr Malkoun and a co-appellant against sentences imposed by a lower court. The applicants, represented by Mr Bellanto QC and Mr Merkel QC respectively, contended that there had been a serious or gross breach of the sentencing discretion, leading to error and injustice. The Crown was represented by Mr Bongiorno QC.

The central legal issues before the High Court concerned the proper exercise of the sentencing discretion, specifically in relation to the fixing of minimum terms of imprisonment. The applicants argued that a minimum term set at 88 per cent of the head sentence was so high that it failed to provide any meaningful opportunity for rehabilitation or conditional freedom. Furthermore, they submitted that sentencing judges and appellate courts are obliged to articulate the relevant considerations that inform the determination of a minimum term, as these reasons are crucial for the appellant, the community, and any appellate review to understand the basis of the judicial discretion exercised.

The applicants argued that the Full Court had erred by focusing solely on the head sentence and, finding no error in that, concluded there was no error in the minimum term. They contended that the ratio between the head sentence and the minimum term was effectively nugatory and did not serve the intended purpose of a minimum term. The applicants sought to establish that sentencing judges should provide reasons for fixing a minimum term, drawing a parallel with practices in New South Wales, where recent authority suggested such reasons were necessary for transparency and appellate scrutiny.