McKenna v The Queen

Case [2022] SASCA 10


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MCKENNA v THE QUEEN

[2022] SASCA 10

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)

24 February 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Application for permission to appeal and appeal against sentence.

On 7 February 2019, the applicant was sentenced to three years and six months imprisonment for two offences of aggravated assault causing harm with intent, suspended upon his entering into a three year good behaviour bond.

In late June 2020, police and ambulance emergency services were called to the applicant’s parents’ home, where the applicant resided in a granny flat at the rear of the premises. The applicant had been behaving erratically and had told his parents that he had overdosed on prescription medication in order to self-harm. On arrival at the premises, police observed the applicant lighting a bong and took it from him. The applicant stood up holding a large knife. One of the police officers pointed a taser at the applicant and told him to drop the knife and get on the ground. The applicant did so.

The applicant has a history of mental health related issues, including ADHD and intermittent explosive disorder, and associated drug and alcohol abuse disorders.

On 21 September 2021, the applicant pleaded guilty to two counts of assaulting a prescribed emergency services worker and was sentenced to a single sentence of one year, four months and five days imprisonment (from a head sentence of 18 months imprisonment, discounted by ten per cent on account of his guilty plea and by two days already spent in custody). The sentencing Judge revoked the suspended sentence on account of the applicant’s breach of bond. For both the revoked sentence and the new sentence, the sentencing Judge imposed a single sentence of four years and five days imprisonment (allowing ten months partial concurrency) and fixed a non-parole period of 30 months.

The applicant seeks permission to appeal against his sentence on three grounds: first, that he was sentenced on the erroneous factual basis that he had pulled out a large knife and walked or moved towards the police; secondly, that the sentence was manifestly excessive; and thirdly, that the sentencing Judge should have excused the breach of the suspended sentence bond pursuant to s 114(3) of the Sentencing Act 2017 (SA).

Held, per the Court, granting permission to appeal and allowing the appeal on ground 1:

1.      In relation to ground 1, the sentencing Judge erred in sentencing the applicant on the factual basis that he walked or moved towards the police officers while holding the…

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AGLC
McKenna v The Queen [2022] SASCA 10
Case
[2022] SASCA 10
Decision Date

CaseChat Overview and Summary

The applicant, McKenna, sought permission to appeal against a sentence imposed by the Supreme Court of South Australia. The dispute arose from the sentencing of McKenna for two offences of aggravated assault causing harm with intent, for which he had initially received a suspended sentence. Subsequently, McKenna pleaded guilty to two counts of assaulting a prescribed emergency services worker, which led to the revocation of his suspended sentence and the imposition of a new, cumulative sentence.

The legal issues before the Court of Appeal concerned whether the sentencing judge erred in finding a particular factual basis for the sentence, whether the overall sentence was manifestly excessive, and whether the sentencing judge should have excused the breach of the suspended sentence bond. Specifically, McKenna contended that he was sentenced on the erroneous factual basis that he had advanced towards police officers while armed with a knife, and that the sentence imposed was disproportionately severe. He also argued that the circumstances warranted excusing his breach of the good behaviour bond.

The Court of Appeal found that the sentencing judge had indeed erred in proceeding on the factual basis that McKenna moved towards the police officers with the knife. The Court determined that this factual error was significant enough to warrant setting aside the original sentence. In resentencing, the Court acknowledged that grounds to excuse the breach of the suspended sentence bond were not established. Consequently, the Court granted permission to appeal, allowed the appeal on the first ground, set aside the sentence imposed below, and resentenced McKenna. The suspended sentence was revoked, and a new sentence was imposed, to be served concurrently with the sentence for the new offending, with both the head sentence and non-parole period to take effect from the date of the original sentencing.

Orders

Orders of the court

Application for permission to appeal and appeal against sentence.

On 7 February 2019, the applicant was sentenced to three years and six months imprisonment for two offences of aggravated assault causing harm with intent, suspended upon his entering into a three year good behaviour bond.

In late June 2020, police and ambulance emergency services were called to the applicant’s parents’ home, where the applicant resided in a granny flat at the rear of the premises. The applicant had been behaving erratically and had told his parents that he had overdosed on prescription medication in order to self-harm. On arrival at the premises, police observed the applicant lighting a bong and took it from him. The applicant stood up holding a large knife. One of the police officers pointed a taser at the applicant and told him to drop the knife and get on the ground. The applicant did so.

The applicant has a history of mental health related issues, including ADHD and intermittent explosive disorder, and associated drug and alcohol abuse disorders.

On 21 September 2021, the applicant pleaded guilty to two counts of assaulting a prescribed emergency services worker and was sentenced to a single sentence of one year, four months and five days imprisonment (from a head sentence of 18 months imprisonment, discounted by ten per cent on account of his guilty plea and by two days already spent in custody). The sentencing Judge revoked the suspended sentence on account of the applicant’s breach of bond. For both the revoked sentence and the new sentence, the sentencing Judge imposed a single sentence of four years and five days imprisonment (allowing ten months partial concurrency) and fixed a non-parole period of 30 months.

The applicant seeks permission to appeal against his sentence on three grounds: first, that he was sentenced on the erroneous factual basis that he had pulled out a large knife and walked or moved towards the police; secondly, that the sentence was manifestly excessive; and thirdly, that the sentencing Judge should have excused the breach of the suspended sentence bond pursuant to s 114(3) of the Sentencing Act 2017 (SA).

Held, per the Court, granting permission to appeal and allowing the appeal on ground 1:

1. In relation to ground 1, the sentencing Judge erred in sentencing the applicant on the factual basis that he walked or moved towards the police officers while holding the knife.

2. The sentence is set aside, and the appellant resentenced.

3. In resentencing, proper grounds to excuse the breach were not established.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We would order that both the head sentence and the non-parole period take effect from the date the applicant was originally sentenced, namely 21 September 2021. Conclusion We grant the application for permission to appeal, and allow the appeal on Ground 1. We set aside the sentence imposed below and resentence the applicant on the following basis. The suspension of the sentence of three years and six months imprisonment imposed on 7 February 2019 is revoked. A sentence of 13 months and 12 days imprisonment is imposed for the subject offending. This sentence is to be served concurrently as to 10 months, resulting in a total head sentence of three years, nine months and 12 days imprisonment. A non-parole period of one year and 10 months is fixed. Both the head sentence and the non-parole period are to take effect from the date the applicant was originally sentenced, namely 21 September 2021.

Ratio Decidendi

Legal Principle Established

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