McKenna v The Queen

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 The suspended sentence was revoked, and a new sentence was imposed, to be served concurrently with the sentence for the new offending, with both the head sentence and non-parole period to take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.