McKenzie v The King

Case [2023] SASCA 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MCKENZIE v THE KING

[2023] SASCA 92

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Kimber)

31 August 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The applicant was convicted by a jury of Aggravated Causing Serious Harm with Intent to Cause Serious Harm.  From a starting point of 11 years, the applicant was sentenced to imprisonment for 10 years, seven months and 17 days with a non-parole period of five years, six months. 

The applicant sought to appeal the sentence on two grounds.  First, that the sentencing Judge erred in sentencing the applicant for an offence that was not charged.  Second, that the head sentence was manifestly excessive.  The application is out of time.  The respondent filed a cross appeal with respect to the non-parole period, the complaint being one of manifest inadequacy. 

Held (by the Court), allowing the appeal:

1.      The extension of time is granted. 

2.      The first ground is without merit.  The applicant was not sentenced for an offence not charged.  

3.      The head sentence is manifestly excessive.  

4.From a starting point of eight years and six months, the applicant is resentenced to a term of imprisonment for eight years, one month and 17 days with a non-parole period of four years, seven months and 17 days.

5.      As the applicant has been re-sentenced, the cross appeal need not be determined.  

Criminal Law Consolidation Act 1935 (SA) ss 21 and 23(1), referred to.

Hackett v the Queen [2021] SASCA 32; Hall v The Queen [2020] SASCFC 84; Hili v The Queen (2010) 242 CLR 520; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Wong v The Queen (2001) 207 CLR 584; R v Chalmers [2012] SASCFC 128, applied.
R v De Simoni (1981) 147 CLR 383, distinguished.

Woodhart v The Queen [2022] SASCA 9; R v McNamara (2009) 105 SASR 38; R v Clancy [2013] SASCFC 63; R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Burner [2015] SASCFC 133; R v Cekic & Ors [2016] SASCFC 26, discussed.

MCKENZIE v THE KING
[2023] SASCA 92

Court of Appeal — Criminal: Lovell and Doyle JJA and Kimber AJA

THE COURT:

  1. After a trial before a jury, the applicant was convicted of Aggravated Causing Serious Harm with Intent to Cause Serious Harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The offence was aggravated as a knife was used. The maximum penalty is imprisonment for 25 years.

  2. On 22 December 2021, from a starting point of 11 years’ imprisonment, the applicant was sentenced to imprisonment for 10 years, seven months and 17 days with a non‑parole period of five years, six months.…

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McKenzie v The King [2023] SASCA 92
Case
[2023] SASCA 92
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CaseChat Overview and Summary

The applicant, McKenzie, appealed against a sentence imposed by the sentencing judge. The appeal concerned the severity of the sentence, with the applicant arguing it was manifestly excessive. The respondent conceded that if the Court found the sentence to be manifestly excessive, an extension of time to file the appeal would be appropriate, a concession with which the Court agreed.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the head sentence and non-parole period imposed were manifestly excessive, and if so, what sentence should be substituted. In determining the excessiveness of the sentence, the Court considered the maximum penalty for the offence, the seriousness of the conduct, the potential for harm, the finding of an intention to endanger life, the importance of general deterrence, and the applicant's prospects of rehabilitation. The Court also had regard to the actual harm caused, the applicant's work history, limited past offending, and family support, as well as comparing the sentence to those imposed in other cases.

The Court reasoned that while the offence was serious, involving an unprovoked knife attack to a vulnerable body part with a real potential for greater harm, and the finding of an intention to endanger life was open, the actual harm caused was towards the lower range. The Court also noted the applicant's good work history, limited prior offending, and family support. While acknowledging the importance of general deterrence and the applicant's failure to explain his possession of the knife or the offence beyond heavy drinking, which made rehabilitation prospects difficult to estimate, the Court found that sentences exceeding 10 years were typically imposed in cases with more serious harm or a more significant negative antecedent history. Consequently, the Court concluded that the head sentence was beyond the appropriate range. The Court granted the extension of time, quashed the original sentence, and re-sentenced the applicant to a head sentence of eight years and six months, with a non-parole period of five years, reflecting a greater proportion for the non-parole period due to the absence of remorse and the need for caution regarding rehabilitation prospects. Both the head sentence and non-parole period were reduced by four months and 13 days to account for time already spent in custody and on home detention bail.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before proceeding to determine the appeal, it is necessary to acknowledge that the application is out of time. The applicant was sentenced on 22 December 2021. The notice of appeal was not filed until 31 January 2023. The affidavit of the applicant in support of the extension of time sets out his explanation for the delay. It is not necessary to examine that explanation nor the principles relevant to whether an extension of time should be granted. The respondent conceded that if this Court concluded the sentence was manifestly excessive, an extension of time would be appropriate. We agree with that concession. Conclusion In considering whether the sentence imposed in this case is manifestly excessive, a starting point is to have regard to the maximum penalty. The maximum penalty provides an indication of how serious the legislature regards the offence. As set out above, the maximum penalty is 25 years. The offence was a serious one. The attack was unprovoked, committed with a knife and the blow was to a vulnerable part of the body. The potential for even more serious harm was real. The finding of an intention to endanger life was open and we would not reach a different conclusion bearing in mind the advantage the sentencing Judge enjoyed in hearing the evidence. General deterrence was an important consideration in sentencing. The community is rightly concerned about crimes involving weapons. As the sentencing Judge pointed out, this Court has long been concerned with outbreaks of public violence, particularly between young men.[17] The applicant also needed to be deterred. We agree with the sentencing Judge that the failure of the applicant to explain why he was carrying the knife and to explain the offence other than that he was drinking heavily makes it difficult to estimate his prospects of rehabilitation. [17] R v Chalmers [2012] SASCFC 128, [2] (Kourakis CJ). At the same time, the serious harm caused was towards the lower range and the applicant had a good work history, limited past offending and family support. Further, recognising the limits in the utility of comparing sentences imposed in other cases, the review of the sentences set out above suggests that sentences of more than 10 years have been imposed where the harm caused was more serious than that suffered in this case and/or where the antecedent history reduced the basis for leniency to a more significant extent than is so for this applicant. In all the circumstances, we are satisfied that the head sentence was beyond the range appropriate for this offence and this offender. We grant the extension of time, grant permission to appeal and quash the head sentence and non‑parole period. Re-sentencing In re-sentencing, we adopt a starting point of eight years, six months with a non-parole period of five years. The non-parole period is a greater proportion of the head sentence than that chosen by the sentencing Judge. That is appropriate given the absence of remorse, the failure of the applicant to explain his possession of the knife and the need to be cautious about the applicant’s prospects of rehabilitation. We reduce both the head sentence and non‑parole period by four months and 13 days for time spent in custody and on home detention bail.

Ratio Decidendi

Legal Principle Established

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