Mlakar v The King

In *Mlakar v The King*, the Full Court of the Supreme Court of South Australia considered an appeal against sentence. The appellant, who had pleaded guilty to an assault occasioning actual bodily harm, contended that the head sentence imposed by the sentencing judge was manifestly excessive. The appellant did not challenge the refusal to suspend the sentence or the denial of a home detention order.

The central legal issue before the Full Court was whether the sentencing judge erred in selecting a notional starting point for the head sentence that was 83 per cent of the maximum penalty. The appellant argued that this starting point was outside the available sentencing range, given the circumstances of the offence and the appellant's personal characteristics.

The Court acknowledged the gravity of the unprovoked, violent, and protracted assault, which occurred shortly after the death of the parties' infant child and while their young son was asleep in an adjacent room. The Court also noted the appellant's prior physical and verbal abuse, controlling behaviour, and his unfounded blame of the victim for their daughter's death. Despite these aggravating factors, the Full Court found that the notional starting point of 83 per cent of the maximum penalty was too high. The Court reasoned that while the offending was serious, the sentencing judge had not given sufficient weight to mitigating factors, including the appellant's age, limited education, and his subsequent efforts to engage in employment. Consequently, the Full Court allowed the appeal, reducing the head sentence.