Power v The Queen

The applicant, Power, sought to appeal against a non-parole period of 22 months fixed by a sentencing judge. The appeal was heard by the Full Court of the Supreme Court of South Australia, which granted permission to appeal and allowed the appeal, setting aside the original non-parole period and fixing a new period of 13 months.

The central legal issue before the Court was whether the original non-parole period of 22 months was manifestly excessive, disproportionate to the applicant's breaches of parole and head sentence, and whether it adequately considered the need for support upon release. The applicant contended that the sentencing judge erred by not taking into account various relevant matters when fixing the non-parole period.

The Court applied the principles established in *R v Roberts* and *R v Palmer* regarding the fixing of non-parole periods. These principles dictate that the purpose of a non-parole period is to determine the optimal time for rehabilitation, with relatively more weight given to this aspect. The exercise of discretion involves balancing punitive and protective purposes against rehabilitation prospects, informed by factors such as antecedents, previous responses to corrections, contrition, and capacity to overcome criminogenic factors. Crucially, when parole has been breached, the court must also consider the gravity of the breaching conduct, as this can adversely affect rehabilitation prospects and necessitate deterrence. However, these considerations are factors to be weighed in the overall sentencing discretion. The Court found that the 22-month non-parole period was manifestly excessive in light of these principles and the applicant's circumstances, including his difficult personal history, intellectual disability, and expressed desire for rehabilitation.