R v Brady

The appeal concerned a sentencing decision made by a District Court Judge in South Australia. The appellant, R v Brady, had been convicted of assault and aggravated causing harm with intent to cause harm. These offences constituted a breach of parole for a previous life sentence for murder. The sentencing judge declared the appellant a serious repeat offender and imposed a sentence of six years imprisonment for the new offences, declining to fix a non-parole period and requiring the appellant to apply to the Supreme Court for this purpose, following the principles in *R v Armstrong*.

The legal issues before the appellate court were whether the sentencing judge erred in declaring the appellant a serious repeat offender, particularly in light of the reactivation of his previous life sentence. The court was also asked to consider whether the declaration was futile, the applicability of specific provisions of the *Sentencing Act* to the total sentence to be served following a parole breach, whether the declaration fettered the discretion of the Supreme Court in fixing a new non-parole period, and whether the sentence imposed was manifestly excessive, especially in light of recent amendments to the *Sentencing Act*.

The appellate court held that the sentencing judge had correctly applied section 20B(1) of the *Sentencing Act* to declare the appellant a serious repeat offender. While acknowledging that such a declaration might have less relevance when a person is liable to serve the balance of a life sentence, the court found that it still enabled the imposition of a disproportionate sentence for the breaching offences. The declaration was found to fetter the discretion of the judge who fixes the non-parole period for the total sentence, requiring adherence to section 20B(4)(b), which mandates that the new non-parole period be no less than four-fifths of the head sentence for the breaching offences. The court found no error in the sentencing judge's approach, nor that the sentence was manifestly excessive, and therefore dismissed the appeal.