R v Domarecki

This matter concerned an appeal against sentence brought by the applicant, R v Domarecki, before the Full Court of the Supreme Court of South Australia. The applicant had been convicted of offences including driving whilst disqualified and causing harm with intent. The sentencing judge imposed an immediate custodial sentence, which the applicant argued was manifestly excessive and that the sentence should have been suspended.

The central legal issues before the Full Court were whether the sentencing judge had erred in imposing an immediate custodial sentence and in failing to suspend that sentence. The Court was required to consider whether the sentencing judge had made any specific error of principle, mistaken facts, failed to consider material matters, or if the resulting sentence was unreasonable or plainly unjust, particularly in relation to the applicant's mental health condition and the potential impact of imprisonment on his rehabilitation.

The Court applied the principles established in *House v The King* and *Markarian v The Queen*, which guide appeals against sentence. It noted that intervention on appeal is warranted only if specific error is demonstrated or if the sentence is manifestly excessive. While acknowledging the applicant's history of psychological sequelae stemming from a past assault, which contributed to a diagnosis of chronic post-traumatic stress disorder, the Court found that the evidence did not meet the threshold required to establish that imprisonment would be unduly harsh due to ill health or disability under section 38(2c) of the *Sentencing Act*. The Court also considered the applicant's argument that his mental condition justified leniency, but ultimately concluded that the offending conduct was extremely serious and required a significant deterrent effect, deeming the applicant's response to a perceived threat to be grossly excessive and inappropriate.

The application for permission to appeal was dismissed. The Court agreed that the sentencing judge had not erred in imposing the sentence or in failing to suspend it, and therefore the appeal was unsuccessful.