R v Maroroa

The Director of Public Prosecutions, as the appellant, sought permission to appeal against a sentence imposed on the respondent for a homicide offence. The appeal was based on two grounds: first, that the sentence was manifestly inadequate, and second, that the sentencing judge erred in finding special reasons to impose a non-parole period of less than four-fifths of the head sentence. The case was heard by Kelly, Peek, and Nicholson JJ.

The central legal issues before the court were whether the imposed sentence was demonstrably too lenient and, more significantly, whether the sentencing judge had correctly applied the provisions of the *Sentencing Act 2017* (SA) regarding the mandatory minimum non-parole period for serious offences against the person. This involved determining if the judge had properly considered the "matters of mitigation" required to justify a non-parole period below the statutory four-fifths threshold.

Kelly J, in her reasons, agreed that the sentence was not manifestly inadequate but found an error in the sentencing judge's determination of special reasons for a reduced non-parole period. She concluded that the respondent had not discharged the onus of proving such mitigating circumstances as required by the *Sentencing Act*. Consequently, she would have granted permission to appeal on the second ground and imposed a non-parole period of seven years, two months, and 11 days, representing four-fifths of the head sentence. Peek J agreed with Kelly J that the sentence was not manifestly inadequate but expressed some reservations about specific factual inferences drawn by Kelly J. Peek J also agreed that there was an error in the sentencing judge's consideration of the respondent's evidence regarding mitigation, which failed to meet the statutory requirements. However, Peek J ultimately refused permission to appeal on both grounds, suggesting the error could be addressed without a full appeal. Nicholson J agreed with Kelly J's analysis of principle and her refusal of permission on the first ground. While acknowledging the difficulty of the second ground, Nicholson J also agreed that the head sentence was substantial and that the non-parole period, save for the mandatory requirement, adequately addressed the sentencing considerations. Nicholson J ultimately agreed with Peek J's conclusion to refuse permission on both grounds.

The majority decision was to refuse permission to appeal on the first ground, that the sentence was manifestly inadequate. On the second ground, concerning the non-parole period, Peek and Nicholson JJ agreed to refuse permission to appeal, differing from Kelly J's view that the appeal should be allowed. Therefore, the outcome was that permission to appeal was refused on both grounds.