R v McCarthy (No 2)

The applicant, R v McCarthy, sought leave to appeal against a sentence imposed by the Supreme Court of South Australia. The dispute arose from the applicant's conviction for manslaughter following a violent confrontation with the deceased, Mr Varehov, in a garage. The applicant argued that the sentence was manifestly excessive, that the sentencing judge failed to adequately consider the jury's verdict of not guilty to murder and the applicant's actions in self-defence during a home invasion, and that the judge erred in refusing to find special reasons to lower the mandatory non-parole period.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge erred in his assessment of the sentence, particularly in relation to the grounds of appeal raised by the applicant. Specifically, the court had to determine if the sentence was manifestly excessive, if the judge adequately considered the jury's verdict and the element of self-defence, and if special reasons existed to depart from the mandatory non-parole period.

The Full Court rejected the applicant's contention that the sentence was manifestly excessive, finding no error in the judge's consideration of factors such as previous convictions, remorse, deterrence, and hardship. The court also found that the sentencing judge had adequately considered the applicant's position, acknowledging the difficult circumstances in which the applicant initially found himself and the mitigating effect of the deceased's conduct. However, the court held that these factors, while acknowledged, did not amount to "special reasons" sufficient to lower the mandatory non-parole period as required by s 32A(3) of the Sentencing Act. The court concluded that the judge correctly directed himself on the law and that the applicant's cooperation during the trial process was not sufficient to enliven the discretion to order a non-parole period less than the statutory minimum.

Permission to appeal was refused on all grounds.