R v MCKAY

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, who had been found guilty of trafficking methylamphetamine. At the time of this offence, the respondent was subject to a suspended custodial sentence for prior convictions of possessing controlled substances for sale. The sentencing judge revoked the suspended sentence, which was for three years and six months with a two-year non-parole period, and imposed a new sentence of two years to be served cumulatively. This resulted in a total sentence of five years imprisonment with a non-parole period of 18 months. The Director contended that the 18-month non-parole period was manifestly inadequate and disproportionate, and that the sentencing judge erred in principle by failing to review and extend the non-parole period attached to the revoked suspended sentence.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the 18-month non-parole period was manifestly inadequate and whether the sentencing judge had committed an error of sentencing principle. The respondent argued that the sentence was appropriate given the offending was primarily for personal use and isolated, and therefore not manifestly inadequate, even if lenient.

The Full Court, comprising Kelly, Gray, and David JJ, granted permission to appeal and allowed the appeal, setting aside the sentence. The Court held that under section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA), a sentencing judge's only option upon revoking a suspended sentence is to review and extend the associated non-parole period, unless special circumstances exist under section 58(4) of the Act. The Court found that the issue of special circumstances had not been properly canvassed or considered by the sentencing judge, who appeared to have mistakenly believed he could impose a lower non-parole period. Consequently, the matter was remitted for resentencing.