R v Saunders

(2011) 210 A Crim R 1; [2011] SASCFC 37

South Australia Full Court

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal and New Trial
3. › Appeal against Sentence
4. › Appeals by Crown
5. › Principles applied by appellate court to Crown appeals
6. › Permission to appeal
7. › Whether rare and exceptional case
8. › Criminal Law Consolidation Act 1935 (SA), ss 340, 352, 353
1. Criminal Law
2. › Sentence
3. › Sentencing Orders
4. › Serious repeat offender declaration
5. › Whether declaration forms part of sentence
6. › Whether declaration must be set aside when sentence quashed
7. › Criminal Law (Sentencing) Act 1988 (SA), s 20B
1. Criminal Law
2. › Sentence
3. › Sentencing Orders
4. › Non-parole period
5. › Mandatory minimum non-parole period for serious repeat offenders
6. › Whether four-fifths ratio applies to sentence for serious offences or total period of imprisonment
7. › Whether sentencing judge has discretion to fix non-parole period below four-fifths
8. › Criminal Law (Sentencing) Act 1988 (SA), ss 20B(4)(b), 32
1. Criminal Law
2. › Sentence
3. › Relevant Factors
4. › Time spent in custody
5. › Calculation of pre-sentence custody
6. › Whether time served on parole warrant can be credited twice

Quick Take

Section 20B(4)(b) of the Criminal Law (Sentencing) Act 1988 (SA) is mandatory: once a serious repeat offender declaration is made, the non-parole period must be at least four-fifths of the head sentence, with no residual discretion. The four-fifths ratio applies to the sentence for the serious offences alone, not to the total period of imprisonment including unexpired parole. Section 340 of the Criminal Law Consolidation Act 1935 (SA) removes the double jeopardy principle at the resentencing stage of a Crown appeal but does not affect the threshold for granting permission to appeal or allowing the appeal.