R v Saunders - [2011] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SAUNDERS
[2011] SASCFC 37
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
29 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Permission to appeal against sentence by the Director of Public Prosecutions - defendant pleaded guilty to one count of aggravated robbery and two counts of aggravated causing serious harm with intent to cause serious harm - where Judge declared the defendant a serious repeat offender - where defendant was sentenced to a head sentence of 12 years’ imprisonment which was reduced by two years and 17 days on account of time spent in custody - where unexpired balance of sentence for which defendant had been on parole, taken into account - where Judge fixed a non-parole period of eight years - whether Judge proceeded under a misapprehension of fact as to the time the defendant had spent in custody - whether Judge misapplied the statutory provisions applicable to sentencing a serious repeat offender.
Principles regarding applications by the Director of Public Prosecutions for permission to appeal against sentence discussed - Court’s powers and duties on appeal against sentence discussed.
Held: Permission to appeal against sentence granted - appeal allowed - sentence imposed by Judge set aside - defendant resentenced.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 137(1), s 340, s 352 and s 353; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 20A, s 20B, s 20C, s 23, s 32 and s 32A; Sentencing Act 1995 (WA) s 98; Habitual Criminals Act 1957 (NSW) s 4(1) and s 6; Correctional Services Act 1982 (SA) s 74 and s 75; Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009 (SA) s 10, referred to.
Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Drewett (1983) 35 SASR 344; R v Mangelsdorf (1995) 66 SASR 60; R v Elliott (2001) 121 A Crim R 254; R v Ivic [2006] SASC 8; R v Robinson [2004] SASC 189; R v Meers (1998) 101 A Crim R 329; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Curtis (No 2) (2009) 105 SASR 411; R v Williams (2006) 96 SASR 226; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2005) 224 CLR 1; R v Ainsworth (2008) 100 SASR 238; R v Pottage [2010] SASCFC 75; R v Dundovic (2008) 101 SASR 32; R v Cattell [2010] SASCFC 18; R v Slater (1984) 36 SASR 524; R v Wilson (2010) 106 SASR 502; R v Abdulla [2011] SASCFC 20, considered.

R v SAUNDERS
[2011] SASCFC 37
Court of Criminal Appeal: Gray, Vanstone and White JJ
GRAY J:

This is an application for permission to appeal against sentence by the Director of Public Prosecutions.
Introduction
The defendant and respondent, Joseph Michael Saunders, was charged on information with three offences arising out of an incident that occurred on 29 October 2008 in suburban Adelaide. The offences were aggravated robbery contrary to section 137(1) of the Criminal Law Consolidation Act and two counts of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act.[1] The defendant pleaded guilty to each offence.
At about 7:20 am on the morning of 29 October 2008, the defendant was in the front car park of a business on Grand Junction Road, Ottoway, armed with a machete. He intended to commit a robbery. An employee of the business opened the door and asked if he could help the defendant. The defendant entered and struck the employee to his face with the machete. The defendant demanded that the till be opened. He was swearing, yelling, making gruesome threats and waving the machete at another employee. He demanded that the he be given money from the safe. He threatened to decapitate the employee. As this employee began to walk to a back room, the defendant struck him in the back with the machete. The defendant left with about $15,000.00 in cash.
The defendant’s offending was serious. The victims have suffered serious injuries. Victim impact statements attest to the ongoing effects. At the time of sentencing both were receiving ongoing treatment. As the sentencing Judge observed, the attack was “brutal, callous, violent and unnecessary”. Both victims have suffered major injuries with severe long term consequences.
The sentencing Judge, having regard to the defendant’s criminal antecedents, declared the defendant a serious repeat offender. This declaration enlivened particular sentencing powers.
The Judge proceeded under section 18A of the Criminal Law (Sentencing Act) 1988 (SA) to impose one sentence for the three offences. He commenced with a notional sentence of 14 years and made a reduction of two years for what he described as the utility of belated pleas of guilty. He then made a reduction of two years and 17 days on account of time spent in custody, reducing the head sentence to nine years, 11 months and 13 days.
At the time of the offending, the defendant was on parole and as a consequence of his convictions for the offences committed on 29 October 2008, he became liable to serve the balance of the prior sentence, a period of two years, seven months and 20 days. This resulted in a total period of imprisonment of 12 years, seven months and three days. The Judge fixed a non-parole period of eight years in respect of that sentence.
The Judge concluded his sentencing remarks as follows:
In all the circumstances according to ordinary sentencing principle, the court considers one single penalty for these three closely related and particularly serious offences of 12 years to be appropriate, reduced from 14 years on account of the utility of the belated pleas of guilty. That is reduced by two years and 17 days on account of the time spent in custody, to one of nine years, 11 months and 13 days.
When it comes to fixing a non-parole period, the court must consider the total aggregate head sentence which is now one of 12 years, seven months and three days. As mentioned, the present signs of reform are not promising. The courts have offered you clemency in the past. There have been failed attempts at treatment and counselling. As time goes on, a deterrent sentence such as this one is either going to achieve that end so that it would be safer to release you into the community, or if it does not, the community would be better protected by strict supervision on parole for as long as possible. Particularly bearing in mind that you have already served just over two years in custody, an appropriate non-parole period is one of eight years. That sentence must commence from today.
The application for permission to appeal raises a number of important issues for consideration.
Powers and duties of the appeal court
Pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act the Director may appeal against a sentence with the permission of the Full Court. The question of the grant of permission to appeal is a distinct one, to be decided separately from the question of the substantive appeal itself.[2] Permission to appeal should only be granted to the Director in rare and exceptional cases.[3]
The principles regarding applications by the Director for permission to appeal against sentence are settled. The Director will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual Judges as to particular crimes or types of crimes to be corrected, or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”. If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[4]
Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[5]
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[footnote omitted]
Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[6]
The basis for the ‘rare and exceptional’ test for granting leave to appeal to the Director, lies with the principle of double jeopardy; that is, the exposure to the risk of having a sentence increased, and in particular to the risk of facing a sentence of imprisonment on appeal for the first time.[7]
The principle of double jeopardy has historically been taken into account by an appeal Court in all stages of the appeal process in relation to an appeal against sentence by the Director of Public Prosecutions. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted,[8] and whether an appeal should be allowed,[9] as well as when considering the sentence to be imposed if that imposed at first instance is quashed and the Court is resentencing the offender.[10]
The court’s powers and duties on an appeal against sentence are set out in section 353 and section 340 of the Criminal Law Consolidation Act.
Section 353 relevantly provides:
Determination of appeals in ordinary cases
…
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340 of the Criminal Law Consolidation Act, was introduced by amendment on 3 August 2008. This section is to be considered in conjunction with section 353(4) of the Act. Section 340 provides:
Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)    will take effect on a date on or after the date of the order.
Notwithstanding its mandatory terms,[11] section 353(4)(a)(i) has been interpreted as still being subject to the application of the double jeopardy principle.[12] This has allowed the Court to resentence and impose a sentence which is in fact something less than or other than the sentence which the Court thinks ought to have been passed.[13]
The common law provides the Court, when resentencing, with the discretion to impose a different or lesser sentence than the sentence it thinks should have been imposed at first instance on a basis other than the principle of double jeopardy. This separate discretion is founded on notions of fairness or mercy.
On the hearing of the appeal, an issue arose regarding the effect, scope and interpretation of section 340 of the Criminal Law Consolidation Act, and in particular, its relationship to section 353(4) of the Act.
A purposive construction is the general approach to be taken to issues of statutory construction.[14] Further, it is settled that reference can be made to certain extrinsic materials in this inquiry, including second reading speeches.[15] The second reading speech relating to section 340 of the Criminal Law Consolidation Act, relevantly provides:[16]
Prosecution Appeals Against Sentence—Proposed Reform
The COAG Working Party concluded that although the courts have used the term 'double jeopardy' to describe the situation that a convicted person faces as a result of a prosecution appeal against sentence, the situation is different from the double-jeopardy faced by an acquitted person who again faces trial. An acquitted person who endures a retrial faces, for the second time, the prospect of being found guilty, whereas a convicted person enduring a prosecution appeal against sentence faces the less severe prospect that their sentence may be varied.
It is intolerable that prosecution appeals against sentence fail although the court is of the opinion that the sentence is inadequate. Although there can be no question of a court's micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.
This correction will not affect underlying principles that say:
that prosecution appeals against sentence should be rare;
that an appeal court will only intervene where error is shown; and
that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.
The second reading speech indicates that section 340 was designed to remove the issue of double jeopardy from consideration by the appeal Court. However, the words of the section make it clear that section 340 only imposes a duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
Section 340 precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The only substantive difference between sections 353(4)(a) and 340(a), is the inclusion of the words “Despite any other rule of law”. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[17] In my view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
If sections 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that section 340 has some work to do, that work, in my view, is to remove the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.
The Director’s Application
On the hearing of the application, the Director contended that the Judge had proceeded under a misapprehension of fact as to the time the defendant had spent in custody. It was further submitted that when fixing the non-parole period, the Judge had misapplied the statutory provisions applicable to sentencing a serious repeat offender.
The Judge misapprehended the length of time that the defendant had spent in custody. Counsel agreed that the appropriate reduction to be made for the time spent in custody was one year, nine months and 24 days and that in making the reduction of two years and 17 days, the Judge had erred. It was agreed that for this reason alone, both the head sentence and non-parole period required adjustment.
Further, it would appear that the sentencing Judge had regard to the decisions in Curtis (No 2)[18] and Williams[19] when considering the relevance of the defendant being a “serious repeat offender”:
Before deciding upon an appropriate sentence, the court is required to consider whether your history of offending warrants a particularly severe sentence in order to protect the community. Your prospects of rehabilitation at the present time do not appear to be that good at all. The escalating nature of the violence you are prepared to inflict on innocent citizens by using dangerous weapons, has grown to the point that it is appropriate to declare that you are a serious repeat offender, which I now do.
Having made the above declaration, the Judge then continued:
The court retains a discretion as to whether or not the power to fix a non-parole period for at least four-fifths of the head sentence should be utilised. …
However, the Judge misunderstood the effect of the decisions referred to above. The discretion referred to in Curtis (No 2)[20] and Williams[21] was a discretion as to a head sentence. The observations in those authorities were not directed to the mandated obligation of the sentencing court to fix a non-parole period of at least four-fifths of the head sentence. Counsel for the defendant accepted that the Judge had erred in this respect.
Having regard to the errors of fact and law, permission should be granted, the appeal allowed and the defendant resentenced.
Serious Repeat Offender
Section 20B of the Sentencing Act provides that a person is liable to be declared a serious repeat offender if a number of conditions are met. That section relevantly provides:
Declaration that person is serious repeat offender
(1)A person is liable to be declared a serious repeat offender if the following conditions apply:
(a)     the person (whether as an adult or as a youth)—
(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and
(ii)    has been convicted of those offences; or
(b)     the person (whether as an adult or as a youth)—
(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and
(ii)    has been convicted of those offences.
(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a)     must consider whether to make such a declaration; and
(b)if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(4)If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)any non-parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.

A “serious offence” is defined in section 20A as:[22]
serious offence means—
(a)     a serious drug offence; or
(ab)an offence against a law of the Commonwealth dealing with the unlawful importation of drugs into Australia; or
(b)     one of the following offences:
(i) an offence under Part 3 of the Criminal Law Consolidation Act 1935;
(ii)    an offence of robbery or aggravated robbery;
(iii)     home invasion;
(iv)     an offence of damage to property by fire or explosives;
(v)     an offence of causing a bushfire;
(vi)an offence against a corresponding previous enactment substantially similar to an offence referred to in any of the preceding subparagraphs;
(vii)a conspiracy to commit, or an attempt to commit, an offence referred to in any of the preceding subparagraphs; or
Note—
A person who acts as an accessary to the commission of an offence described in paragraph (b) is, by virtue of section 267 of the Criminal Law Consolidation Act 1935, guilty of the principal offence and has, therefore, committed a serious offence.
(c)an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or for the purpose of escaping from the scene of the offence; or
(d)an offence against the law of another State or a Territory that would, if committed in this State, be a serious offence;
In Curtis (No 2),[23] I set out the history to section 20B. I incorporate those observations by reference as part of these reasons. When addressing the effect of a declaration on the fixing of a head sentence, I observed:[24]
The terms of the section are unambiguous – if the statutory preconditions are strictly met, and if the court is of the opinion that the protection of the community warrants a longer than proportionate sentence, there is an absolute discretion in fixing that sentence. It is my view that the discretion is unfettered. It is to be observed that the power to order a declaration is only to be utilised if the court is of the opinion that a particularly severe sentence is necessary in order to protect the community from the offender. Although it may only be in rare cases that such a severe sentence is warranted, the discretion is not so confined. Once the matters in the section are satisfied, the court is not bound to ensure that the principle of proportionality are complied with and may fix the sentence it considers appropriate.
Several potentially relevant factors to be considered in the exercise of the discretion were outlined by Sulan J in Williams:
Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.
…
In my view, the community will be better protected if the defendant is successfully treated. To order that the defendant be kept in custody for a longer period would not, in my view, ultimately result in better protection for the community. It has not been demonstrated that a declaration pursuant to section 20B is required for the protection of the community, and I decline to make an order.
It is to be observed that these factors reflect the approach taken by the court previously under the habitual criminals scheme.
[footnotes omitted]
It is of particular relevance to the present proceeding to consider the statutory provision that addresses the fixing of a non-parole period and the mandated requirement that the Court fix a non-parole period of a minimum of four-fifths of the head sentence.
It is necessary to consider whether the declaration that the defendant is a serious repeat offender made by a sentencing Judge pursuant to section 20B, forms part of the sentence to be set aside.
In McGarry,[25] the Court was concerned with the making of an order of indefinite imprisonment pursuant to section 98 of the Sentencing Act 1995 (WA).[26]
The issue before the High Court was whether “it was … open to the Court of Criminal Appeal to dismiss the defendant’s appeal against the order for indefinite imprisonment that had been made by the primary judge. In particular, was it open to the Court of Criminal Appeal first, to be satisfied, on the balance of probabilities, that when the defendant would otherwise be released from custody in respect of the nominal term of three years' imprisonment which it fixed, he “would be a danger to society, or a part of it”, and, secondly, to be satisfied that an order for indefinite imprisonment should be made”.[27]
In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, in the allowing the appeal, their Honours relevantly observed:[28]
…S98(1) empowers a sentencing judge, if the relevant conditions are met, to "order the offender to be imprisoned indefinitely" and to do so "in addition to imposing the term of imprisonment for the offence". An order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment)….
The Criminal Code (WA) makes separate provision for appeals to the Court of Criminal Appeal against an order for indefinite imprisonment and against any other sentence. The former lies as of right; the latter lies only with the leave of the Court of Criminal Appeal. That might be thought to suggest that two appellate processes had been engaged in the present case - one concerning the order for indefinite imprisonment and the other concerning the nominal sentence. Even if that were so, it should not obscure the fact that the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision.
It follows that if an appellate court concludes that the sentencing judge's discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re-sentence the offender. As s689(3) of The Criminal Code provides, if the Court of Criminal Appeal "think that a different sentence should have been passed", the Court should "quash the sentence ... and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant ... stands convicted". The question would not be, as the Court of Criminal Appeal appears in this case to have thought it to be, whether it had been open to the sentencing judge to make the order for indefinite imprisonment which had been made. The sentencing discretion being shown to have miscarried, there was no occasion or need to consider whether it could be separately demonstrated that the sentencing judge's discretion to make an order for indefinite imprisonment had miscarried. It was for the Court of Criminal Appeal to pass such other sentence as ought to have been passed.
[emphasis in bold added. footnotes omitted.]
In Strong,[29] a subsequent High Court decision, the issue was whether the New South Wales Court of Criminal Appeal “erred in the disposition of the appeal against the pronouncement and sentence of the sentencing judge, made under the Habitual Criminals Act 1957 (NSW)…”.[30]
McHugh J considered that as a consequence of setting aside the sentence for the substantive offences of intimidation and stalking, the pronouncement that the defendant was a habitual criminal and the sentence made pursuant to the Habitual Criminals Act should also have been set aside.[31] The following observations, albeit obiter dicta, are persuasive and are relevant to the present proceeding:[32]
There is much to be said for the view that, when the sentence for the primary offence is set aside, the pronouncement is automatically set aside. But, independently of that consideration, the primary sentence and the pronouncement are so closely connected that, as a matter of principle, an appellate court that sets aside the primary sentence must also set aside the pronouncement and the mandatory sentence that follows it. There can be few, if any, cases where an appellate court, having concluded that an integer of a sentence has miscarried, can refuse to determine afresh the other integers of the sentence. That was the view of this Court in McGarry v The Queen where the Court had to consider a primary sentence and an indefinite sentence in legislation where separate provisions governed appeals in respect of each sentence. …[T]he Court held that, if the sentencing discretion in respect of the primary sentence miscarried, the term of indefinite imprisonment also miscarried. …
[footnotes omitted. emphasis added.]
McHugh J referred to the passages in McGarry extracted above and continued:[33]
It follows from the principle for which McGarry is an authority that the pronouncement that the appellant was an habitual criminal was part of the sentencing decision for which he was imprisoned. Consequently, when the Court of Criminal Appeal set aside the sentences for intimidation and stalking, it was required to set aside the pronouncement and determine afresh whether a pronouncement should be made. Setting aside and re-considering the pronouncement was no different in principle from the action of the Court of Criminal Appeal in setting aside the non-parole periods imposed by the District Court and imposing new non-parole periods for the primary offences.
[emphasis added.]
McHugh J further noted that “[i]t is the sentencing decision – not the individual sentences – that attracts the McGarry principle”.[34]
Kirby J, in Strong, considered the difference between the legislative provisions in McGarry which provided for indefinite detention, to that in Strong which provided for concurrent and consecutive sentences:[35]
…The Habitual Criminals Act does not provide for indefinite detention. It provides for concurrent and not consecutive sentences. It is enlivened by different considerations. However, what is common is the exceptional addition to the punishment normal to proved offences; the consequent risk of disproportion between the immediate crime and its punishment; and the added punishment "for the purpose of extending the protection of society from the recidivism of the offender".
[footnote omitted. emphasis added]
In the present proceeding, the purpose and consequences of making a declaration that the defendant is a serious repeat offender is to enliven subsection 20B(4) of the Sentencing Act, which relevantly provides:
If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)any non-parole period fixed in relation to the sentence must be at least four fifths the length of the sentence.
It is evident that section 20B also contains the common features referred to by Kirby J; that is, the exceptional addition to the normal punishment and what follows from that. In my view, the principle established in McGarry and applied by Kirby and McHugh JJ in Strong that the whole of the sentence, including an order for indefinite imprisonment or a pronouncement that the defendant is a habitual criminal is to be set aside, is applicable to the present proceeding. In the present proceeding, there is an inextricable link between the sentence and the declaration. As the sentence is to be quashed, the declaration should also be set aside.
Resentencing
The role of the court when resentencing needs to be addressed. Both section 340 and section 353(4) inform the role and obligations of this Court as earlier discussed. In setting aside the sentence imposed at first instance, the declaration that the defendant is a serious repeat offender is also to be set aside and the subject of reconsideration. Accordingly, it is necessary for the court to reconsider whether a declaration should be made. On the hearing of the appeal, counsel for the defendant did not oppose the making of such a declaration. This was an entirely appropriate concession. The criminal antecedents of the defendant enlivened the section 20B discretion and the case for making a declaration is overwhelming. As earlier discussed, the subject offending was very grave. I would make a section 20B declaration.
Turning to the sentence to be imposed by this Court, it is to be observed at the outset that the defendant’s offending was grave. The aggravated robbery offence alone could be expected, given the defendant’s antecedents, to attract a sentence in the range of six to eight years. The offences of aggravated causing serious harm with intent to cause serious harm involved separate victims being struck by a machete. The violence perpetrated was gratuitous. There was no suggestion that the defendant’s defenceless victims were doing other than complying with his demands. As earlier noted, each attack was brutal, callous and violent. The injuries inflicted were severe, leading in the case of each victim to long term consequences. Although the three offences all formed part of one incident, that fact in my mind does not militate against the seriousness of each offence.
The victim impact statements describe the injuries sustained. The victim who was struck in the face with the machete sustained a deep cut from his left ear to his mouth. He has had teeth replaced, and continues to suffer from some numbness to the side of the face. The injury caused long-term ongoing pain, and the victim needed his jaw and gums partly rebuilt surgically. The victim who was struck in the back by the machete, underwent surgery and will need further surgery on his shoulder. Since the attack, he has suffered anxiety and depression and continues to see a psychologist.
At the time of the offending, the defendant was in his mid-twenties. He had previous convictions for offences of violence both as a young offender and as an adult. He had been ordered to serve eight months detention as a young offender for the offence of assault occasioning actual bodily harm and, more recently, to serve eight years imprisonment as an adult offender for a number of offences including offences of violence. He was on parole with respect to this eight year sentence when the present offending occurred.
The defendant’s background exposed him to violence. He did not progress well at school and, as a youth, was involved with alcohol and drug abuse and associated criminal activity. His prior offending included the use of knives and a tomahawk. It appears that the circumstances giving rise to the present offending lay in the defendant’s antisocial personality disorder aggravated by the abuse of amphetamines and alcohol.
The defendant’s prospects for rehabilitation are poor. He has a history of engaging in criminal activity of an escalating nature involving violence through the use of dangerous weapons on innocent citizens. The defendant poses a risk to the community.
A further aggravating feature of the defendant’s criminal conduct is that at the time of the offending, the defendant was on parole in respect of offending as earlier set out.
In my view, an appropriate starting point in respect of the three offences is a notional head sentence of 16 years imprisonment. In arriving at this notional head sentence, I have had regard to the circumstances of the offending, the personal and criminal antecedents of the defendant, the impact of the crime on his victims and the risk that the defendant poses to the community.
The defendant’s pleas of guilty came on the eve of trial. I would make a reduction of one year on account of the pleas. This leads to a reduced provisional head sentence of 15 years. I consider that a provisional non-parole period of 12 years to be appropriate. This equates to a proportion of four-fifths. For reasons to be discussed, further adjustment to these provisional periods is necessary.
It is necessary to bring to account the time spent in custody. It is not possible in the circumstances of this case to backdate the sentence for this offending as it is to be served cumulatively on the unexpired balance of his previous sentence, the subject of his breach of parole. The time spent in custody that needs to be brought to account, I treat as a period of one year and 10 months. Accordingly, the head sentence to be served in respect of the subject offending should be reduced to 13 years and two months with a non-parole period of 10 years and two months.
As earlier observed, the subject offending occurred whilst the defendant was on parole. The unexpired balance of the non-parole period is a term of two years, seven months and 20 days. Section 75 of the Correctional Services Act 1982 (SA) requires this Court to order that the unexpired balance of the previous term of imprisonment be served first and the sentence imposed for the subject offending be cumulative on the expiration of that sentence. As a consequence the defendant faces a total period of imprisonment of 15 years, nine months and 20 days. The Court is required to fix a non-parole period in respect to this total period of imprisonment. I would fix a non-parole period of 11 years and 10 months.
It is to be noted that the Director did not, subject to the adjustments to be made with respect to the time spent in prison, challenge the head sentence imposed by the Judge. The challenge related to the non-parole period imposed. Having regard to the serious repeat offender declaration, the seriousness of the violence perpetrated by the defendant, and the need to protect the community, I consider the sentence that I have proposed is that which should have been imposed at first instance.
Having determined a total period of imprisonment and having determined the non-parole period to apply to that term, I have considered the application of the principle of totality. The defendant is still a relatively young man. If the total period of imprisonment identified above is to be served, he will not be released until his early forties. It is the overall term in these circumstances that is to be considered against the principle of totality. In my opinion, there is no basis, having regard to the severity of the defendant’s offending, his antecedents and the making of the section 20B declaration, to conclude that the sentence is crushing. I would not make any reduction to the proposed sentence on account of the principle of totality. In my view, the protection of the community is of significant importance.
Conclusion
I would grant the Director permission to appeal against sentence. I would allow the appeal. I would set aside the sentence imposed by the sentencing Judge.
I would make a declaration that the defendant is a serious repeat offender. I would resentence the defendant with respect to the offence of aggravated robbery and the two offences of aggravated causing serious harm with intent to cause serious harm to the one sentence pursuant to section 18A of the Sentencing Act to a term of imprisonment of 13 years and two months.
I would direct that that sentence be served cumulatively on the unexpired balance of the defendant’s previous sentence, that unexpired balance being a period of two years, seven months and 20 days. As a consequence of the terms of section 75 of the Correctional Services Act, that sentence is to commence on the day of sentencing, which I would fix to be the date when the defendant was first sentenced; 16 November 2010.
In respect of the total period of imprisonment faced by the defendant of 15 years, nine months and 20 days, I would fix a non-parole period of 11 years and 10 months, that period to commence on the same date; 16 November 2010.
VANSTONE J:
Introduction

The respondent was sentenced to imprisonment for twelve years for two serious offences of violence committed in the course of robbing the victims at the point of a machete. The judge was obliged to take into account some time spent in custody on remand prior to sentence and also to fix a non-parole period in relation to the new head sentence together with a period of unexpired parole. A non-parole period of eight years was fixed in respect of the final head sentence of twelve years, seven months and three days.
The Director of Public Prosecutions seeks permission to appeal, arguing that there was an error in computation of the time in custody and that the non-parole period is manifestly inadequate.
Background
The three offences occurred at the premises of a scrap metal business at Ottoway. Early one morning the respondent entered the shopfront of the business. Prior to making any demand he struck one of the employees in the head with a machete. That person fell to the ground. The respondent then began to demand money from a second employee behind the counter. Having been given cash, the respondent threatened to chop off the second man’s head if he were not given money from the safe. While that man complied with the demand the respondent struck him from behind with the machete. Both men were seriously injured and much traumatised by the attacks. In respect of each assault the respondent pleaded guilty to aggravated causing serious harm with intent to cause serious harm. More than $15,000 was taken by the respondent. He pleaded guilty to aggravated robbery.
At the time of these offences the respondent was just short of 26 years of age. He was sentenced some two years later. The delay was, in part, attributable to the matter being set down for trial and the pleas of guilty being entered on the day of trial. He is now 28 years of age. He has a serious record of prior offending dating back to 1998. He was on parole at the time of these offences. Included in that record were several offences on the basis of which the judge made a declaration that the respondent was a “serious repeat offender”, pursuant to s 20B of the Criminal Law (Sentencing) Act 1988. That meant that the court was not bound to ensure that the sentence imposed was proportional to the offending and the non-parole period to be fixed had to be at least four-fifths of the head sentence: s 20B(4). No complaint is now made about that order.
Analysis
I have had the benefit of reading in draft the reasons of Gray J and White J. I propose to deal with the issues raised by this appeal quite briefly.
It is apparent that the sentencing judge made an error in respect of the time in custody for which the respondent had to be credited. It appears that it was an error in the respondent’s favour to the extent of two months and 23 days. This is a matter which could have been raised with the sentencing judge and corrected after the sentence was imposed, utilising s 9A of the Sentencing Act. I would not have granted permission to appeal on this basis alone. The other error complained of is that the sentencing judge took the view that notwithstanding s 20B of the Sentencing Act, he retained a discretion not to fix a non-parole period of at least four-fifths of the head sentence. This was plainly wrong and has led to the imposition of a non-parole period which in my view is manifestly inadequate.
I consider that the head sentence was also manifestly inadequate. These were three serious crimes. The robbery offence carried with it a maximum sentence of life imprisonment and the causing serious harm with intent offences, which were aggravated, attracted maximum sentences of 25 years imprisonment. Notwithstanding that the Director of Public Prosecutions made no complaint about the starting point selected by the sentencing judge, or about the discount given for the pleas of guilty, I consider that the head sentence referable to these crimes was simply too low.
In his reasons for judgment, Gray J has addressed the operation of the relatively new s 340 of the Criminal Law Consolidation Act 1935. In another matter heard in these sessions I have expressed my views about that section: R v Abdulla [2011] SASCFC 20. In the course I have determined upon in the current matter, the section has no particular impact and therefore it is unnecessary for me to repeat those views.
The other members of the Court have addressed the question of to what head sentence the mandatory ratio of four-fifths is to be applied. I consider that, plainly, it must be applied to the sentence imposed for the crimes under consideration, but not to the period of unexpired parole.
I agree that the declaration made by the judge that the respondent was a serious repeat offender is properly to be considered as part of the sentence imposed. As I mentioned, no complaint is made about that declaration and it is uncontroversial that it should either be allowed to stand, or be made afresh.
It will be noted that my treatment of the time in custody for which the respondent had to be given credit is different from the method employed by White J. Were the Court able to backdate the new sentence to take into account time spent in custody, then the respondent would receive a greater benefit for that period in terms of the application of the four-fifths ratio, than if time were to be simply deducted after the new head sentence and non-parole period was fixed. Section 20B of the Sentencing Act requires that the non-parole period fixed must be “at least four-fifths of the length of the sentence”. In my view, for this purpose, the sentence can be considered to be the sentence arrived at before time in custody is deducted. I do not see any impediment, in terms of the legislation, in approaching the matter in this way. That seems to me to put the prisoner in the same position as would backdating the sentence.
New sentence
I would approach the re-sentencing in this way. I would grant permission to appeal and allow the appeal. I would set aside the sentence imposed, apart from the declaration that the respondent is a serious repeat offender.
The new sentence will be cumulative upon the balance of the sentence for which the respondent was on parole, but I deal first with the new sentence.
In respect of the three offences the subject of the appeal I would utilise s 18A of the Sentencing Act and take a starting point of 16 years imprisonment. I would allow only one years credit for the pleas of guilty, since they were entered on the day of trial. The effective head sentence in relation to the new sentences would therefore be 15 years imprisonment. Applying the factor of four-fifths gives a notional non-parole period of 12 years. In obedience to s 20B of the Sentencing Act the final non-parole period may not be less than that period, before time in custody is taken into account. I do not consider that a higher proportion is called for.
From both that head sentence (15 years) and the notional non-parole period (12 years) I would then deduct a period of one year and 10 months on account of time spent in custody. That gives a head sentence of 13 years and two months and a non-parole period of 10 years and two months.
That head sentence must be added to the period of unexpired parole, being two years, seven months and 20 days, giving a head sentence of 15 years, nine months and 20 days. To the provisional non-parole period of 10 years and two months I would add one year and eight months as an appropriate period referable to the unexpired balance of parole.
The result is that the total of the head sentence to be served is 15 years, nine months and 20 days and the non-parole period fixed in relation to the total head sentence and the unexpired balance is 11 years and 10 months.
Conclusion
I would make the following orders:
1. grant permission to appeal;
2. allow the appeal;
3.affirm the declaration that the respondent is a serious repeat offender but otherwise set aside the sentence;
4.impose in its place a single sentence of 13 years and two months imprisonment to be served cumulatively upon the unexpired balance of parole;
5.in respect of the total sentence to be served of 15 years, nine months and 20 days impose a non-parole period of 11 years and 10 months;
6.that the sentence is to be taken to have commenced on 16 November 2010.
WHITE J. The respondent was sentenced in the District Court for one offence of aggravated robbery[36] and for two offences of aggravated causing harm with intent to cause serious harm,[37] all of which were committed on 29 October 2008 when he was on parole.
Before imposing the sentence, the Judge made a declaration under s 20B(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) that the respondent is a serious repeat offender.[38]
The Judge imposed a single sentence under s 18A of the Sentencing Act. He took as his starting point a sentence of imprisonment for 14 years. The Judge reduced that starting point to 12 years on account of the respondent’s pleas of guilty and by a further period of two years and 17 days on account of time which the respondent has spent in custody. This resulted in a sentence of nine years, 11 months and 13 days.
The Judge added to that sentence the unexpired period of the sentence in respect of which the respondent had been on parole, namely, two years, seven months and 20 days, to reach what he described as “the total aggregate head sentence” of 12 years, seven months and three days. He then fixed a non‑parole period of eight years.
The Director of Public Prosecutions seeks permission to appeal against the sentence. There are two grounds of appeal. First, that the Judge erred in the deduction he made on account of the time which the respondent had already served in custody. Secondly, the Director contended that the non‑parole period had not been fixed in the manner required by s 20B(4)(b) of the Sentencing Act and was manifestly inadequate.
Background
The respondent is now 28 years of age.
On 29 October 2008, at about 7.30am, the respondent went to a business at Ottoway. While in the office building, he struck one of the employees using a machete which he had carried in his backpack. The blow was to the left side of the victim’s face, and caused a severe and deep cut extending from the upper lip to the left earlobe. The cut involved all the layers of the victim’s skin, tendons and muscle mass and included the severance of many of his teeth. The victim’s surgeon described the wound as a “cleaving apart” of the left side of the victim’s face. It could easily have been fatal.
The respondent then used the machete to menace a second employee. He repeatedly demanded money from the safe and backed up his demands with threats to harm the employee. As this employee had witnessed the blow to his workmate, the threats engendered considerable fear. When he went to get the money, the respondent struck him on the right shoulder with the machete, fracturing the right acromion and scapula. Despite this, the second victim was able to comply with the respondent’s demands and the respondent took more than $15,000.
The assaults were vicious, brutal and gratuitous. They were also cowardly as both men were struck from behind. The respondent caused very serious injuries with both his victims, especially the first, suffering long‑term physical and psychological consequences.
The robberies appear to have been motivated by the respondent’s desire to obtain cash which could be used in the purchase of illicit drugs.
The respondent is of at least average intelligence but left school at age 15 having failed to complete Year 9. He has never had paid employment.
The respondent has a poor criminal history. As a youth, he had five convictions for assault occasioning actual bodily harm and three convictions for common assault (this is in addition to one appearance in the Youth Court for the offence of common assault for which no conviction was recorded).
On 1 October 2004, the respondent was sentenced in the District Court for a number of offences including two offences of common assault, one offence of aggravated robbery, one offence of theft, and two offences of aggravated serious criminal trespass. Those offences had all been committed on 11 September 2003 but in three separate incidents. The respondent was sentenced to imprisonment for eight years with a non‑parole period of four years. That sentence was backdated to the date upon which the respondent was taken into custody. The respondent was on parole in respect of this sentence when he committed the subject offences.
In addition to the offences just outlined, the respondent has numerous convictions and other court appearances for offences of dishonesty and traffic offences.
Errors in the Reduction for Time Served
The Judge did make an error in fixing the head sentence by the period which he deducted on account of the time already served by the respondent in custody.
The respondent was arrested on 30 October 2008. From that date until 22 January 2009 he was held in custody pursuant to a warrant issued by the Parole Board under s 74 of the Correctional Services Act 1982 (SA) (CSA) following various breaches of his parole. This was a period of two months and 23 days. It was only on 23 January 2009 that the respondent commenced serving time in custody in respect of the subject offences.
The Parole Board took the period of two months and 23 days served between 30 October 2008 and 22 January 2009 into account when calculating the unexpired portion of the sentence imposed in the District Court on 1 October 2004. Accordingly, it could not be taken into account a second time so as to reduce the sentence for the subject offences. However, the Judge allowed a reduction for time served for the whole of the period between 30 October 2008 and 16 November 2010. The respondent has thereby twice been given credit for this period of two months and 23 days.
The respondent conceded that the Judge had erred in this respect. The error affects both the head sentence and the non‑parole period.
Error in Fixing the Non‑parole Period
The Judge considered that he had a discretion under s 20B of the Sentencing Act to fix a non‑parole period of less than four‑fifths of the head sentence. Having made the declaration that the respondent is a serious repeat offender, the Judge said:
The Court retains a discretion as to whether or not the power to fix a non‑parole period of at least four-fifths of the head sentence should be utilised.
The Judge then went on to address a variety of matters affecting the exercise of the discretion which he had thereby identified.
In written copies of his sentencing remarks provided to counsel when he sentenced the respondent, the Judge referred to [71] of the judgment of Sulan J in R v Williams[39] and to [41] in the judgment of Gray J in R v Curtis (No 2)[40] as authorities for the proposition that a court has a discretion as to whether or not to fix a non‑parole period of at least four‑fifths of the head sentence. With respect to the Judge, these paragraphs are not authorities for the existence of such a discretion under s 20B. In R v Williams, Sulan J was referring only to the discretionary judgment involved in the making of a declaration under s 20B. In R v Curtis (No 2), Gray J was referring only to the discretionary judgment involved in the fixing of the head sentence once a declaration under s 20B has been made. Neither Judge was suggesting that, despite its plain terms, s 20B(4) vested the Court with a discretion with respect to the fixing of a non‑parole period of less than four‑fifths of the head sentence.
The question of whether s 32A of the Sentencing Act may be a source of a discretion (if special reasons of the kind to which s 32A(3) refer exist) in relation to the minimum non‑parole period prescribed by s 20B(4)(b) need not be considered in this case. Neither party suggested that s 32A should be invoked in the circumstances of this case or that, if invoked, it would have warranted a reduction in the mandatory minimum non‑parole period. In addition, it is plain that the Judge did not purport to exercise a discretion arising under s 32A.
The Judge’s belief that the Court had a discretion under s 20B(4) to fix a non‑parole period which is less than four‑fifths of the head sentence appears to have contributed to an error in his fixation of the non‑parole period. However, it is not necessary to address that issue. That is because the error in the reduction allowed for time spent in custody means by itself that the non‑parole period will have to be reconsidered.
Errors in the Recording of the Sentence
I note, in addition, that there are errors in the way in which the sentence imposed on the respondent is recorded on the endorsement on the Information and in the Report of Prisoner Tried. The substantive part of the endorsement is as follows:
HH declares Joseph Michael Saunders to be a serious repeat offender.
·       Unexpired parole of 2 years and 7 months and 20 days to be served cumulatively.
·       Head sentence: 12 years, 7 months and 3 days.
·       Non‑parole: 8 years.
·       VIC levy $910.
·       Sentence and non‑parole period to commence on 16 November 2010.
The substantive part of the Report of Prisoner Tried is as follows:
IMPRISONMENT – For 12 YEARS 7 MONTHS 3 DAYS commencing 16/11/10.
Unexpired parole of 2 YEARS, 7 MONTHS and 20 DAYS to be served cumulatively.
His Honour declares Joseph Michael Saunders to be a serious repeat offender, pursuant to s 20B of the Criminal Law (Sentencing) Act.
HEAD SENTENCE – 12 YEARS 7 MONTHS 3 DAYS commencing 16/11/10.
Non‑Parole Period – 8 YEARS Commencing 16/11/10.
Victims of Crime Act Levy imposed by Statute $910.
Neither the endorsement on the Information nor the Report of Prisoner Tried indicate that the actual sentence imposed on the respondent in respect of the three offences committed on 29 October 2008 was nine years, 11 months and 13 days. The period of 12 years, seven months and three days which is described as the “head sentence” was not a head sentence. It was the total period to be served in custody by the respondent, comprising the head sentence imposed by the Judge for the offences on 29 October 2008 and the unexpired portion of a previous sentence.[41]
Further, by the virtue of s 75(1) of the CSA, the respondent became liable to serve the unexpired portion of the previous sentence immediately.[42] The Judge should have directed that the sentence of nine years, 11 months and 13 days which he imposed was to commence immediately upon the respondent completing the sentence previously imposed in the District Court.
It is important that the formal orders of a court by which a person is held in custody be accurate. It is important for an offender, the courts, the Correctional Services Department and the Parole Board, amongst others, to be able to identify with some certainty the orders pursuant to which a person is held in custody and to know what sentence it is which a prisoner is serving at any one time.
The errors in the recording of the sentence could be corrected by the Judge himself, acting under s 9A of the Sentencing Act. They do not warrant a grant to the Director of permission to appeal.
Before considering whether the other errors do warrant such a grant of permission, I propose to consider first the re-sentencing which would be appropriate in this case.
The Approach to Re-sentencing
If the respondent is to be re-sentenced, a question arises as to the extent of the re-sentencing required. Is the Court limited to those aspects of the sentence which are affected by the identified errors? Alternatively, is the Court to commence the sentencing process entirely afresh?
There are High Court decisions which indicate that once an appellate court has concluded that the sentencing discretion has miscarried in a way which affects one element of a sentence, the whole of a sentence should be set aside and the offender re-sentenced afresh. In McGarry v The Queen,[43] the plurality held that the decision to make an order for the indefinite imprisonment under s 98 of the Sentencing Act 1995 (WA) of a person considered to be a danger to society, on the one hand, and the decision fixing the sentence for the particular offences which brought the defendant before the Court, on the other, formed part of a single sentencing decision.[44] This meant that once the Court of Criminal Appeal in Western Australia concluded that the sentencing discretion had miscarried in relation to the latter, the whole of the sentence imposed by the trial court, including the order for indefinite imprisonment, should have been set aside.[45] Accordingly, under the Western Australian counterpart of s 353(4) of the CLCA,[46] the Court of Criminal Appeal was obliged to re-sentence the defendant itself.

A similar view was taken by McHugh and Kirby JJ in their respective dissenting judgments in Strong v The Queen.[47] McHugh J said:
There can be few, if any, cases where an appellate court, having concluded that an integer of a sentence has miscarried, can refuse to determine afresh the other integers of the sentence.[48]
In R v Ainsworth[49] I expressed the view, without finally deciding the issue, that the principle enunciated in McGarry and in Strong may not require the Court of Criminal Appeal in this State to engage in a complete re-sentencing when it was satisfied that an error had occurred only in the making of an order for indefinite detention under s 23 of the Sentencing Act.[50] The Chief Justice agreed with those reasons, but Layton J took a different view.[51] I considered that the decisions in McGarry and Strong may be distinguishable. Amongst other things, that was because the appeal provisions in the CLCA and the provisions in s 23 of the Sentencing Act indicated that an order for indefinite detention may not be part of the sentence imposed for the substantive offences before the court.
However, a declaration under s 20B of the Sentencing Act that a person is a serious repeat offender is undoubtedly an integral part of the one sentencing process. The effect of s 20B(3) is that a sentencing court which convicts a person who is liable, or becomes liable by reason of the conviction, to a declaration that he or she is a serious repeat offender must consider whether to make a declaration to that effect. If the court considers that the person’s history of offending warrants a particularly severe sentence in order to protect the community, it must make the declaration (s 20B(3)(b)). Section 20B(4) specifies the consequences of the making of a declaration. The court is not then bound to ensure that the sentence which it imposes for the offence is proportional to the offence and must ensure that any non‑parole period fixed in relation to the sentence is at least four-fifths of the length of the sentence.
In this way, the declaration that the person is a serious repeat offender forms an integral part of the sentencing process. I note that the Court in R v Pottage[52] took the same view.
Accordingly, in the present case the application of the principle stated in McGarry and in Strong would require that, in order to discharge its statutory function under s 353(4) of the CLCA, this Court quash the whole sentence imposed by the Judge and substitute such other sentence as it thinks ought to have been passed. (It is unnecessary for the disposition of this appeal to consider whether s 340 of the CLCA imposes any additional requirement).
However, s 353(4)(a) (and for that matter s 340) have to be understood as operating in a practical way. In many cases, no good purpose would be served by the Court commencing the sentencing process entirely afresh. That may require the Court to hear the sentencing submissions afresh and to give the parties an opportunity to present further material. In those cases in which there is no reason to suppose that the sentencing judge’s decision about a particular element in a sentencing package involves error that may involve an unnecessary diversion of the Court’s resources. There is also a public interest in the finality of proceedings.
Having regard to these considerations, I do not understand s 353(4)(a) (or for that matter s 340) to preclude the Court re-sentencing only to the extent necessitated by the issues on the appeal and by the parties’ submissions. If neither party challenges an element in the sentence, it is open to this Court when sentencing to adopt that same element in its sentence. That is to say, the Court may choose to adopt without further consideration those elements of the sentence which are not contentious.
In the present case, the Director did not contend that the Judge had made an inappropriate use of s 18A of the Sentencing Act, or that the Judge’s starting point of 14 years was inappropriate, or that the reduction allowed for the pleas of guilty was inappropriate. Nor did counsel for the respondent contend that the declaration that the respondent was a serious repeat offender was inappropriate. On the contrary, the parties’ submissions accepted that the Judge’s decisions about those matters were appropriate. In those circumstances, even though the Judge’s starting point may have been modest, I consider it appropriate for this Court in re‑sentencing to adopt the elements of the sentence of the Judge which were not impugned on the appeal.
This means that I would make a declaration under s 20B of the Sentencing Act that the respondent is a serious repeat offender, take the Judge’s starting point of 14 years for a single sentence imposed under s 18A, make the same deduction on account of the pleas of guilty which the Judge made, and then deduct one year, nine months and 24 days on account of the time spent by the respondent in custody which can be attributed to the subject offences. This would result in a sentence of 10 years, two months and six days.
As previously indicated, the respondent must first complete service of the unexpired portion of his previous sentence. The sentence of 10 years, two months and six days should be cumulative on that sentence. That means that the total period to be served in custody is 12 years, nine months and 26 days.
Fixing a Non‑parole Period
In applying the mandatory minimum non‑parole period prescribed by s 20B(4)(b), it is first necessary to identify the sentence in respect of which the non‑parole period must be at least four‑fifths. Does s 20B(4)(b) require that the non‑parole period be at least four-fifths of the sentence imposed for the subject offences? Alternatively, does it require that the sentence be at least four-fifths of the total period to be served, of which the sentence for the subject offences forms part? Is the sentence in relation to which the minimum non‑parole period is to be fixed the sentence actually imposed, or the period of imprisonment which would have been imposed if the offender was not given credit for time already served?
I think it reasonably plain, on an ordinary grammatical construction of s 20B(4)(b), that it applies in relation to the sentence imposed for the serious offence, and not to the total period in custody which, by virtue of some previous sentence, the offender is also liable to serve in custody. The “sentence” to which subs (4)(b) refers is the sentence imposed for that offence, or those offences, to which subs (4)(a) refers. In turn, that is the serious offence, or serious offences, of which the court has convicted the person, as contemplated in the opening line of s 20B(4)(b). The sentence to which s 20B(4)(b) refers must therefore be the head sentence imposed for those offences. This means that the non‑parole period must be at least four‑fifths of the sentence which the Court has imposed for the offence or the offences to which subs (4)(a) refers, namely, the sentence which need not be proportional to the offence.
In R v Dundovic,[53] Doyle CJ addressed a similar question in relation to the application of s 32(5a) to single sentences imposed under s 18A of the Sentencing Act for a number of offences in respect of which only one or some require the imposition of the prescribed mandatory minimum non‑parole period. Doyle CJ noted that to read s 32(5a) as requiring the imposition of the mandatory minimum non‑parole period in respect of the total sentence in such cases could work a hardship to the offender. This is because it would require the non‑parole period to be at least four‑fifths of a total sentence under s 18A which included a sentence in respect of offences which did not attract the mandatory minimum non‑parole period.[54]
Shortly after the decision R v Dundovic, Parliament amended s 32(5a) to address the issue which the Chief Justice had identified.[55] The effect of the amendment was to provide that when a court sentences a person under s 18A to one penalty for a number of offences, and a mandatory minimum non‑parole period is prescribed in respect of at least one of those offences, the minimum non‑parole period to be imposed under s 32(5a) is to be fixed only by reference to that offence or those offences which do attract the mandatory minimum. That is to say, the 2009 amendment, although directed to the operation of s 32(5a) in relation to a single sentence imposed under s 18A of the Sentencing Act, evinces a clear statutory intention that a mandatory minimum non‑parole period is to be fixed by reference to the particular offence or offences which attract the application of that minimum. It is not to be fixed by reference to the total period to be served by the offender in custody, when that period is derived from sentences which do not attract the minimum.
The legislative intention evidenced by the 2009 amendment tends to confirm that the construction of s 20B(4)(b) referred to above is correct.
I also consider that the four-fifths minimum applies to the sentence actually imposed by a sentencing judge for the serious offence, and not for the period which would have been imposed if credit was not given for time already served. The “non‑parole period fixed in relation to the sentence” to which s 20B(4)(b) refers should be understood as the non‑parole period fixed under s 32 of the Sentencing Act. Non‑parole periods under s 32 are fixed by reference to the sentence actually imposed. They are a proportion of the maximum period which the offender must spend in custody by virtue of the head sentence[56] and, subject to the provisions of the CSA, the minimum period which the offender must spend in custody to achieve the punitive, deterrent and rehabilitative purposes of the sentence.[57]
If the four-fifths ratio was to be applied to the period of imprisonment determined before credit for time already served, it could result in a minimum non‑parole period which is equivalent to, or exceeds, the head sentence actually imposed.
The effect of these conclusions in the present case is that the mandatory minimum non‑parole period applies only to the sentence of 10 years, two months and six days.
Counsel for the Director submitted that in a case such as the present in which a defendant is sentenced to imprisonment for one or more serious offences and must, in addition, serve the unexpired portion of a previous sentence, the Court should approach sentencing in the following manner:
(a)determine the appropriate sentence for the serious offence(s) after making the allowance which is appropriate, when necessary, for a plea of guilty;
(b)from the period calculated in (a) make the appropriate deduction for any time served in custody;
(c)determine (but not impose) a non‑parole period which the Court considers appropriate if the offence(s) was/were the only one(s) for which the defendant is to be imprisoned on the basis that such non‑parole period must be at least four‑fifths of the sentence;
(d)the non‑parole period calculated in (c) then becomes the lowest non‑parole period which the Court may impose once the total period in custody which the person becomes liable to serve is calculated;
(e)calculate the total period of imprisonment to be served, that is, the aggregate of the sentence appropriate for the serious offences in addition to any other periods to be served;
(f)fix a non‑parole period in relation to the total period to be served bearing in mind that the non‑parole period cannot be any lower than the period identified at step (c).
I agree that this is an appropriate approach.
Therefore, applying the minimum of four‑fifths to the sentence of 10 years, two months and six days indicates that, rounded to the nearest whole month, the minimum non‑parole period should be eight years and two months.
The non‑parole period is to be fixed by reference to the total period to be served (CLSA s 32(2)). Account should be taken of all the usual factors affecting a non‑parole period and, in addition, the Court’s conclusion (by virtue of the declaration under s 20B(3)(b)) that a particularly severe sentence is required in order to protect the community.
Having regard to these matters, I would impose a non‑parole period of 10 years in the present case.
Permission to the Director to Appeal
The limited circumstances in which this Court grants permission to the Director to appeal against a sentence are well-known. The Court does not grant permission to the Director merely with a view to correcting a sentence which is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even when no general point of principle will be established by the case.[58]
The application of these principles in the present case should take account of the additional protection to the public which the Parliament has sought to obtain by s 20B of the Sentencing Act.
In my opinion, the non‑parole period fixed by the Judge is too low. It is two years less than the non‑parole period which I consider should have been imposed. That appears to result from the misunderstandings by the Judge of the time in custody for which the respondent could be given credit and as to the existence of a discretion permitting the non‑parole period to be fixed at less than four-fifths of the sentence which he imposed for the serious offences.
In these circumstances, I consider that this is one of the rare cases in which the Court should grant permission to the Director to appeal against sentence.
Conclusion
I would grant permission to the Director to appeal. I would allow the appeal and would set aside the sentence imposed by the Judge. In its place, I would make a declaration under s 20B of the Sentencing Act that the respondent is a serious repeat offender. After making appropriate allowance for the time spent in custody by the respondent which can be attributed to the subject offences I would impose a single sentence of imprisonment of 10 years, two months and six days. I would order that that sentence be served cumulatively upon the unexpired portion of the sentence imposed by the District Court on 1 October 2004 which, by virtue of s 75 of the CSA, the respondent is now obliged to serve. By virtue of the Judge’s sentence the respondent resumed serving that sentence on 16 November 2010. In respect of the total period in custody of 12 years, nine months and 26 days, I would fix a non‑parole period of 10 years. The non parole period is to be taken to have commenced on 16 November 2010.

[1]    23—Causing serious harm
(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
137—Robbery
(1)A person who commits theft is guilty of robbery if—
(a)     the person—
(i)     uses force, or threatens to use force, against another in order to commit the theft; or
(ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and
(b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for life.

[2] Malvaso v The Queen (1989) 168 CLR 227 at 232-233; Everett v The Queen (1994) 181 CLR 295 at 303.

[3] Everett v The Queen (1994) 181 CLR 295 at 299-300.

[4] R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168 at 172.

[5] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.

[6] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340. See further the authorities on Crown appeals against sentence as set out in R v Marikar [2010] SASCFC 36.

[7] R v Marikar [2010] SASCFC 36 at [33]-[37]; R v Nemer (2003) 87 SASR 168 at [26]; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 168 CLR 227 at 234.

[8] R v Marikar [2010] SASCFC 36 at [33-37]; R v Nemer (2003) 87 SASR 168 at [26]; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 168 CLR 227 at 234.

[9] R v Drewett (1983) 35 SASR 344 at 346.

[10] R v Mangelsdorf (1995) 66 SASR 60 at 71; Dinsdale v The Queen (2000) 202 CLR 321 at [62]; R v Elliott (2001) 121 A Crim R 254 at [96].

[11] That is, by the use of the word “must”.

[12] R v Mangelsdorf (1995) 66 SASR 60.

[13] See for example R v Ivic [2006] SASC 8 at [56]-[57]; R v Robinson [2004] SASC 189 at [60]-[61] and [65]; R v Mangelsdorf (1995) 66 SASR 60 at 71. See also R v Meers (1998) 101 A Crim R 329 at 332-333.

[14] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36]. A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.

[15] See for example K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [50]-[53] (French CJ).

[16] House of Assembly, Parliamentary Debates, Wednesday 13 February 2008, 2037 (The Honourable MJ Atkinson).

[17] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].

[18] R v Curtis (No 2) (2009) 105 SASR 411.

[19] R v Williams (2006) 96 SASR 226.

[20] R v Curtis (No 2) (2009) 105 SASR 411.

[21] R v Williams (2006) 96 SASR 226.

[22] Division 2A of the Criminal Law (Sentencing) Act 1988 (SA) concerns serious repeat offenders and was inserted into the Act in 2003. A number of amendments have followed. In 2010 further amendments came into force, in particular dealing with recidivist young offenders. At this time, the title of the division changed from “Serious repeat offenders” to “Serious repeat adult offenders and recidivist young offenders”. Section 20C was introduced, which section is dedicated to declarations that a youth is recidivist young offender. At the same time, sections 20A and 20B were amended. Section 20A concerns the interpretation and application of the Division, and section 20B, as set out in these reasons, deals with declarations that a person is a serious repeat offender. The changes to these sections effected in 2010, included changes to the definition of serious offence, and other changes incorporating the application of section 20C. In particular, subsection (2) of section 20B was deleted. That subsection now appears in substantially the same terms, in subsections (1) and (3) of section 20A.
Section 20A(3) now provides:
An offence is one to which this Division applies if the offence is a serious offence and—
(a) a sentence of imprisonment (other than a suspended sentence) has been imposed for the offence; or
(b) if a penalty is yet to be imposed—a sentence of imprisonment (other than a suspended sentence) is, in the circumstances, the appropriate penalty.
[emphasis added]
Section 20B(1)(a)(i) provides that a person is liable to be declared a serious repeat offender if that person has committed on at least 3 separate occasions “an offence to which this Division applies”.
The 2010 amendments occurred after the subject offending and prior to sentencing at first instance. However, to the present proceeding, the amendments are immaterial in so far as they apply to the liability of the defendant to be declared a serious repeat offender.

[23] R v Curtis (No 2) (2009) 105 SASR 411.

[24] R v Curtis (No 2) (2009) 105 SASR 411 at [42]-[43].

[25] McGarry v The Queen (2001) 207 CLR 121.

[26] That section relevantly provides:
(1)If a superior court -
(a)     sentences an offender for an indictable offence to a term of imprisonment;
(b)     does not suspend that imprisonment; and
(c)does not make a parole eligibility order under Pt13 in respect of that term, it may in addition to imposing the term of imprisonment for the offence (the 'nominal sentence'), order the offender to be imprisoned indefinitely.
(2)Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:
(a)     the exceptional seriousness of the offence;
(b)     the risk that the offender will commit other indictable offences;
(c)     the character of the offender and in particular -
(i)      any psychological, psychiatric or medical condition affecting the offender;
(ii)the number and seriousness of other offences of which the offender has been convicted;
(d)     any other exceptional circumstances.
(3)In deciding whether an offender is a danger to society, or a part of it, the court -
(a)is not bound by s6 but is bound by any guidelines on the imposition of indefinite imprisonment in a guideline judgment given under s143; and
(b)     may have regard to such evidence as it thinks fit.

[27] McGarry v The Queen (2001) 207 CLR 121 at [1].

[28] McGarry v The Queen (2001) 207 CLR 121 at [7]-[9].

[29] Strong v The Queen (2005) 224 CLR 1.

[30] Sections 4(1) and 6 of the Habitual Criminals Act1957 (NSW), relevantly provide:
[Section 4(1)]
When any person ... is convicted on indictment and has on at least two occasions previously served separate terms of imprisonment as a consequence of convictions of indictable offences ... then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person's reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which the person is so convicted, pronounce the person to be an habitual criminal and shall thereupon pass a further sentence upon the person in accordance with the provisions of section 6.
[Section 6]
(1) The judge who, pursuant to the provisions of section 4, has pronounced a person to be an habitual criminal, shall pass a sentence of imprisonment upon such person for a term of not less than five years nor more than fourteen years.
(2) Any sentence of imprisonment being served by any such person at the time the person is pronounced to be an habitual criminal shall be served concurrently with the sentence imposed pursuant to the provisions of subsection (1).

[31] Strong v The Queen (2005) 224 CLR 1 at [21], [27].

[32] Strong v The Queen (2005) 224 CLR 1 at [25].

[33] Strong v The Queen (2005) 224 CLR 1at [27].

[34] Strong v The Queen (2005) 224 CLR 1 at [29].

[35] Strong v The Queen (2005) 224 CLR 1 at [80].

[36] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).

[37] Contrary to s 23(1) of the CLCA.

[38] Section 20B(3) and (4) of the Sentencing Act provide as follows:
(3)If a court convicts a person of a serious offence, and the person is liable, or becomes liable as a result of the conviction, to a declaration that he or she is a serious repeat offender, the court—
(a)     must consider whether to make such a declaration; and
(b)    if of the opinion that the person's history of offending warrants a particularly severe sentence in order to protect the community—should make such a declaration.
(4)If a court convicts a person of a serious offence, and the person is declared (or has previously been declared) to be a serious repeat offender—
(a)     the court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence; and
(b)    any non-parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.

[39] [2006] SASC 377; (2006) 96 SASR 226.

[40] [2009] SASC 350; (2009) 105 SASR 411.

[41] Cf R v Cattell [2010] SASCFC 18 at [25].

[42] R v Slater (1984) 36 SASR 524 at 527-9; R v Dundovic [2008] SASC 136 at [50]; (2008) 101 SASR 32 at 40. Cf R v Wilson [2010] SASC 89 at [47]; (2010) 106 SASR 502 at 514.

[43] [2001] HCA 62; (2001) 207 CLR 121.

[44] Ibid at [8]; 126.

[45] Ibid at [9]; 126.

[46] Section 353(4) provides:

(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—

(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

(b) in any other case—dismiss the appeal.

[47] [2005] HCA 30; (2005) 224 CLR 1.

[48] Ibid at [25]; 13.

[49] [2008] SASC 67; (2008) 100 SASR 238.

[50] Ibid at [88]-[94]; 261-2.

[51] Ibid at [108]; 264.

[52] [2010] SASCFC 75 at [10].

[53] [2008] SASC 136; (2008) 101 SASR 32.

[54] Ibid at [42]; 39.

[55] Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, s 10.

[56] R v Shresthra (1991) 173 CLR 48 at 67.

[57] R v Creed (1985) 37 SASR 566 at 568-9 (King CJ).

[58] R v Nemer [2003] SASC 375 at [24]; (2003) 87 SASR 168 at 172.