R v Saunders

The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent, who had pleaded guilty to aggravated robbery and two counts of aggravated causing serious harm with intent to cause serious harm. The sentencing judge had declared the respondent a serious repeat offender and imposed a head sentence of 12 years' imprisonment, reduced by time spent in custody, with a non-parole period of eight years. The Director argued that the sentencing judge had miscalculated the time spent in custody and had misapplied the statutory provisions concerning serious repeat offenders, leading to a manifestly inadequate non-parole period.

The court was required to determine whether the sentencing judge erred in the computation of the time the respondent had spent in custody and whether the judge had correctly applied the provisions of section 20B of the Criminal Law (Sentencing) Act 1988, which mandates that the non-parole period for a serious repeat offender must be at least four-fifths of the head sentence. The court also considered whether the head sentence and the non-parole period were manifestly inadequate given the gravity of the offences and the respondent's prior criminal history.

The court found that the sentencing judge had made an error in calculating the time in custody, to the respondent's favour, by approximately two months and 23 days. More significantly, the court determined that the judge had plainly erred in believing they retained a discretion not to fix a non-parole period of at least four-fifths of the head sentence, despite the declaration of the respondent as a serious repeat offender. This misapplication of section 20B led to a non-parole period that the court considered manifestly inadequate. The court also found the head sentence to be too low, notwithstanding the pleas of guilty and the discount given.

Consequently, the court granted the Director permission to appeal, allowed the appeal, and set aside the original sentence. The court resentenced the respondent to a total term of imprisonment of 13 years and two months, to be served cumulatively on the unexpired balance of his previous sentence, resulting in a total period of imprisonment of 15 years, nine months, and 20 days. A non-parole period of 11 years and 10 months was fixed, commencing from the date of the original sentencing.