R v Hatahet

Case [2024] HCA 23

HIGH COURT OF AUSTRALIA

GORDON A-CJ,
STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE KING  APPELLANT

AND

FAYEZ HATAHET  RESPONDENT

The King v Hatahet

[2024] HCA 23

Date of Hearing: 14 May 2024
Date of Judgment: 12 June 2024

S37/2024

ORDER

1.Appeal allowed.

2.Set aside the orders of the Court of Criminal Appeal of New South Wales made on 29 November 2023 (as amended on 5 December 2023) and, in their place, order that:

(a)leave to appeal against sentence be granted; and

(b)the appeal be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

R J Sharp KC with O P Holdenson KC and C J Tran for the appellant (instructed by Director of Public Prosecutions (Cth))

M J Avenell SC with P R Coady for the respondent (instructed by Legal Aid NSW)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v Hatahet

Criminal law (Cth) – Sentence – Where respondent convicted under s 6 of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Where s 19ALB of Crimes Act 1914 (Cth) provides Attorney‑General must not make parole order in relation to person involved in, or convicted of, certain terrorist‑related activities unless "exceptional circumstances exist to justify making a parole order" – Where sentencing judge sentenced respondent without taking into account likelihood (if any) of release on parole by reason of s 19ALB of Crimes Act – Where parole subsequently refused by Attorney‑General pursuant to s 19ALB of Crimes Act – Whether Court of Criminal Appeal erred in concluding that sentencing judge should have considered application of s 19ALB when sentencing respondent – Whether Court of Criminal Appeal erred in concluding that expectation that parole would be refused due to an application of s 19ALB warranted imposition of lesser sentence.

Words and phrases – "conditions of imprisonment", "executive function", "length of sentence", "non‑parole period", "onerous conditions", "parole", "presumption against parole", "prospects of parole", "purpose of sentencing", "sentencing", "terrorism".

Crimes Act 1914 (Cth), ss 16A, 19AB, 19ALB.
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(b).

  1. GORDON A-CJ, STEWARD AND GLEESON JJ. In April 2020, the respondent was arrested and charged under s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) with the offence of engaging in a hostile activity in a foreign State, namely Syria. In 2021, in the Local Court of New South Wales, the respondent pleaded guilty to, and was convicted of, that offence.[1] In December 2022, he was sentenced to imprisonment for five years, with a non-parole period of three years, commencing on 24 August 2020. The sentence was to expire on 23 August 2025.

    [1]Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(b). The maximum penalty is imprisonment for 20 years.

  2. Consistently with s 16A of the Crimes Act 1914 (Cth), in sentencing the respondent the sentencing judge took into account, amongst other factors, the probable…

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AGLC
The King v Hatahet [2024] HCA 23
Case
[2024] HCA 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Commonwealth Attorney-General against a decision of the Court of Criminal Appeal of New South Wales. The dispute concerned the sentencing of the respondent, who had been convicted under s 6 of the *Crimes (Foreign Incursions and Recruitment) Act 1978* (Cth). The central issue was whether a sentencing judge was required to consider the impact of s 19ALB of the *Crimes Act 1914* (Cth) when imposing a sentence, which provision restricts the Attorney-General's ability to make a parole order unless exceptional circumstances exist.

The legal issues before the High Court were whether the Court of Criminal Appeal erred in concluding that the sentencing judge should have considered the application of s 19ALB of the *Crimes Act* during sentencing, and whether the Court of Criminal Appeal erred in finding that the expectation of parole refusal under s 19ALB warranted a lesser sentence. The respondent had been sentenced to a head sentence of five years with a non-parole period of three years, and the sentencing judge had taken into account the onerous conditions of his imprisonment. Subsequently, the Attorney-General refused parole pursuant to s 19ALB.

The High Court reasoned that the subject matter, scope, and purpose of the *Crimes Act* indicate that a sentencing court is not to consider the likelihood of parole being granted or refused, including by operation of s 19ALB. The Court affirmed that the fundamental obligation of a sentencing court is to impose a sentence appropriate to the circumstances of the offence and offender, as stipulated in s 16A(1) of the *Crimes Act*. The matters listed in s 16A(2) do not include the prospects of parole, which is consistent with the common law position that sentencing courts should not speculate on executive decisions regarding release. The Court noted that parole decisions involve the exercise of discretion by the Executive based on circumstances existing at the time of potential release, which cannot be known to the sentencing judge.

The High Court allowed the appeal, setting aside the orders of the Court of Criminal Appeal. It reinstated the original sentence imposed by the sentencing judge, finding that the sentencing judge had not erred by not considering s 19ALB. The Court concluded that the Court of Criminal Appeal had erred in its reasoning and in its re-exercise of the sentencing discretion.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of New South Wales made on 29 November 2023 (as amended on 5 December 2023) and, in their place, order that:

(a) leave to appeal against sentence be granted; and

(b) the appeal be dismissed.

On appeal from the Supreme Court of New South Wales

Background

Background to the litigation

For the reasons which follow, the sentencing judge in the District Court of New South Wales (Judge Baker SC) did not err by not considering s 19ALB in sentencing the respondent. Rather, the Court of Criminal Appeal of New South Wales (Basten A‑JA, Davies and Cavanagh JJ agreeing) erred in concluding that the sentencing judge, in not considering s 19ALB, erred and that, when considered, s 19ALB warranted the imposition of a lesser sentence than that imposed by the sentencing judge.[63] [63]Hatahet v The King [2023] NSWCCA 305 at [89], [90], [91].Background The respondent was charged on indictment on two counts of engaging in hostile activity in a foreign State, namely Syria, with the intention of achieving one or more specified objectives contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Following his arrest, the respondent was refused bail and, because he was classified as an extreme high risk restricted ("EHRR") inmate, was held in the High Risk Management Correctional Centre ("the HRMCC") at Goulburn. There was evidence before the sentencing judge that conditions of imprisonment at the HRMCC were "extremely onerous" compared to conditions under which other prisoners, not classified as EHRR, were held in custody. The respondent pleaded guilty to one count, the other having been discontinued. The sentencing judge sentenced the respondent to a term of imprisonment consisting of a non‑parole period of three years[64] and a head sentence of five years commencing from 24 August 2020. In both fixing the total sentence and setting the commencement date of the sentence, the sentencing judge took into account, amongst other things, that the respondent had been held in custody in the extremely onerous conditions at the HRMCC. The head sentence was due to expire on 23 August 2025 and the respondent first became eligible for parole on 23 August 2023.[65] [64]Section 19AB(1) of the Crimes Act 1914 (Cth) required the sentencing judge to fix a non‑parole period, subject to certain immaterial exceptions.[65]The Commonwealth Attorney‑General refused the respondent parole on 21 August 2023. The respondent appealed against sentence on the ground that it was manifestly excessive. The Court of Criminal Appeal granted the respondent leave to appeal, allowed the appeal, and sentenced the respondent to a term of imprisonment of four years, with a non-parole period of three years, the sentence having commenced on 24 August 2020. As a result, the head sentence will expire on 23 August 2024. In allowing the appeal, the Court of Criminal Appeal rejected the contention that the sentence the sentencing judge imposed was manifestly excessive but held that the sentencing judge erred in principle by not taking into account the respondent's "ineligibility for release on parole" by reason of s 19ALB of the Crimes Act, so that the respondent "will continue to suffer more onerous conditions of imprisonment",[66] which the Court of Criminal Appeal concluded warranted a reduction in the sentence imposed by the sentencing judge. In re-exercising the sentencing discretion, Basten A‑JA said:[67]"Where there has otherwise been no error established on the part of the sentencing judge, there is no basis to interfere with the non-parole period of 3 years. However, the additional term of two years should be reduced to one year, being a sentence expiring on 23 August 2024. That variation recognises that the [respondent] will not get parole when ordinarily he would likely have obtained parole before the end of his sentence. If compassionate grounds amounting to exceptional circumstances arise within that period there is a chance he will obtain conditional release, but the chance is low and his liberty will then be subject to supervision."[66]Hatahet v The King [2023] NSWCCA 305 at [84]. [67]Hatahet v The King [2023] NSWCCA 305 at [88].Statutory provisions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A-CJ, STEWARD AND GLEESON JJ (dissent) JAGOT J BEECH-JONES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JAGOT J, BEECH-JONES J

By s 19AB(1), a sentencing court is required to fix a single non‑parole period in respect of a federal sentence of imprisonment as specified, unless satisfied that a non-parole period is not appropriate in accordance with s 19AB(3). Consideration Whether a sentencing judge is bound to consider the potential operation of s 19ALB on a person being sentenced to a term of imprisonment involves the proper construction of the provisions of Pt IB of the Crimes Act. If the allegedly relevant factor is not expressly stated to be relevant (as in this case), its relevance is to be determined "by implication from the subject‑matter, scope and purpose of the Act".[69] Further, if "a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard".[70] In this case, the subject‑matter, scope and purpose of the Crimes Act indicate that, in imposing a sentence of a term of imprisonment, a sentencing court is not to consider the likelihood, or lack thereof, that a person may be granted parole, including by operation of s 19ALB of the Crimes Act. [69]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39‑40.[70]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. The fundamental obligation of a sentencing court is stated in s 16A(1) of the Crimes Act and is that:"In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." Section 16A(2) then provides that:"In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:..." The matters nominated in s 16A(2) do not include the likelihood, or lack thereof, of the person obtaining parole. This is unsurprising as, at the time of sentence and the fixing of a non‑parole period, a sentencing judge will not be able to assess the potential for the person to be granted or refused parole other than by reference to some of the factors referred to in s 19ALA(1). Many of the factors specified in s 19ALA(1), however, concern matters which cannot be known or fully known at the time of sentence (for example, the risk to the community of releasing the person on parole (s 19ALA(1)(a)), the person's conduct while serving their sentence (s 19ALA(1)(b)), and whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency (s 19ALA(1)(c))). This is consistent with the position at common law that a sentencing court is not to consider the likelihood, or lack thereof, of a person being granted release after having served a non‑parole period. The reasons for this position at common law have been variously expressed, including: (a) as a matter of principle, it is necessary to fix the head sentence first, lest that sentence, being the term "which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender",[71] be influenced by speculation as to the prospect of release of the person at the expiry of a minimum sentence or non‑parole period; (b) release on parole or after a minimum period has expired depends on the exercise of discretion by the Executive by reference to circumstances as they exist at that time, which cannot be known to the sentencing court;[72] (c) the exercise of the discretion by the Executive "is neither predictable nor controllable by the sentencing judge", and a person's liberty should not depend on speculation "no matter how well grounded";[73] (d) in sentencing, "the Court is not concerned with remissions for good conduct nor with the policy of the Parole Board", as the duty of a sentencing judge is in the first place to determine what is the appropriate term of imprisonment[74] to be imposed;[75] and (e) a sentencing court could only give effect to a consideration of the likelihood of a person being released earlier than the maximum sentence imposed by "increasing the length of the term of imprisonment that [the sentencing court] would otherwise have imposed", which "would not only be contrary to principle but also contrary to the clear intention of Parliament" to impose the sentence "which in all the circumstances [the sentencing court] considers to be appropriate to the offence and to the offender".[76][71]Morgan (1980) 7 A Crim R 146 at 154.[72]See, for example, R v Yates [1985] VR 41 at 47; Re Jackson [1997] 2 VR 1 at 3.[73]Morgan (1980) 7 A Crim R 146 at 156.[74]Assuming, in accordance with s 17A(1), that the sentencing court is satisfied that no other sentence is appropriate in all the circumstances of the case.[75]R v Yates [1985] VR 41 at 44‑45. See also Hoare v The Queen (1989) 167 CLR 348 at 353-356 (albeit in the context of remission).[76]R v Yates [1985] VR 41 at 46.