R v Hatahet

[2024] HCATrans 37

[2024] HCATrans 037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S37 of 2024

B e t w e e n -

THE KING

Appellant

and

FAYEZ HATAHET

Respondent

GORDON ACJ
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 MAY 2024, AT 10.00 AM

Copyright in the High Court of Australia

MS R.J. SHARP, KC:   May it please the Court, I appear with my learned friends MR O.P. HOLDENSON, KC and MR C.J. TRAN for the appellant.  (instructed by Director of Public Prosecutions (Cth))

MS M.J. AVENELL, SC:   May it please the Court, I appear with MR P.R. COADY for the respondent.  (instructed by Legal Aid NSW)

GORDON ACJ:   Thank you.  Ms Sharp.

MS SHARP:   Your Honours, in our submission, a sentencing judge when imposing a federal sentence of imprisonment must not take into account that section 19ALB of the Crimes Act may or will make it more difficult for the offender to obtain parole.  The Court of Criminal Appeal held to the contrary, on the basis that the effect of section 19ALB in making parole more difficult to attain would make the service of the respondent’s custodial sentence more onerous.

We submit there are three reasons why the Court of Criminal Appeal was incorrect to hold as it did, namely that the sentencing judge should have taken into account the so‑called likelihood of parole being refused here – here, to reduce the sentence – each of which will be developed orally.  First, the court below proceeded on a false footing.  The premise that custody to be served with the knowledge that parole will be difficult to obtain, or has been refused, will be more burdensome, or more punitive.  That premise is, in our submission, contrary to law.

The second, that section 16A of the Crimes Act does not accommodate consideration of the impact of any adverse parole decision in determining sentence, either textually or as a matter of principle.  The third reason, we submit, the court below fell into error was in finding that the principle that the effect of section 19ALB should be taken into account in this way is not available because it subverts the legislative intent of section 19ALB.

To frame those points, can I begin by taking the Court to the provisions of the Crimes Act that are at the heart of this appeal.  I propose to take the Court first to section 16A and the provisions that deal with the imposition of sentence, which is the judicial function, before turning to the parole regime, the function of the Executive.  Commencing with section 16A, this is at page 31 of the joint book of authorities, 16A contains the general principles, subsection (1):

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 –

These are the key words, in our submission:

that is of a severity appropriate in all the circumstances of the offence.

That phrase we see repeated in a number of the authorities to which I will take the Court.  To use the language of this Court, in Hili v The Queen 242 CLR 520, at paragraph 25, section 16A accommodates the application of the common law in various ways, but as we will be seeing it does not accommodate the common law in all ways. Can I take the Court to that paragraph from Hili. That is at page 252 of the joint book of authorities, behind tab 11. The paragraph begins:

As noted in Johnson v The Queen, s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of “totality” discussed in Mill v The Queen.  Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression “of a severity appropriate in all the circumstances of the offence” used in s 16A(1), as well as some of the expressions used in s 16A(2), such as “the need to ensure that the person is adequately punished for the offence” (s 16A(2)(k)).  But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed.  To attempt such a generalisation would depart from the injunction that the sentencing court “must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the office” –

Returning, then, to the provisions of the Act, section 16A(2) sets out various matters relating to the offence, the offending and the offender that must be taken into account in fixing the sentence, that is, in addition to other matters.  Subsection (2) is an inclusive list; it is not an exhaustive or exclusive list.  Notably, though, the factors in subsection (2) are qualified in that they must be both:

relevant and known to the court –

I will come back to 16A to address the propositions in the oral outline at 1(a) and 1(b), but I wanted to move ahead with the provisions in the Crimes Act and take the Court next to section 17A.

GORDON ACJ:   Can I just ask one question about 16A(2).  Where it says:

relevant and known to the court –

That means known to the court at the time of sentencing?

MS SHARP:   Correct, your Honour, in our submission.  It has been discussed, and it was discussed in the case of Weininger v The Queen 212 CLR 629, where the Court indicated that it:

should not be construed as imposing a universal requirement that matters . . . be either formally proved or admitted.

But, certainly, known to the court at the time of sentence.

GORDON ACJ:   Thank you.

MS SHARP:   Section 17A, which is at page 49 of the joint book of authorities.  This is a statutory expression of parsimony, imprisonment as a last resort.  Having determined that no other sentence is appropriate, if imprisonment is the appropriate disposition, the court must then determine the duration of sentence.  This is not to suggest that the process is linear, but just following through the provisions, there is a logic to the order of them within the Crimes Act.  The duration of the sentence imposed determines whether a non‑parole period is to be fixed or a recognisance release order is to be made, and this is found in section 19AB, which is at page 54. 

I now propose to take the Court through section 16A in slightly more detail, but just to address the propositions in the outline.  As the Court will have seen, nothing either express or implied in section 16A requires consideration of whether or not the Executive will grant parole.  Textually, there is no reference to parole, and, in our submission, there is no scope or warrant to imply it.  The respondent asserts, at paragraph 21 of their written submissions, that this concept can be accommodated as an aspect of general deterrence, but does not develop or explain how that is the case.

The respondent asserts that it can also be accommodated within a range of factors, again without articulating how, other than as a circumstance of the custody to be served.  So, a circumstance that visits on the offender with a custody being more burdensome, how it might otherwise fit.  But, in our submission, bearing in mind the purpose for which non‑parole period is fixed, to which we will come, there is simply no scope in section 16A to consider whether or not parole would be granted as a factor relevant to determining the sentence.

STEWARD J:   That is as much as saying, if it was going to be a relevant factor, they would have listed it.

MS SHARP:   Yes, your Honour.

STEWARD J:   Yes.

MS SHARP:   At common law, in our submission, a judge is not permitted to take into account the likelihood or unlikelihood that an offender may be released after having served any non‑parole period.  There is no common law principle that requires it and, in our submission, the common law is to the opposite effect.  As a result, there is no such principle that could be accommodated by section 16A.  In addition to the matters addressed in our written submissions at paragraphs 20 to 25 and in the reply at paragraphs 3 to 7, can I take the Court to three cases in particular on this point. 

I seek to commence with the case of Attorney‑General v Morgan (1980) 7 A Crim R 146. In that case, the court was considering an appeal by the Attorney‑General against sentence and it was in the context of a scheme whereby remissions meant that the prisoner would serve a considerably shorter period of time than that imposed by the sentence. The court concluded that the sentences there – there were two bank robbers, twin brothers – were manifestly inadequate, but also stated that a court is not entitled to take into account that a prisoner will serve less than the full sentence by reason of remissions or a grant of parole. Can I take the Court to page 156 of Morgan, which is at page 355 of the joint book of authorities.

GORDON ACJ:   Tab 16?

MS SHARP:   Tab 16.  Thank you, your Honour.  At about point 4 on the page, the paragraph commencing “if it were asserted”:

If it were asserted, or even if it were proved that the date of release on parole of a particular offender, or of a particular class of offender, could in fact be predicted with confidence by reference to the probabilities disclosed by statistical information about past practice in the exercise of the discretionary powers with respect to parole and remission, the courts would yet be right, in my opinion, to disregard the possibility that less than the sentence passed might be endured, by reason of the grant of remissions or by reason of release on parole.  The liberty of the subject under the common law is not to be set at hazard upon a statistical probability, nor curtailed in the expectation, no matter how well grounded, that an agent of the Executive Government or a Parole Board will choose to set him free before the law’s sentence has run its course.

Morgan was ‑ ‑ ‑

GLEESON J:   As the respondent says, that justification does not support the construction in this case, does it?

MS SHARP:   I am sorry, your Honour, I missed the first part of your Honour’s question.

GLEESON J:   The justification that is given there for that principle does not support the construction in your particular case.

MS SHARP:   In our submission, your Honour – and I am sorry, I am not following your Honour’s question directly ‑ ‑ ‑

GLEESON J:   I think the point was made by the respondent – the point was that this is a concern about the liberty of the subject, and you are not justifying your construction by reference to the liberty of the subject.  Your point is that the sentence should be served – that the prisoner should stay in custody.

MS SHARP:   Yes, the question about whether the sentence should be increased by reference to the remissions or decreased by reference to the remissions is a distinction we see in the materials but, in our submission, the real vice is an impact of the exercise of executive function on the sentence – whether that is to increase the sentence, to avoid the remissions as was the case here, or to decrease the sentence, to avoid the operation of a more stringent test for parole.  It is the impact of the exercise of the executive function in the form of the remissions or parole on the sentence that we submit is in error, and not permissible.

BEECH‑JONES J:   So, you are extracting a larger principle from this one, which is directed to the reduction of sentence.  You say, if that follows, then the reverse follows as well.

MS SHARP:   Yes, your Honour, precisely.

GORDON ACJ:   Is there a prior point about all of this in any event?  In effect drawn – and I understand there is a development of common law principles that you are seeking to identify, but is it not a matter of structure within the statute itself that you have the division between the imposition of the term of imprisonment in one part of the Act dealing with the judicial function, and a separate part of the Act dealing with parole on the executive function?

MS SHARP:   Yes, your Honour.  There are a number of ways to come ‑ ‑ ‑

GORDON ACJ:   I mean, this is another way of putting it in this context.

MS SHARP:   Yes, there are a number of ways of coming at the problem.  The first is the setting of the sentence is the judicial function and, once the sentence is imposed, that function is concluded and at an end.  What happens thereafter is a matter for the Executive.  We see that in a number of the cases.  That is also reflected in the structure of the Act.  The imposition of the sentence comes first, following the provisions about when parole might be granted and by whom and in what circumstances.  That is a short answer to the point, to the entire case, yes.

GORDON ACJ:   Then, if we come to this passage here in Morgan, picking up what Justice Beech‑Jones put to you, is it to say no more than that one does not adjust the term of imprisonment by reference to possibilities and speculations?

MS SHARP:   Precisely, your Honour.  The function of the executive function, which comes after in time to the judicial function, cannot reach back in time to vary or impact the sentence that is to be imposed pursuant to the judicial function.

GORDON ACJ:   Thank you.

MS SHARP:   Thank you, your Honour.  With your Honour’s observations in mind – can I take the Court then briefly to the case of R v Yates [1985] VR 41 at tab 19 of the materials. For context, Mr Yates was 68 years old at the time of sentence, was sentenced to a total term of 10 years with a non‑parole period of 8 years. Mr Yates appealed, arguing, given his age, the sentence would be “crushing” – that is, in the sense of destroying:

any reasonable expectation of useful life after release.

given his age.  At this period of time there was a significant remission scheme, which meant that, in all likelihood, Mr Yates would only serve a very small proportion of the sentence.  The Crown submitted that because of those remissions, he would not serve the entire period and therefore the sentence was not “crushing”.

The court held in Yates that in imposing a sentence, a court could not have regard to either the remissions or the possibility of the grant of parole.  Can I take the Court to Yates at page 44, which is in the joint book of authorities at page 377. To frame here, at about the middle of the page, this merely frames the knowledge of the sentencing judges at the time of imposing the sentence:

We have said that a sentencing judge knows that in all probability a person sentenced to imprisonment will not serve even the minimum term in gaol.

This is in answer to your Honour Justice Gordon’s observation at the outset – facts known to the court at the time of sentence, whilst it might be accepted that this information could be known to the court as at the time of the sentence because of the way that the remission schemes operated, that, in our submission, is no answer to the question or the issue; it is still prohibited because it is the exercise of the executive function that comes later.

GORDON ACJ:   You may be coming to it, but in Minogue, the Court – I think at paragraph 17, something like that, at least, I could have the paragraph wrong – recognised or acknowledged the fact that of course, parole schemes change, and so that one of the other difficulties with identifying or seeking to take into account the prospect of parole at the time of sentencing was that it may very well not be the same scheme when the parole period expires.

MS SHARP:   That is so, your Honour, and your Honour is correct, it is paragraph 17, and this is in the joint book of authorities at page 328, tab 14.  There, the Court said – as your Honours remembered:

Moreover, the power to release a prisoner on parole after the expiry of the non‑parole period is a matter for the executive, subject to the statutory scheme and administrative policies applicable to the exercise by the Board of the executive function of determining whether to release the prisoner on parole.  No less importantly, the legislative scheme, as well as practice and policies, regarding the parole system may validly change from time to time.

It is one of the aspects of the speculative nature of the issue.  Returning then to Yates, if I could, I had framed the knowledge and the sentencing judge by reference to some observations at page 44. If I could take the Court to page 45, this is 378 of the joint book of authorities, from line 10, and this is to confirm or repeat the point that your Honour Justice Gordon made:

In the exercise of that function –

That is, the judicial function in imposing sentence:

there would appear to be no place for any inquiry as to the policy of the Board in relation to parole.  Having fixed the maximum term, the court is then, in cases like the present in which the sentence is not less than two years, required by the section to fix a minimum term, except in specified circumstances.  The specification of those circumstances is in these terms:  ‘ . . . the court shall not be required to fix a minimum term as aforesaid if the court considers that the nature of the offence and the antecedents of the offender render the fixing of a minimum term inappropriate.’  Questions as to the policy of the Board would appear to be irrelevant to the inquiry which the sentencing judge is called upon by those words to make.

That is really the heart of that paragraph.  The court goes on:

The antecedents of the offender may, as the statute implies, be such as to persuade the court that the prisoner is not a suitable person to be dealt with under the parole system, but an inquiry into that question is not one into which the question of policy above referred to would enter.”

The court in Yates goes on, at page 46, over the page – just to repeat the point that I have been discussing and making – commencing at line 3 on page 46:

The task of a sentencing judge is to impose the punishment which in all the circumstances he considers to be appropriate to the offence and to the offender.  If a judge imposing a custodial sentence were to assume that an offender would probably earn full remissions, he could only give effect to the probability by increasing the length of the term of imprisonment that he would otherwise have imposed.  He would then not be imposing “the sentence” which he thought was appropriate, but something more than that.  So to act would not only be contrary to principle but also contrary to the clear intention of Parliament.  The direction which Parliament gives the courts is, in effect, to impose a sentence within a prescribed range.  It is from the sentence so imposed that the regulations provide that remissions are to be earned and to increase the sentence imposed because those remissions would probably be earned would clearly run counter to the intention of the legislation.

In our submission, that is precisely what the Court of Criminal Appeal did in this case.  Having found that the sentence initially imposed of five years with a non‑parole period of three years was appropriate in all the circumstances but for the parole, the court then varied the sentence on the basis of the refusal to grant parole.  There is one further passage from Yates that I would like to take the Court to, again over the page, this is on page 47, page 380 of the appeal book, commencing at line 23 where the court said:

It might be thought that a distinction should be drawn between a prisoner’s prospect of release on parole and his chance of earning remissions.

The case focused on remissions, but here it is dealing with parole:

It might be said that although the prospect of release on parole should not be taken into account because that is entirely a question for the Parole Board, the probability of his earning full or nearly full remissions is so great that it is only realistic to take that probability into account.  Such a contention has a superficial attraction but it is answered by the considerations to which we have referred.

There the court was really addressing the fact that there is no substantive difference to remissions and parole in this context.  They remain decisions of the Executive, about which speculations can be made, but we cannot be sure about the ultimate outcome.

BEECH‑JONES J:   In Yates, were those remissions earned automatically by the operation of a regulation or was there some sort of policy, discretionary aspect to it?

MS SHARP:   My recollection, your Honour, was that it was by regulation.

BEECH‑JONES J:   And they just knocked off as you went?

MS SHARP:   They just knocked off as you went, yes.  So, it was almost a calculation that could be made at the outset.

BEECH‑JONES J:   I see.

MS SHARP:   Finally, on this point, I just briefly wanted to mention the case of Hoare v The Queen 167 CLR 348, which is in the materials at ‑ ‑ ‑

GORDON ACJ:   Tab 12.

MS SHARP:   Tab 12, thank you, your Honour.  This is referred to in part B of our written submissions.  The point we make in writing, which I will just draw the Court’s attention to, is that for all the reasons that remissions are not to be considered when imposing a sentence, so too is the question of parole.

Coming, then, to the parole provisions – so, perhaps, spend some time on section 16A and the imposition of the sentence – as we have discussed, once the sentence of severity appropriate in all the circumstances is determined, the sentencing court must consider Division 5 of Part IB, and, if appropriate, fix a non‑parole period.  Section 19AB(1), which is at page 54 of the joint book of authorities, requires:

Subject to subsection (3), a court must fix a single non‑parole period –

Relevantly, in this case, because the sentence imposed by the sentencing judge was greater than three years – five years at first instance – the sentencing judge was required to fix a non‑parole period, which his Honour did.  One provision that I do want to take the Court to there is subsection (3), one part of the section:

A court may decline to fix a non‑parole period under this section if:

(a)the court is satisfied that a non‑parole period is not appropriate, having regard to:

(i)the nature and circumstances of the offence or offences; and

(ii)the antecedents of the person –

This ties in with the previous extract from Yates, where the court was talking about indicating that a sentencing judge might think that because of a person’s antecedents they might not be eligible or appropriate for parole.  That is a question for the Executive.  However, what is a question for the sentencing judge is whether a non‑parole period is appropriate.

JAGOT J:   What page of Hoare were you ‑ ‑ ‑

MS SHARP:   I apologise, your Honour.  The bottom of page 54 of the joint book of authorities.  Section 19AB of the Crimes Act.

BEECH‑JONES J:   You have moved from Hoare?  You are now on the legislation?

MS SHARP:   Sorry, yes, I am now on section 19AB.  I apologise.

JAGOT J:   Sorry, you moved from Hoare.  Did you have a page reference in Hoare, or did you not?

MS SHARP:   I did not take the Court to a page reference at that point, just to mention the case in that context.  I apologise, I moved too quickly.  I was reading then from 19AB.  Notably, the language of 19AB and Part IB of the Crimes Act does not refer to concepts of a fixed sentence or additional terms, these are terms that one sees in the judgment of the court below, which come from the New South Wales parole regime.

As previously discussed, the final point to make is that the imposition of sentence is the end of the judicial function in relation to sentencing and thereafter the executive function commences, and that can be seen from the case of Elliott v The Queen 234 CLR 38. I do not need to take your Honours to it, just to note that at paragraph 5 that was the point made there by the Court, and that in the joint book of authorities at page 233.

BEECH‑JONES J:   Madam Director, I think it is accepted, is it not, that sentencing judges can consider the conditions of imprisonment.

MS SHARP:   Yes, your Honour.

BEECH‑JONES J:   And they are matters for the Executive.  It is the Executive that runs gaols and they determine classifications and security regimes and all those matters.

MS SHARP:   Yes, your Honour.

BEECH‑JONES J:   So, what is the essence of the difference between conditions of gaol and release on parole?

MS SHARP:   The conditions of gaol that are to be taken into account must meet the requirements of section 16A(2), they must be known to the court at the time and one sees this with evidence about classifications of prisoners, as was the case here; there was evidence before the court that the respondent was classified in a particular way.  Really, the point about and the distinction with parole is that it is a purely executive function quite separate from the terms of imprisonment, the custody that happens on a day‑to‑day basis.  This is a more significant distinction, which is release into the community on conditions, and there are a number of aspects of that that could not be known to the sentencing judge as at the time the sentence is imposed.

BEECH‑JONES J:   But the sentencing judge does know this though.  The sentencing judge knew that 19ALB was law and set a higher bar for this offender compared to another one.

MS SHARP:   Yes, that is known, and was known.  But as this Court said in Crump, and Knight, and Minogue, in particular, the fact that parole was not to be attainable, and in those cases there was specific legislation in relation to Messrs Knight and Minogue naming the individual, saying you will only be granted parole in very limited circumstances.  That did not make the sentence more punitive or more burdensome.  There is a specific, as it were, carve‑out for the operation of the parole system in this context.

GLEESON J:   Can you show us where in section 16A the Court takes into account conditions of imprisonment?

MS SHARP:   Yes, in our submission, at 16A(2)(m).  Paragraph (m) talks about:

the character, antecedents, age, means and physical or mental condition of the person –

So, in our submission, conditions of custody can be taken into account in that context where ‑ ‑ ‑ 

BEECH-JONES J:   As in, their likely effect on the physical and mental condition of the person?

MS SHARP:   Yes, where known.  If there is a basis – if they are known to the court to meet the relevant evidentiary standard, whatever that may be, that can be taken into account.  One other point to make about the question of custody, is that that is a burden on the offender in the form of perhaps something akin to an extra‑curial punishment.  In addition to the number of days, weeks, months, years a person might spend in custody, because of certain factors, that period of time weighs more heavily.  What we are talking about here is not an extra‑curial form of punishment.  It is the operation of the parole system by the Executive.

GLEESON J:   And what are “any other matters” in the chapeau to subsection (2)?

MS SHARP:   It is very broad, your Honour.  It is in fact any other matters but, in our submission, the common law principles developed in relation to the operation of parole preclude this factor from being taken into account by section 16A.

JAGOT J:   It is not the matters that lead to the “severity appropriate” in (1)?

MS SHARP:   In our submission, it is not, your Honour, for the reasons that I have taken the Court to, from the observations from the court in Morgan and Yates, that to take these factors into account is not to deal with the severity of the punishment that is appropriate in all the circumstances, it is to take into account what is really an extraneous factor, which is how the Executive might determine whether a conditional grant of parole is to be made or not at some point in the future.

JAGOT J:   I thought we looked at minimum penalties recently and something came up about that in addition to “any other matters”, but my memory is not good enough to ‑ ‑ ‑

MS SHARP:   I apologise, your Honour, I did not ‑ ‑ ‑

JAGOT J:   That is all right.

MS SHARP:   I have not read all those, but maybe we can see if we can find something on that point.

GORDON ACJ:   I did not quite understand your answer to Justice Jagot then.  Is it not that the matters that are set out in 16(2), including “any other matters”, are referrable to the:

severity appropriate in all the circumstances of the offence.

to be imposed?

JAGOT J:   Yes, I guess that it is my point.

MS SHARP:   Yes, your Honour.

GORDON ACJ:   I think that was the question you were asked.

MS SHARP:   I apologise.  Yes, it is that ultimately the sentence imposed must be of a:

severity appropriate in all the circumstances of the offence.

but the matters must be relevant to the offender, the offending and the ‑ ‑ ‑

GORDON ACJ:   Correct, but referrable to that inquiry.

MS SHARP:   Yes, your Honour.

JAGOT J:   Just to clarify, it is not that “in addition to any other matters” at large, free‑floating.  I am pretty sure that it relates back to (1).

MS SHARP:   Yes.  I apologise if my answer to Justice Gleeson’s question was too broad in that context.  It is confined and limited by the other parameters of section 16A.

JAGOT J:   Right.  Okay.

MS SHARP:   The other key point about the parole question – in particular, section 19ALB – is that the sentencing judge must not subvert the legislative intent behind the parole provision, and we see here that – as we have explained in the written submissions, or set out in the written submission – the purpose of section 19ALB was to make it more difficult for certain persons to be released into the community, to ensure that they spent more time in custody.  Here, the effect of taking that into account in determining the sentence is to reduce the amount of time that the person will spend in custody.

There is a distinction to be drawn there between the deportation cases, where the fact that somebody is going to be deported may be taken into account, and may be seen to make the circumstances of custody more burdensome, because that is known.  That can be taken into account without subverting the intention or the legislative scheme of removing individuals at the conclusion of their sentence.

BEECH‑JONES J:   Does that intention partly arise in this way, that if the sentencing judge says, I am going to reduce the sentence you would otherwise get because I do not think you are getting released on parole, and the Executive comes along later and says, actually, we might release you on parole, but you were sentenced on the basis that you would not be getting released on parole, so what are we supposed to do now?  Is that the kind of tension that we are talking about between the practical outworking of subverting it?  Is that where we get this kind of chicken and egg thing going on?

MS SHARP:   Yes, in one way, your Honour, it is.  It also goes to show that the predictions about parole are really difficult to make, because in the example posited by your Honour, the Executive does the opposite to what is anticipated.

GORDON ACJ:   When you made submissions at paragraph 39 that this idea that taking into account the prospects of parole can subvert the relevant legislative scheme for parole, does that include what Justice Beech‑Jones just put to you?

MS SHARP:   Yes, your Honour.

GORDON ACJ:   And did that also include removing, in effect, the purposes of parole – that is, rehabilitation and the like, and the prospects of rehabilitation?

MS SHARP:   Yes, the observation that his Honour Justice Beech‑Jones posited is taken into account by the Executive, that removes from them the opportunity to discharge their functions and enact the purposes of parole.

BEECH‑JONES J:   Put another way, it means that if the Executive did release you contrary to the assumption made by the sentencing judge, you might end up having served a sentence that was not appropriate in all circumstances?

MS SHARP:   Yes, that is really the ultimate point, that taking into account these factors will impact or vary the sentencing function in a way that is impermissible, that means it does not comply with Part IB.  If your Honours would excuse me, I have traversed a number of the points that I was going to make.

Returning, then, to the parole provisions within the Crimes Act, can I take the Court briefly to the considerations that are made when parole is determined.  This is in section 19ALA, page 66 of the joint book of authorities.  There, we see a list of a large number of matters that the Attorney‑General may have regard to when making a decision in relation to parole.  As the Court will see, a number of those matters are not capable of being known or knowable as at the time of sentence.  They are a distinct range of factors.  Some of them are similar to factors that are considered as at the time of sentence, but not all of them.  That is merely to make the point that it is a different set of considerations for a different set of reasons that the Executive makes when determining whether to make a grant of parole or not, and the conditions on which parole might be granted. 

That is highlighted in a different factual scenario.  Here, the facts are compressed:  there was a sentence of five years with a non‑parole period of three years, because of the backdating of the sentence, by the time the appeal came on there had already been a decision made about parole.  But consider another case which might quite also, equally, occur, which is a sentence of, say, 20 years with a non‑parole period of 15 years.  If the Court of Criminal Appeal is right, and consideration about whether parole could be granted is to be taken into account, it is difficult to see how that might be reasonably done when the decision to be made is 15 years in the future.

How can a sentencing judge possibly know what might be the case in terms of not just the policy and the test for parole in 15 years’ time – as your Honour Justice Gordon pointed out, these things change from time to time – but what the facts ‑ ‑ ‑ 

GORDON ACJ:   The legislation might change.

MS SHARP:   The legislation might change ‑ ‑ ‑ 

GORDON ACJ:   There might actually be legislation, as there was in Minogue.

MS SHARP:   Correct.  Indeed, your Honour.  But also the facts, which will be before the person making the parole decision – whoever that might be, because the person making the decision may also change – will not be known or knowable at the time of sentence.

GORDON ACJ:   But also, the conduct of the offender might have changed over the period of time.

MS SHARP:   Absolutely, your Honour, and that is borne out or, really, highlighted by, actually, part of section 19ALB, if I can take the Court to that, which is the key provision here.  Section 19ALB, page 68 of the joint book of authorities.  Subsection (1) confirms the test, that:

Despite any law of the Commonwealth, the Attorney‑General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney‑General is satisfied that exceptional circumstances exist –

And subsection (2), here, is relevant to your Honour Justice Gordon’s point:

This subsection covers the following persons:

(a)a person who has been convicted of a terrorism offence –

as defined:

including a person currently serving a sentence for a terrorism offence –

So, as at the time of sentence, it will be obvious if a person falls within subsection (2)(a):

(b)a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism) –

The identity of that person may or may not be known as at the time of sentence, it is possible that they may be on a control order, but it might not be known, and:

(c)a person who the Attorney‑General is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.

Now, the respondent here fell within paragraph (c), and that was on the basis, as the Attorney found, of aspects of the offending, of the conduct engaged in in Syria.  But it will not always be the case that at the point of sentencing, a person will necessarily fall within subsection (2).

It is possible, for example, that an individual might go to gaol for fraud offences and be radicalised in gaol and start making statements and comments that mean they have made statements or carried out activities supporting or advocating support for terrorist acts during their term of imprisonment.  This really just highlights the speculative nature of taking into account what the Executive might do for a grant of parole in the future when imposing the sentence.

To touch briefly on the legislative intent of section 19ALB, it does not appear to be in dispute that its intent was to ensure the protection of the community by requiring a test of exceptional circumstances before certain persons would be granted parole, and we have set out those provisions or those materials at paragraphs 54 and 55 of the written submissions.  I do not propose to take the Court through those.

I propose now then to really go to the judgment below and take the Court through how we say the court fell into error and how that developed.  The judgment is found in the core appeal book.  In our submission, the first 38 paragraphs of the judgment are dedicated to the question of manifest excess.  No issue is taken with the analysis or the outcome in that regard.  The sentence imposed, five years with a non‑parole period of three years, was within range and appropriate in all the circumstances.  That is as the court held at paragraph 38, which is on page 83 of the core appeal book:

Weighing these various factors, and without giving significant weight to the sentencing in other cases, it is not possible to regard the sentence imposed, subject to one qualification which follows, as manifestly excessive.

Of course, we do not agree that there was such a qualification, but what follows then in the judgment is a discussion of the issue, and it continues to be relatively orthodox.  The court sets out the provisions from the Crimes Act dealing with parole, when they are and are not to be imposed, and how they operate.

The court then, at paragraph 48, which is on page 88 of the core appeal book, posits the three questions that it thinks are raised by the appeal, and at paragraph 49 indicates that there are three principles that must be addressed in terms of answering those questions.  Paragraph 50, I would like to take the Court to.  First sentence reads:

First, it is no part of the sentencing judge’s function to have regard to the likelihood or otherwise of the offender being granted parole by the relevant executive authority on completion of his non‑parole period.

In our submission, a correct statement of the law, but that is contrary to what the court ultimately found.  Secondly, the court says, and this is at paragraph 51:

the possibility, or likelihood, of deportation is to be disregarded.

That is the situation in New South Wales.  Deportation is not ultimately relevant to the disposition in this case, so I do not propose to go into it in any detail.  Thirdly, at paragraph 52:

a sentencing court will have regard to the likely circumstances attending any period of incarceration.

This is your Honour Justice Beech‑Jones’ point.  Then, the court considers ‑ ‑ ‑

GORDON ACJ:   You take no issue with 50 to 52?

MS SHARP:   We take no issue with 50 to 52.  That is correct, your Honour, but for the final sentence of 52, which is really an indication of where the court was heading, or where his Honour Justice Basten was heading.  Final sentence reads:

At least on one view, fixing a non‑parole period for a person who has no realistic possibility of release, even if her or she maintains an excellent record of behaviour whilst in prison and undertakes appropriate courses, is likely to adversely affect the offender and his or her mental condition.

We say that that as a statement is inconsistent with what this Court held in Crump, and Minogue and Knight in relation to the impact of the inability to obtain parole, which is that it does not make the sentence more punitive or more burdensome.  That is really ‑ ‑ ‑

GLEESON J:   I thought you also said that that sentence was not supported by evidence?

MS SHARP:   In this particular case there was no evidence, that is correct, about the impact of the decision on the respondent.  The court then go through a number of cases.  Perhaps to take this Court, really, to the nub of the issue, the ultimate finding with which we take issue is in paragraph 84, which is on page 99 of the core appeal book.  At paragraph 84, Justice Basten referred to Shrestha:

In the language of Brennan and McHugh JJ in Shrestha –

Noting that they were in the minority in that case:

the Court should not be “blinkered” as to the practical consequences of imposing a non‑parole period which has little if any utility.

I will come back to the utility point in a moment.

The expectation (now a reality) that parole would be refused, combined with the fact that the applicant has served most of sentence in HRMCC –

The High Risk Management Correctional Centre, I will come back to that point, as well:

(which was taken into account by the sentencing judge), means that he has suffered a considerably more onerous period of imprisonment and, given his ineligibility for release on parole, will continue to suffer more onerous conditions of imprisonment.

BEECH‑JONES J:   Can I ask, more onerous than what?

MS SHARP:   That is a very good question, your Honour.  It is not clear.  More onerous, perhaps, than somebody who has an expectation that they might be granted parole, but that expectation is also, in our submission, not available.  There is no right to parole, therefore there can be no reasonable expectation to have a grant of parole, and following that tree to its logical conclusion, any refusal of a grant of parole cannot really dash the hopes that do not exist.

BEECH-JONES J:   If it is more onerous than contemplated by the sentencing judge – it is odd because there is no doubt that the sentencing judge would have known at 19ALB.

MS SHARP:   Yes, your Honour.

STEWARD J:   Is “ineligibility” the right word there?  He is eligible for parole, it is just there are different statutory criteria.

MS SHARP:   Indeed, your Honour.  It is a much higher bar.  There are a number of issues with the paragraph.  One factual matter, just by way of observation, certainly when he was sentenced, the respondent was in the High Risk Management Correctional Centre, but by the time of the appeal he had been reclassified and was no longer serving time in that centre. 

GORDON ACJ:   Was the appellate court aware of that?

MS SHARP:   Yes, your Honour. 

GLEESON J:   Also, the fact of what has actually happened does not seem to be relevant to what would be taken into account at the time of sentence.

MS SHARP:   No, your Honour.  That is entirely correct, and our case.  It is simply not relevant to the sentencing task, the judicial function, in imposing a sentence to consider what the Executive might or might not do at the point in time when it comes to consider parole, by reference to whatever legislation, policy guidelines and evidence is available to the person considering that application at that point in time in the future.  Returning to the utility point, I just wanted to briefly make some observations ‑ ‑ ‑ 

BEECH-JONES J:   Sorry, can I just – are you finished with the judgment? 

MS SHARP:   No, I will come back to paragraph 85.

BEECH-JONES J:   All right, I am sorry.

MS SHEPHARD:   I just wanted to make an observation about the first sentence, the utility of parole.  It is said there that, by reference to the minority view in Shrestha:

the Court should not be “blinkered” as to the practical consequences of imposing a non‑parole period which has little if any utility.

And this comes back to your Honour Justice Beech‑Jones’ point about a court making an assumption about what would have with parole as at the time of sentencing, and therefore making some observations or, perhaps, taking that into account.  The fixing of a non‑parole period is part of the sentencing function.  It is mandated by section 19AB, but for the circumstances in subsection (3).

The utility of that is that it provides the goal posts, as it were, to the Executive and says, this is the minimum term that justice requires – and that is a phrase I will come back to, which is a phrase, in the case of power, picked up in multiple cases throughout the authorities relied on – to be served in custody.  It is not an indication of a shorter version of the sentence or of a different sentence to be imposed, it merely provides the goal posts for the Executive as to when the Executive can act to consider whether or not to grant parole. 

GORDON ACJ:   Are the propositions these, as I understand it, that is, there is really in truth only one sentence that is imposed, and that is not altered by the paroling authority?  So, for example, if they breach parole they go back in for the term of the imprisonment.  The term remains the term of imprisonment. 

MS SHARP:   The term remains the term.  That is so, your Honour, and that is the case whether a person has done the majority of their parole.  Taking the sentence of five years with a non‑parole period three years, if the person, for example, is paroled on the three‑year point, they have two years of parole to serve, they have two years of their sentence that they have not yet served.  If that parole was breached at, for example, the 18‑month mark, it is not that they serve only for six months, the Parole Board may pull back the entire two years.  So, the sentence still remains the five‑year sentence.

GORDON ACJ:   And if there is this intervening change, either in conditions or the underlying legislative scheme for the grant of parole, that itself des not affect the term of imprisonment that was imposed at the time of sentencing.

MS SHARP:   That is so, your Honour.  In our submission, yes.

GORDON ACJ:   And then the third proposition you make is there is no right or entitlement to parole.

MS SHARP:   That is correct, and therefore there can be no reasonable expectation of a grant of parole, therefore the so‑called dashing of hopes, as it were, is really not a relevant factor in ‑ ‑ ‑

GORDON ACJ:   Come back to this passage about utility, then, in Shrestha against those propositions.

MS SHARP:   The sentencing task is to impose the sentence, which is the head sentence, and identify the minimum term that justice requires to be served before any conditional release on parole.  That fixing of that non‑parole period has utility because it provides those goalposts to the Executive.  Whether the Executive chooses to act on it or not, whether the Executive changes the law, changes the range of factors in the intervening period or not, it is important for that period to be set.  This really goes back to the historical situation where a sentence was imposed and no minimum term was imposed, so, in effect, the capacity for the Executive to act was at large.  We see in the development of the authorities the gradual imposition of non‑parole periods and there are a number of cases where it was the imposition of a non‑parole period many years after the sentence that was the subject of judicial consideration.

GLEESON J:   That first sentence might suggest that the comparator that Justice Basten is making about more onerous conditions is a comparison with one in which a non‑parole period might be thought to have utility.  Is that one way of reading paragraph 84?

MS SHARP:   That is one possible way, but, really, what paragraph 84 is fixing on in the final sentence is the impact it has had on the offender.  So, whether it is of utility, perhaps that is just another way of saying the expectations of the offender in having a grant of parole – they receive their sentence and they think, right, I have a sentence of five years with a three‑year minimum, I am going to go home in three years.  We know that is not as reasonable expectation because there is no right, but that might be the utility that an offender sees in it, but really what paragraph 84 is fixing on is the impact of the decision on the offender, rather than a legal utility.

Having discussed, then, paragraph 84, we see in the first sentence of paragraph 85 how that then flows on to the error ultimately that the court, in our submission, made.  So in paragraph 85:

In my view, that warrants –

And we read that as being ‑ ‑ ‑

GORDON ACJ:   What is the “that” referring to?

MS SHARP:   The “that” is the final part of – the final phrases in 84:

given his ineligibility for release on parole –

That he:

will continue to suffer more onerous conditions of imprisonment.

Which, as your Honour Justice Beech‑Jones pointed out, may be a distinction with that found by the sentencing judge who found that the conditions would be onerous because of his being sentenced to the High Risk Management Centre, but not because of the parole:

In my view, that –

Those onerous conditions:

warrants a reduction in the sentence imposed by the sentencing judge.

In our submission, that is simply incorrect.  That is visiting upon the sentence task – varying the sentencing task by reference to the executive function that comes later in time.

BEECH‑JONES J:   If you are moving away from the judgment, can I ask you about paragraph 88?

MS SHARP:   Yes, your Honour.

BEECH‑JONES J:   Maybe just take this on board.  My query is:  are the first two sentences consistent with Kentwell?

MS SHARP:   Yes.

BEECH‑JONES J:   We seem to be not resentencing anyone, we seem to be saying we are going to fiddle with a non‑parole period.  Had his Honour not found error, and if they had found error was there not responsibility to resentence?

MS SHARP:   If they found error, then there is a responsibility to resentence according with law, yes, your Honour.  But the error that was found, in our submission, is no real error, but ‑ ‑ ‑ 

BEECH‑JONES J:   I know you say that.  You say you should not have been in there. I am just wondering if, on his Honour’s logic, it was not a task which may, you would say, highlight the problem.  If that was an error, you just could not simply say there is no basis to interfere with the non‑parole period, you have to start again, do you not?

MS SHARP:   Yes, but perhaps what his Honour did in a short‑handed way was to start again and say, well, I think four years is appropriate and three years is the appropriate non‑parole period but has not actually stepped through that process.  But, yes, your Honour, if that is the resentencing then, without having stepped through the entire process of Division 5 of Part IB, there is a problem with that, yes.  One sees here the language of the New South Wales system with the additional term.  That is not a concept, that is part of Part IB.  That is a particularly New South Wales term.

I have mentioned a number of occasions the concept that the non‑parole period is the minimum term that is required to be served and I just wanted to take the Court to where that comes from just to make good that proposition.  It starts with the case of Power but ultimately the best expression of it, or good expression of it, is found in Hili, at paragraph 40. Hili, which I have taken the Court to, it is at tab ‑ ‑ ‑ 

GORDON ACJ:   Tab 11.

MS SHARP:   Tab 11.  Thank you, your Honour.  This is at page 257 of the joint book of authorities, paragraph 40, reference there to:

The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre‑release period under a recognisance release order.

We say the same conditions apply to the determination of the non‑parole period:

As the Court of Appeal rightly said, s 16A(1) and (2) “make it plain that all of the circumstances, including the matters in the non‑inclusive list in s 16A(2), must be taken into account in making recognisance release orders just as they must be taken into account in imposing a sentence of imprisonment”.  In determining what recognisance release order is to be made, s 16A(1) requires the sentencing court to “make an order that is of a severity appropriate in all the circumstances of the offence”.  What is the “severity appropriate” is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen.

If I could take the Court then over the page to the end of paragraph 44, the last four or five lines of paragraph 44:

It is wrong to begin from some assumed starting point and then seek to identify “special circumstances”.

That is, to impose the non‑parole period or fix the non‑parole period:

Rather, a sentencing judge should determine the length of sentence to be served before a recognisance release order takes effect by reference to, and application of, the principles identified by this Court in Power –

I apologise, would your Honours just excuse me for just one moment.  I am indebted to my learned junior Mr Holdenson.  If I can take the Court just briefly to Knight v State of Victoria 261 CLR 306, which is in tab 13, paragraph 8, page 302 of the joint book of authorities. This is the phrase I was searching for, but not finding, before. Paragraph 8:

When sentencing Mr Knight in the Supreme Court, Hampel J correctly characterised a minimum term not as a period at the end of which the prisoner was to be released but rather as “a period before the expiration of which, having regard to the interest of justice, he cannot be released”.  His Honour noted that the nature and purpose of a minimum term was that stated in Power v The Queen:  “to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence”.

That really just serves to highlight the distinction between the judicial function of imposing a sentence and the executive function in granting parole on the relevant conditions for the purposes for which the parole is made in a particular case.  Would your Honours just excuse me a moment, I will just confirm which parts of the oral outline we have not actually covered, some of which has been out of order, and I apologise for that.

If I could take the Court – I apologise, thank you for your patience – to Minogue 268 CLR 1, there are some passages in Minogue that I would seek to take the Court to – and that is at tab 14 of the materials.  This really just draws together the points that I have been seeking to make this morning.  Can I take the Court to the joint judgment, which your Honour Justice Gordon, I am sure, well remembers.  Just to make an observation that the context for the decision in Minogue can be found in paragraph 11, which was that:

Section 74AB is directed to the Board –

that is, the Parole Board:

It restricts the circumstances in which the Board may make a parole order under s 74 or s 78 of the Act in respect of the plaintiff.

So, we have a similar provision under consideration here which restricts the circumstances in which Attorney‑General can make the parole order.  Skipping forward, then, to paragraph 14, which is at the bottom of page 326 of the joint book of authorities – and this is to confirm the point that:

Since at least the 1970s it has been recognised that there is a distinction between a judge exercising judicial power in sentencing, and the executive determining whether a person, still serving a sentence but eligible for release on parole, should be released on parole.

To confirm the matters that we have been discussing this morning – I will not take the Court to the paragraphs, but just to make the point that at paragraph 15, parole is an executive function and:

release on parole . . . is a consequence of a determination –

of the Executive.  At paragraph 16, the confirmation that there is no right or entitlement to parole.  At paragraph 17, that release is a matter for the Executive.  And I will take the Court through paragraph 21 just to conclude, which makes the point about the nature or the circumstances of the grant of parole on the circumstances of custody.  At paragraph 21:

Further, s 74AB did not make the plaintiff’s sentence of life imprisonment “more punitive or burdensome to liberty”.  A sentence of life imprisonment is the maximum penalty that can be imposed in Victoria.  Where a non‑parole period is imposed, it forms part of that overall sentence.  Whether a prisoner serves the rest of that sentence in prison or at large on parole, once a non‑parole period has expired, is a matter for the executive.  The plaintiff retains his ability to make an application for parole.  But he has no right to be released on parole.  And while the plaintiff might have hoped that the previous statutory regime would still be in force when the non‑parole period expired, he had no right or entitlement that that regime should continue to apply to him.  The plaintiff has not lost any opportunity to be considered for release on parole – he is still eligible to be granted parole, by reason of the expiration of the non‑parole period, but the circumstances in which parole may be granted by the executive have been severely constrained.  His punishment is no more severe; it remains a sentence of life imprisonment.

In our submission, that paragraph of Minogue really highlights the error that the Court of Criminal Appeal fell into.

Unless there are any further matters with which I could assist the Court, those are the submissions I would seek to make.

GORDON ACJ:   Thank you.  Ms Avenell.

MS AVENELL:   Your Honours, might I start by taking you to the paragraph of Justice Basten’s reasons that the Director took your Honours to, in particular being paragraph 84, which is the core appeal book at page 99.  Here, Justice Basten said that:

the Court should not be “blinkered” as to the practical consequences of imposing a non‑parole period which has little if any utility.  The expectation (now a reality) that parole would be refused, combined with the fact that the applicant has served most of his sentence in the HRMCC (which was taken into account by the sentencing judge), means that he has suffered a considerably more onerous period of imprisonment and, given his ineligibility for release on parole, will continue to suffer more onerous conditions of imprisonment.

It was that that warranted:

a reduction in the sentence imposed –

Your Honour Justice Steward raised the issue of what is meant by “given his ineligibility for release on parole”, and I have to concede there is a degree of imprecision in Justice Basten’s words.  He is, in a judicial sense, ineligible for parole ‑ ‑ ‑ 

STEWARD J:   Should we read it as practically ineligible?

MS AVENELL:   Yes, or ineligible in the way things have gone, in that he has been refused, and as the reasons in other parts of the decision indicate, the court was satisfied about the unlikelihood that he would be released on parole.  Also relevant to this paragraph, your Honour Justice Beech‑Jones raised “more onerous” than what?  In my submission, the suggestion of onerousness is in drawing a comparison with the conditions of custody that apply to the usual offender – and that is seen in particular because of the reference to the HMRCC – the other references throughout Judge Baker’s reasons and, to the extent they are adopted by the Court of Criminal Appeal as well, it is the actual conditions in which he had to spend the custody that were considered to be “onerous”.

BEECH‑JONES J:   If that is so, because that was known to the sentencing judge and taken into account, why did that warrant a reduction?

MS AVENELL:   The onerousness of custody?

BEECH‑JONES J:   Yes.  Because it had already been taken into account.

MS AVENELL:   It had been taken into account when Justice Baker was considering the maximum sentence that he imposed, and the non‑parole period.  The non‑parole period was when Justice Baker considered that he would have a prospect of parole, and, in my submission, the change – which I will come to detailing more – is the reality of that prospect, or the likelihood of that prospect.

Although these paragraphs 84 and 85, and indeed Justice Basten’s reasons generally, are not directly cast by reference to Part IB of the Crimes Act, in my submission, it can sit comfortably with it.  As the Director took your Honours to, the particularly pertinent provision is section 16A ‑ ‑ ‑

BEECH‑JONES J:   Just on that – and I asked the Director about 88.  You see, the language of 88 reads as though the task is – firstly, it is, we are just correcting what is said to be, quote, “the error”, but it is starting with a non‑parole period and fiddling with the additional term, whereas, certainly under the Commonwealth scheme, you fix the sentence, and then you fix the non‑parole period.

MS AVENELL:   Your Honour, I have to acknowledge that Justice Basten, although he had found error in the sentencing judge’s reasons – not manifest excess – he did not engage in what one would expect as the usual process of resentencing required by Kentwell.  He did not go back to the beginning, as such.  He has done it, or at least expressed it, in a much more compendious way.

BEECH‑JONES J:   It more reads as though the approach was to treat, as it were, the non‑parole period and additional terms as different components in 88, when really the scheme is that there is one sentence – I think it was Mr Minogue got life – which was five years, and then a fixed non‑parole period.  That is what I wanted to raise with you about 88.  Anyway, take it on board, Ms Avenell, because I know that there are other parts you want to take us to.

MS AVENELL:   Your Honour, I do not think that there is more I can say about it than it is not the usual process of resentencing that one would expect, and he has the outcome but perhaps not the reasoning that should have gone into it.  That is not directly the complaint that the Director makes.

In addition to Hili, which the Director took your Honours to, might I also take your Honours to the decision of this Court in Johnson, which is at tab 16, page 366.

GORDON ACJ:   I think it might be 17.

MS AVENELL:   Tab 17, sorry.

GORDON ACJ: This is (2004) 78 ALJR 616?

MS AVENELL:   Yes, your Honour, at paragraph [15]:

The proposition contained in the first of the appellant’s ground is largely uncontroversial:  that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable.  That common law principles may apply follows from the use of the words “of a severity appropriate in all the circumstances of the offence . . .” in s 16A(1) and the introductory words “In addition to any other matters . . .” to s 16A(2) of the Act.

The effect of serving a term of imprisonment and the conditions under which an offender serve that term of imprisonment are relevant matters to be taken into account by a sentencing judge.  That is at least the case where the effect of the sentence and those conditions is shown to be different from and more onerous than the effect undergone by other prisoners.  That is what I say that Justice Basten was looking to here.

The way that I say section 16A accommodates this is that severity appropriate in all of the circumstances of the offence, when we are talking about a sentence of imprisonment, is going to be marked or tested against the usual experience of imprisonment for offenders.  Depending on the circumstances, the conditions of that imprisonment for the individual may be relevant, are also relevant to what I put are the more forward‑looking components of subsection (2) too.

Here, subsection (j) is specific deterrence, and the conditions of custody can have a relevance to that, because of the salutary effect that the law at least hopes that a sentence will have on a person, and the more onerous the conditions of that sentence or imprisonment, the more salutary that effect might be.  It can have a relevance to general deterrence and the potential for such custody to operate on others.  It has a relevance to the adequacy of punishment.  If the term of punishment is more onerous than usual, it is going to be a more or more than adequate punishment.

The subparagraph that the Director acknowledges onerousness might go to, being age, physical and mental condition, in subparagraph (m), also has a relevance to prospects of rehabilitation in a similar way that it has a relevance to specific deterrence, for the general reason that the more onerous or unpleasant the experience of imprisonment, the more its salutary effect and salutary value might be.

A sentence where onerousness was a consideration as it was here, looking in a more general sense, the judge sets a head sentence and a non‑parole period, and that is what the judge has in mind as the actual period of imprisonment, with the onerousness attending that, and also sets the non‑parole period as the time after which the offender has the prospect of parole.  The measure of those prospects, in my submission, must have a relationship with the onerousness of the custody.

This is how I put that the prospects of parole have a potential relevance in section 16A.  It is not the simple fact of the prospect or otherwise of parole, but what that actually means, then, in practical terms for the offender.  This analysis is by reference to onerousness, because that was the pertinent feature here – that is what this case is about.  But theoretically, and depending on the circumstances, it could be some other factor with a relationship to the prospects of parole that could be considered under section 16A.  But in my submission, your Honours do not need to be troubled with that, because this case can be confined to what this particular case was about and his Honour’s reasons, which is about onerousness of custody.

GORDON ACJ:   If we test that more generally, assuming for the moment it can be narrowed by reference to being onerous, or the extent to which it is onerous, the Director puts against you a number of propositions, but one of the principal ones is that it is so difficult to identify it as a matter of substance, even if you are right about section 16A, because, for a range of other things – if it is a much longer sentence you have the difficulties of time, change in legislation, change in policy, change in the offender’s own conduct while they are in custody both positive and negative.  Does the submission you just put to us accommodate those matters, or are those matters irrelevant?

MS AVENELL:   No, the submission does accommodate it.  Can I address it when I – they are topics that I was coming to in my submission.  Can I wait and see if they satisfy what your Honour’s concern is and, if not, I will come back to answering it – well, attempting to answer it in a better way.

GORDON ACJ:   Absolutely.  Thank you.

MS AVENELL:   The Director puts propositions to the effect of not having a right to parole and there being no reasonable expectation of parole, especially with section 19ALB, and then drawing especially from authorities Crump, Knight and Minogue.  If I can take your Honours to Crump at tab 9, firstly at page 219, paragraph 40, the last sentence is:

Crump and Baker were sentenced to imprisonment for life and in his remarks on sentence Taylor J made strong statements to the effect that they should die in gaol.

Then paragraph 41, at the top of page 220:

“Whilst s 463 remained in force, the judicial power to impose sentence upon a person convicted of murder was confined:  the only sentence that could be passed was that the offender suffer penal servitude for life.  Upon passing that sentence the judicial power was exhausted.

Then, later in that paragraph, they say:

But in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome to liberty.”

Your Honours, that is the context in which I suggest this decision has to be understood, and that is that the offenders were sentenced to life in prison and that was the only sentence that could be imposed, and it was in that context that – and it is actually quoting from Baker, that no later legislation could:

make that sentence of life imprisonment more punitive or burdensome to liberty.

In my submission, that is a different matter than what we are talking about here, which is the onerousness of custody in not a life sentence, meaning, life sentence as the only option for sentencing.

Then, looking at Knight at tab 13, paragraph 29.  The context of Knight was that Mr Knight was sentenced to a period of life imprisonment, but with a non‑parole period.  I might take your Honours instead to paragraph 3, which is on page 301.  He was then subject to section 74AA of the Corrections Act, which very much confined the ability for the Executive to grant him parole.  Then the issue in this case is in paragraph 4, in the last sentence:

Is s 74AA invalid on the ground that it is contrary to Ch III of the Constitution?

That is again the context here.  It is not an appeal against the sentence or a consideration, as we have here, of what are relevant considerations on sentence.  This was a challenge to the constitutional validity of legislation restricting parole into Mr Knight’s period of imprisonment.  We are patently not making a constitutional argument.

That context is a context in which the other parts of the decision that are relied on by the Director, in particular, 29, where it comes back to the idea that provisions making it difficult for an offender to obtain parole are not “more punitive or burdensome to liberty”, but this again was a circumstance where the person was sentenced to life imprisonment and the reference to being “more punitive or burdensome to liberty”, in my submission, is a different thing than what we are considering here.

STEWARD J:   Can I ask you a question.  You seek to make the issue with respect to parole relevant – as a species of something which is more onerous, here – via the generalised paragraphs in 16A(2).  But in the context of Part IB where the issue of parole is dealt with in Division 5 expressly, surely, if parole was to be relevant, it would have been listed, particularly having regard to the state of the common law.

MS AVENELL:   Your Honour, I am not saying that the bare fact of parole is a factor relevant concerning the – the bare fact of the prospects of parole.  What I am saying is that it is the consequences and the circumstances that attend those prospects of parole that are what may be seen as relevant to setting the sentence that is appropriate in all the circumstances.

STEWARD J:   If you are right, does it mean that it would need to be taken into account in every case?

MS AVENELL:   No.  Do you mean section 19ALB?

STEWARD J:   Let us start with every section 19ALB case.

MS AVENELL:   No.

STEWARD J:   No.

MS AVENELL:   I am not saying that, and Justice Basten in the Court of Criminal Appeal did not say that either.

STEWARD J:   So, why here, as distinct from section 19ALB cases?

MS AVENELL:   Because of two factors.  One of those I can come to now.  That is that here, Mr Hatahet had been in custody at the High Risk Management Correctional Centre, where conditions were extremely onerous, significantly more so than for the general prison population – I have taken these expressions from the Court of Criminal Appeal’s judgment.  These were the findings of Judge Baker, and they were not disputed by the prosecution on appeal, and they were adopted by the CCA.  That is the first reason that there was ‑ ‑ ‑

STEWARD J:   But you accept that was taken into account by the sentencing judge?

MS AVENELL:   Yes.

STEWARD J:   Yes.

MS AVENELL:   That being why this case might separate from others.  One, it was the demonstrated onerousness, so there was an evidentiary basis for those findings in this case.  Further, Justice Baker considered the onerousness of custody was specifically relevant to the respondent’s prospects of rehabilitation, which he considered were fairly good, and also specifically relevant to specific deterrence, which was a limited consideration in this sentencing exercise.  That is the first reason.

The second reason is the degree of certainty in this case of the unlikelihood of parole.  Can I address that by looking more broadly, firstly, at the regime in place.  In the usual case ‑ ‑ ‑ 

BEECH-JONES J:   Can I just ask you about the “more onerous”?  You see, the sentencing judge said it is “more onerous” than the general prison population and took that into account.  What paragraph 84 seems to suggest is that the error was in not comparing the non‑parole period, or the likelihood of release of non‑parole of your client with the general prison population.  So, we went from a comparison of the conditions of gaol to a comparison of the likely period of time you are going to spend in gaol.

MS AVENELL:   Your Honour, that is not entirely the way that I would put the argument.  The way that I would put it, or what we can draw from Justice Basten’s reasons, is that his Honour is finding that Judge Baker saw that, after three years of his onerous custody, Mr Hatahet would have a prospect of parole, but as things have actually turned out – and this is not a comparison to other offenders, this is just in his own circumstances – that has not been borne out.  He has not – that prospect is significantly lesser than Judge Baker would have had in mind.

BEECH-JONES J:   Right.  So, the “more onerous” is are saying – it turns out it is going to be more onerous than Judge Baker envisaged.

MS AVENELL:   Because of the additional length, yes.

BEECH-JONES J:   Right.  And that makes an assumption, does it not, about the nature of what a non‑parole period is, that seemed to have been treated by both – accepted by both Judge Baker and the Court of Criminal Appeal, as opposed to, say, what Justice Hampel said it was in Knight?

MS AVENELL:   By that, does your Honour mean they are treating it more as something that will actually happen than something that Mr Hatahet might have a prospect of getting – parole?

BEECH-JONES J:   That is right.  As, effectively, some sort of a thing to which – not something you can expect to get released on.  They are treating it as something like that, as opposed to simply a mere statement of the minimum period a judge says you have to spend in gaol.

MS AVENELL:   I am not sure I am following, your Honour, I am sorry.

BEECH‑JONES J:   All right.  Sorry, I will let you take your course.  I am just querying whether the idea that somehow things have turned out more onerous than what Judge Baker sentenced him on may contain an assumption about what the nature of a non‑parole period is.

MS AVENELL:   It may contain – it may, but, and it is a point I was going to get to here, that this is a legislated different setup for parole than the usual.

BEECH‑JONES J:   I see.

MS AVENELL:   And that is where the answer to it comes in.

GLEESON J:   Are you going to take us the sentencing remarks to demonstrate what Judge Baker took into account?

MS AVENELL:   I can, yes.  I can do that now.  Can I just have a moment to sort references ‑ ‑ ‑

BEECH‑JONES J:   I think page 57 might be at least one of the references of the sentencing judge.

MS AVENELL:   It is, your Honour.  That is one – that is the last one I have noted.  At page 47 of the core appeal book, this is setting out some of the content of the evidence that was on sentence and giving some content and character to the onerousness of the custody, in the first two paragraphs of that page.  Then, as his Honour Justice Beech‑Jones mentioned, core appeal book page 57 ‑ ‑ ‑

JAGOT J:   Possibly 56, second paragraph.

MS AVENELL:   Your Honour, that is actually referring to the respondent’s experience in Syria in 2013.

JAGOT J:   No, I understand that, I just meant to his prospects about reoffending.

MS AVENELL:   Yes, as the more general finding, yes ‑ ‑ ‑

JAGOT J:   Yes, that is all I meant.

MS AVENELL:   But addressing the onerous conditions of custody is more at the top of page 57.

JAGOT J:   Yes.

GLEESON J:   Does his Honour say anything about the likelihood of parole?

MS AVENELL:   No.  Your Honour, then, where the Court of Criminal Appeal effectively adopts Judge Baker’s assessments or describes them, is at ‑ ‑ ‑

STEWARD J:   Paragraph 26?

MS AVENELL:   Yes.  Paragraph 26 on page 80.

JAGOT J:   Paragraphs 23, 26?

MS AVENELL:   And paragraph 23 on 79, which is essentially repeating the top of page 57 of Judge Baker’s reasons.  Then, the concluding paragraphs that we have already mentioned, paragraph 84.

GORDON ACJ:   Ms Avenell, I think we probably distracted you from your path.  You were answering a response to Justice Steward’s questions, and you were explaining that there were two reasons why this case was different, and at the proposition you are putting to us does not apply across the board, and you gave two reasons.  One was the demonstrated onerousness.  Does that complete that aspect of that answer?

MS AVENELL:   It does, and I now will come to the second part of it.  The second part is to look at the parole scheme and the findings that were made in this case about the parole scheme.  In the usual case, firstly, if your Honours look at the joint book of authorities at page 64 first ‑ ‑ ‑

GORDON ACJ:   Is this section 19AKA?

MS AVENELL:   It is.  And then aligned with that, in the usual circumstances, the Attorney‑General as the parole authority would also consider section 19ALA on page 66, over to 67.  But this is not the usual circumstance, because here the Attorney‑General is precluded from making a parole order in relation to people covered by section 19ALB(2):

unless the Attorney‑General is satisfied that exceptional circumstances exist to justify making a parole order.

Even if not limited to compassionate grounds not directly related to questions of rehabilitation, which was where Justice Basten put the possibility of a person seeing exceptional circumstances, and I would have to acknowledge it would not necessarily be limited to that.  His Honour also said:

the circumstances engaging the generic purposes of parole will not suffice, unless there is some matter specific to the circumstances of the offender.

The difference here is that – not the limitation about compassionate grounds, but I would endorse his Honour’s remarks that there would have to be something above and beyond the general purposes of rehabilitation to come within “exceptional circumstances”.  That sets ‑ ‑ ‑ 

BEECH‑JONES J:   You would still consider the factors in 19ALA, though, would you not?

MS AVENELL:   You would have to consider the factors, yes.

BEECH‑JONES J:   Yes.

MS AVENELL:   Because to grant parole they are the relevant factors, so the decision‑maker would have to consider them, but also consider, over the top of that, whether there are exceptional circumstances.

STEWARD J:   So, section 19ALB is a cumulative test?  It is cumulative on top of section 19ALA?

MS AVENELL:   I would put it as cumulative, yes.

STEWARD J:   Yes, I see.  So, that treats people, subject to 19ALB, perhaps, in a separate category, but I think you said to me that not every section 19ALB case would merit a requirement to look at prospects.

MS AVENELL:   That is right.

STEWARD J:   So, what – is it the 19ALA factor here, the onerousness of the prior incarceration?

MS AVENELL:   It is also, your Honour, in this case, the high degree of certainty that there was of refusal which was demonstrated in this case, because by the time that Mr Hatahet was in the Court of Criminal Appeal, he had been refused parole, and Justice Basten found or considered that the Attorney‑General was “most unlikely” to make a parole order in relation to Mr Hatahet:

absent the kind of circumstance posited in Shrestha –

R v Shrestha (1991) 173 CLR 48:

as rare, involving compassionate grounds not directly related to questions of rehabilitation.

Also, the Director did not suggest there were any exceptional circumstances that would justify the making of a parole order in relation to Mr Hatahet.  So, those were the specific ‑ ‑ ‑ 

GORDON ACJ:   How could the Director do so?  It is not the Director’s job, is it?

MS AVENELL:   Not necessarily, your Honour, but I am drawing on the findings that Justice Basten made to say that in this case it was possible to take these factors into account, in answer to his Honour Justice Steward’s question, and why it would not necessarily be the case in every case.  I can come here to answer something that appears to have been troubling your Honour Justice Gordon, and that is the potentially speculative nature of taking into account the prospects of parole.  But, especially – that, I would say, is not a concern here, or not necessarily a concern when dealing with section 19ALB, because there is a much greater degree of certainty of refusal, that in this case was demonstrated.

Talking more generally, if a sentencing judge was unable to make a safe prediction or was not confident about whether or not section 19ALB would apply to them, or whether it would exist, or whether they would or would not show exceptional circumstances, the sentencing judge could easily decline to take the matter into account, and that happens in sentencing proceedings.  An offender at sentence may raise that they are onerous conditions of custody and that that should be taken into account and the judge does not think it is demonstrated and does not take it into account.

Here, as Mr Hatahet, the respondent, had a relatively short sentence compared to the spectrum of sentences that are imposed for terrorism and quasi‑terrorism offences.  At the time he came to be sentenced he had already done a reasonable amount of time on remand.  So, he was being sentenced well into his period of imprisonment, which, in my submission, heightened the value of the prognostication about there not being exceptional circumstances.  But that may not always be the case, that a valid prediction could be made.

As the Director rightly suggested, if you have someone who is being sentenced to 15 or 20 years in custody the judge may not know or be able to say what might be the position in 15‑odd years’ time.  That would be a circumstance where the judge could decline, with good reason, to take the matter into account.

STEWARD J:   How do we deal, as a matter of relevance on appeal, with the fact of actual refusal by the Attorney‑General?  So, Judge Baker when sentencing would not have known about that because it had not happened yet.

MS AVENELL:   Yes.

STEWARD J:   It emerged afterwards.  Do we take it into account?

MS AVENELL:   The actual refusal?

STEWARD J:   Yes.  Or is it just simply something that confirmed what might have been the likely position?

MS AVENELL:   That is probably the highest I can put it because Justice Basten is – he is having a bit of a bet both ways.  He is saying, we know it is refused, but at the time Judge Baker was sentencing by matter of the fact that he had not been sentenced, he obviously had not been refused parole either.  That is, perhaps, the highest I could put it, Justice Steward.

BEECH‑JONES J:   But this principle, the way you are putting it, would only – we are only talking about hardship or a factor during the period after the non‑parole period, is that right?

MS AVENELL:   Taking that into account?

BEECH‑JONES J:   Yes.

MS AVENELL:   Yes.

BEECH‑JONES J:   Now, the structure is you fix the sentence, then you fix the non‑parole period.

MS AVENELL:   Yes.

BEECH‑JONES J:   I have said it before, the way Justice Basten appears to have done it is assumed you fix the sentence, you fix the non‑parole period and then you adjust the sentence downwards.  That is not how the Act works, is it?

MS AVENELL:   It is not, your Honour, no.  But, as I said early in my submissions ‑ ‑ ‑ 

BEECH‑JONES J:   You are not embracing that, you would say, well, you would be looking at this when you fix the overall sentence.

MS AVENELL:   Yes.

BEECH‑JONES J:   Right, I see.

GORDON ACJ:   You do it at step 1.  Your proposition would have us do it at step 1.

MS AVENELL:   Yes.

GORDON ACJ:   Not at step 2B.

MS AVENELL:   It has to be because that is what the legislation requires.

GORDON ACJ:   So, that is why you would have us read section 16A(2) as incorporating this consideration.

MS AVENELL:   Yes.

GORDON ACJ:   Because, absent that, we have a difficulty.

MS AVENELL:   Might I just have a moment.

GORDON ACJ:   Absolutely.

MS AVENELL:   I jumped around in my notes.  If I might just have a moment to see what I have not covered.

GORDON ACJ:   Certainly.

MS AVENELL:   Your Honours, the balance of my submissions are directed towards responding to what the applicant says about Hoare and the authorities that it says demonstrate – or the three identified rationales in Hoare.  It is possibly on appeal that the Director puts the relevance of those cases in a more limited way than it had in its written submissions. 

My response to those – and I will demonstrate it just by reference to a few of the cases, there is a very large number of them referred to and footnoted in the written submissions – is to look just at a few of them to make my submission that, essentially, those cases are so removed from the provisions of Part IB, especially section 19ALB, that they are of very little utility, if any, to your Honours and can be put aside in your Honours’ consideration, and that it is the analysis that is undertaken by reference to Part IB that is the important analysis.  If your Honours look first at Hoare, which is in the joint appeal book at tab 12.  Page 271 first ‑ ‑ ‑

GORDON ACJ:   What page of the report is that, please?

MS AVENELL:   It is page 349.

GORDON ACJ:   Thank you.

MS AVENELL:   In the first paragraph at the bottom of the page, about three lines up, the Court said the issue in this case was that:

the Court of Criminal Appeal misconstrued and misapplied s. 302 of the Criminal Law Consolidation Act 1935 (S.A.) in that it acted on the basis that the practical effect of that section was to require a dramatic increase in South Australia in the length of terms of imprisonment and non‑parole periods under sentences for crimes committed after the commencement of the section in December 1986.

If we turn the page on to page 351 we can see that the relevant provision is extracted about a third of the way down the page.  In short, it required the sentencing judge to take into account the remissions that would be credited or may be credited to the prisoner.  Then, on page 275 of the joint book of authorities, which is 353 in the report, the bottom of the page, the Court said:

It is well settled as a matter of principle that the existence of a remissions system such as that contained in Pt VII of the Correctional Services Act, is not, of itself, a circumstance justifying an increase in the head sentence. 

And it is from those reasons of the Court that the paragraph I have just read out, on 353 to 354 – that is, the lead‑in to the three rationales that are relied upon by the Director.  In my submission, the context of a remissions scheme and whether or not it is a circumstance justifying an increase in the head sentence, of itself, is an issue totally removed from the circumstances here.

As for all the authorities that are referred to and footnoted in the written submissions:  it is simply not practicable to go through them all, but presumably the ones quoted in the written submissions are the most significant and strongest, and there is some overlap between those and the ones that the Director has referred to today.  But looking at them as well, if your Honours look at Bruce at tab 18, the top of page 373, the second paragraph:

The learned judge in his report raised the question whether sentencing judges ought to take into account the policy of the Parole Board as to granting or refusing parole to people who, like the present applicant, have been paroled on previous occasions. 

Again, obviously an entirely different statutory scheme from here.  We are not talking about policies of the Parole Board or the like.  We are talking about the actual legislation in section 19ALB.  It is also a fairly qualified decision in that the Full Court in that case, in its reasons further on, says:

In the exercise of that function there would appear to be no place for any inquiry as to the policy of the Board in relation to parole.

And again, further down:

Questions as to the policy of the Board would appear to be irrelevant to the inquiry which the sentencing judge is called upon by those words to make. 

The use of the word “appear” puts it as a somewhat qualified decision.  Tab 16 is the Attorney‑General v Morgan, and page 351 in the joint book of authorities.  I should preface it by saying it was an argument about manifest excess, or manifest inadequacy, rather, that the Attorney‑General was making in that case.

STEWARD J:   What is the page of the report?

MS AVENELL:   It is 152.  The third or fourth paragraph down on that page commences:

The Solicitor‑General invited the court to have regard to the regulations concerning remission of sentence when determining whether the aggregate period of imprisonment was manifestly inadequate –

It goes on with some reasons about – relevant to the situation in this case – which was a remissions scheme.  There is further detail about the submissions that were being made, which is at page 353 of the book, and 154 of the report, where about three‑quarters of the way down, it says:

The Solicitor‑General submitted, as I understood his argument, that appraisal of the diminution which the fixing of a minimum term might work in the period of actual imprisonment was more plainly to be recognised as a legitimate step in determining whether the sentence, or the aggregate period of imprisonment to be served under several sentences, is inadequate when the suggested difficulty or “incongruity” had been acknowledged.

The court did not accept that incongruity, but the reason that I refer to that is to give context to the judgment here, which is about, again, the effect of remissions.

GORDON ACJ:   I had understood the Director to accept that there were different regimes in place in each of these authorities.  I had thought from the submissions in writing – not so much orally – that it was directed at identifying that there were some established general sentencing principles against which the relevant schemes had been drafted, in a sense, and that they were reflected in passages that we were either referred to in the footnotes or taken to in oral submissions.

MS AVENELL:   My submission is that your Honours do not need to refer to these cases because what your Honours need to refer to is Part IB and what can be accommodated within Part IB.  The authorities as to whether or not remissions schemes should be taken into account, or policies of the Parole Board, just do not assist, because what your Honours have to take into account is what is in Part IB of the Crimes Act.

BEECH‑JONES J:   And that includes, you say, ALA?

MS AVENELL:   ALB.

BEECH‑JONES J:   ALB, sorry, yes.

MS AVENELL:   Yes, that is right.  Your Honour, I can go on with some other cases that are in the joint book of authorities, but I do not think it is valuable.  It is not going to be a valuable tool because the submission is essentially the same in each case.

GORDON ACJ:   I think we have the submission and understand it, thank you.

MS AVENELL:   Yes.  I do not need to go to it, but Sikaloski is a little bit different – it was not a remission scheme, it was about parole being set by a particular formula – but my argument is the same.

Your Honours, the last point that I have to address is the Director’s submission that taking the prospects of parole into account can subvert the legislative scheme for parole.  The purpose of section 19ALB can be

accepted as what the Director has put – in short, to make it more difficult for people who come within subsection (2) to obtain parole – but, in my submission, that difficulty in obtaining parole, and in particular its consequences for the individual, should not then be considered neutral on the other considerations that are relevant for sentence.

Here, that other consideration was the onerousness of the respondent’s period of custody.  My position that not every offender will have section 19ALB or its consequences taken into account is relevant here, because if it was automatically going to be taken into account, the bare existence of it, that could be seen to be subverting the legislative scheme, but that is not what I am submitting.  I am submitting that it is the actual practical consequences of it that take on some relevance.

Your Honour Justice Beech‑Jones, when the Director was making submissions, raised the issue about what if the Executive decides to release the person contrary to the sentencing judge taking into account section 19ALB.  In my submission, that comes back to the demanding test that there is in section 19ALB, and the strength of the sentencing judge’s ability to make an assessment or not, or prognostication whether or not they take it into account.  The argument can end up being circular, because if it is a person who the judge has been satisfied will be, or will very likely be, refused parole because of section 19ALB, matches the unlikelihood that later on, the Attorney‑General is going to make a different decision, or there would be very good reason for it.

Unless there is anything else that your Honours would like assistance with, those were my submissions.

GORDON ACJ:   Thank you very much.  Any reply?

MS SHARP:   Thank you, your Honour.  I think half a dozen hopefully short points.  Our learned friends seek to distinguish a large body of the authorities to which we have taken the Court – principally Knight, Minogue and Crump.  In our submission, those authorities remain relevant, notwithstanding the fact that they dealt with perhaps different provisions, parole granted in a different jurisdiction, or in the case of Knight, were principally a constitutional law case.

In relation to Knight in particular, can I take the Court to paragraph 6.  Knight is at tab 13 of the materials.  Paragraph 6 is on page 301 of the joint book of authorities.  Our learned friends took your Honours to the question of paragraph 4, which is a constitutional question:

Is s 74AA invalid on the ground that it is contrary to Ch III –

because it offended the Kable proposition.  Paragraph 6 explains why the discussion and the reasoning of the Court in answering that question is nevertheless relevant for present purposes:

The question is to be answered in the negative.  The first argument fails because neither in its legal form nor in its substantial practical operation does the section interfere with the sentences imposed by the Supreme Court.

The interference of the executive function with sentences is something that we have been discussing today, so the reasoning there is relevant and valid, in our submission.

Can I take then the Court to just one other paragraph of Knight, which is paragraph 29, which commences at the bottom of page 307 of the appeal book, and it is the bottom of page 323 of the report.  There, in joint judgment, it was said:

By making it more difficult for Mr Knight to obtain a parole order after the expiration of the minimum term, s 74AA does nothing to contradict the minimum term that was fixed.  Nor does it make the sentence of life imprisonment “more punitive or burdensome to liberty” (67).  The section did not replace a judicial judgment with a legislative judgment.  It does not intersect at all with the exercise of judicial power that has occurred.

In our submission, those observations and that reasoning is apposite to section 19ALB.  There remains one sentence that was imposed – that a number of the cases, Crump, Minogue, and Knight were dealing with a term of life imprisonment, is, in our submission, an irrelevant distinction in this context. 

Here, the sentence imposed at first instance was five years.  That sentence did not change by the decision of the Attorney‑General not to grant parole.  We see some of the language creeping in with our learned friends, who submitted that the additional length imposed, presumably by the refusal of parole, that that in our submission is apt to create difficulties in the reasoning process, because there is no additional length imposed by the refusal of parole, and that same error, sort of, can be seen in some of the language of Justice Basten in paragraph 88 of the judgment below, which is on page 100 of the appeal book, 34 of the decision.  When there is almost an expectation that parole would be granted, an entitlement to parole such that the refusal is really a problem that creates more onerous conditions.

In relation to the onerous conditions, there was one other aspect of the sentence where Justice Baker referred to the conditions, and that is at page 54 in the core appeal book, which is page 42 of the sentence.  There they were discussing – or his Honour was discussing – the onerous conditions, and at about point 6 of the page – I am sorry, I have line numbers here.  Line 14, Mr Evers submitted that:

although this factor is usually given significant weight, given the delay of 8 years, the ongoing contact the offender had with the authorities after his return, the experience he suffered on his return to Syria in 2013, and the extremely onerous custodial environment he will remain in during his sentence –

This phrase, “remain in during his sentence” is something that the Court of Appeal also picked up on:

the Court would find that specific deterrence in protection of the community need not play a significant role in the sentence imposed.

There are two points to make there.  As I indicated orally, Mr Hatahet, the respondent, had been reclassified, and reference to that is found in the transcript of the argument before the Court of Criminal Appeal.  But also the observation that:

specific deterrence in protection of the community need not play a significant role –

that is a decision or a finding that his Honour Justice Baker made, which was endorsed by the Court of Criminal Appeal.  Of course, the parole decision is a different one, and 19ALB is focussed on protection of the community.  It is entirely appropriate and permissible for the Executive to have a different focus in terms of the parole than the sentencing judge has in terms of imposing a sentence; which then leads to the second‑last point that I would seek to make, the issue about subversion.

In our submission, this decision does subvert the intention of 19ALB, and my learned friend referred to the case of Sikaloski.  If I can just take the Court to that, this is at tab 20 of the materials.  In Sikaloski, the court confirmed that it was not for the sentencing judge to increase or reduce the head sentence to avoid the impact of the Act.  In that case, that was section 94(1) of the Sentencing Act.

Can I take the Court to paragraphs 18 and 19 commencing on page 393 of the joint book of authorities.  I apologise, paragraph 18 commences at the bottom of page 392, which sets out the provision that was

there being considered – 94(1) of the Sentencing Act.  Where two or more parole terms were served, the parole period was:

calculated by reference to the aggregate of those terms –

and it was suggested that the sentence that was imposed was imposed in such a way as to avoid the operation of section 94.  Reading from paragraph 19, just over the page on 393:

Section 93(1) determines when a prisoner is eligible to be released on parole.  In this case, the aggregate of all the terms exceeding 6 years –

which was the threshold period:

the applicant will be eligible for parole when he has served 2 years less than two‑thirds of the aggregate term of 11‑1/2 years.  When so aggregated, the result is as senior counsel for the applicant indicated.  This is the result of the Act operating upon the sentences which the Court imposes, and it is not for a sentencing Judge either to increase or to reduce the head sentence in order to avoid the impact of the Act –

And we see here what Justice Basten has done – he has modified the sentence to avoid the impact of section 19ALB, in our submission.  The final point is one to make about whether this is an argument or a submission that would be made in other cases.  In our submission, our learned friends’ attempts to minimise the application of the principle have not been successful and should not be accepted. 

Here we have a particular factual scenario, which is a sentence that is relatively short, and facts that are known at the time of the appeal about the position on parole.  That is not to say that that is not going to be possible in other cases; it is possible for an offender to come back after the expiry of a non‑parole period and after a parole decision has been made to say, my parole has been refused.  Considering Hatahet, I am now suffering under more onerous conditions, please resentence me.  In fact, if that is the principle that stands – and we say that is one possible reading that people might take of Hatahet – defence practitioners are, in a sense, duty bound to raise every factor in mitigation that they can for their clients – to the benefit of their clients.

Those were the matters in reply.

GORDON ACJ:   The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow, 15 May.

AT 12.08 PM THE MATTER WAS ADJOURNED