R v Hatahet

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

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

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

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