Gordon A-CJ
Steward J
Gleeson J
14.
consideration of the prospects of parole in discharging the sentencing task. It would be practically impossible for a court to predict what "exceptional circumstances" might exist in the years ahead which might, to the Attorney-General's satisfaction, justify the making of a parole order. That judgment is to be contrasted with a court's appreciation of the seriousness of the offending and the conditions of imprisonment known to it at the time of sentencing. Such matters properly bear upon the sentencing task. That conclusion is fortified by the very terms of s 19ALB, which may be triggered by events which take place after the completion of an offender's criminal trial. A person might, for example, make statements supporting terrorist acts for the purpose of s 19ALB(2)(c), but only after they have been sentenced, and in circumstances where a court could not have foreseen the making of such statements at the time of sentencing.
38 To similar effect, the concerns of Hoare, Minogue and the other authorities referred to above with distinguishing between the function of the executive and that of a court, and with the need to ensure that sentencing, correctly determined in accordance with established principle (and here with the terms of s 16A), is not then distorted by best guesses at the prospect of parole, do, with respect, apply with equal force to this case.
39 It follows that the Court of Criminal Appeal erred in determining that the respondent's reduced prospects of securing release on parole constituted a species of burden that was relevant in applying s 16A of the Crimes Act. The respondent's sentence should not have thereby been reduced.
40 For the foregoing reasons the appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside and in lieu thereof it should be ordered that leave to appeal against sentence be granted but the appeal be dismissed.
