Jagot J
16.
23 August 2025 and the respondent first became eligible for parole on 23 August 2023.[1]
45 The respondent appealed against sentence on the ground that it was manifestly excessive. The Court of Criminal Appeal granted the respondent leave to appeal, allowed the appeal, and sentenced the respondent to a term of imprisonment of four years, with a non-parole period of three years, the sentence having commenced on 24 August 2020. As a result, the head sentence will expire on 23 August 2024.
46 In allowing the appeal, the Court of Criminal Appeal rejected the contention that the sentence the sentencing judge imposed was manifestly excessive but held that the sentencing judge erred in principle by not taking into account the respondent's "ineligibility for release on parole" by reason of s 19ALB of the Crimes Act, so that the respondent "will continue to suffer more onerous conditions of imprisonment",[2] which the Court of Criminal Appeal concluded warranted a reduction in the sentence imposed by the sentencing judge. In re-exercising the sentencing discretion, Basten A-JA said:[3]
"Where there has otherwise been no error established on the part of the sentencing judge, there is no basis to interfere with the non-parole period of 3 years. However, the additional term of two years should be reduced to one year, being a sentence expiring on 23 August 2024. That variation recognises that the [respondent] will not get parole when ordinarily he would likely have obtained parole before the end of his sentence. If compassionate grounds amounting to exceptional circumstances arise within that period there is a chance he will obtain conditional release, but the chance is low and his liberty will then be subject to supervision."
Statutory provisions
47 This appeal concerns provisions in Pt IB of the Crimes Act ("Sentencing, imprisonment and release of federal offenders"), containing ss 16 to 22A and including, most relevantly, s 19ALB. Section 19ALB of the Crimes Act, by s 19ALB(2), applies to three classes of persons, including, in s 19ALB(2)(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 Pt 5.3 of the Criminal Code (Cth) ("Terrorism"). Basten A-JA said, and it is not
