19.
sentence or non-parole period; (b) release on parole or after a minimum period has expired depends on the exercise of discretion by the Executive by reference to circumstances as they exist at that time, which cannot be known to the sentencing court;[1] (c) the exercise of the discretion by the Executive "is neither predictable nor controllable by the sentencing judge", and a person's liberty should not depend on speculation "no matter how well grounded";[2] (d) in sentencing, "the Court is not concerned with remissions for good conduct nor with the policy of the Parole Board", as the duty of a sentencing judge is in the first place to determine what is the appropriate term of imprisonment[3] to be imposed;[4] and (e) a sentencing court could only give effect to a consideration of the likelihood of a person being released earlier than the maximum sentence imposed by "increasing the length of the term of imprisonment that [the sentencing court] would otherwise have imposed", which "would not only be contrary to principle but also contrary to the clear intention of Parliament" to impose the sentence "which in all the circumstances [the sentencing court] considers to be appropriate to the offence and to the offender".[5]
56 By analogy, the only way a sentencing court could give effect to the taking into account of s 19ALB(1) (which prevents the Attorney-General from making a parole order unless satisfied that exceptional circumstances exist to justify the making of such an order) is to decrease the head sentence of imprisonment that the sentencing court otherwise would have imposed (as, indeed, the Court of Criminal Appeal did). In so doing, however, the sentencing court will not, contrary to s 16A(1) of the Crimes Act, impose a sentence "that is of a severity appropriate in all the circumstances of the offence".
57 Further, the likelihood, or lack thereof, of the offender being granted a parole order for any reason, including by operation of s 19ALB, cannot be a circumstance of the offence within the meaning of s 16A(1) as that potential cannot be known at the time of sentencing and is outside the control of the sentencing court. The "expectation (now a reality)"[6] of the respondent being "ineligible" for
- ↑ See, for example, R v Yates [1985] VR 41 at 47; Re Jackson [1997] 2 VR 1 at 3.
- ↑ Morgan (1980) 7 A Crim R 146 at 156.
- ↑ Assuming, in accordance with s 17A(1), that the sentencing court is satisfied that no other sentence is appropriate in all the circumstances of the case.
- ↑ R v Yates [1985] VR 41 at 44–45. See also Hoare v The Queen (1989) 167 CLR 348 at 353–356 (albeit in the context of remission).
- ↑ R v Yates [1985] VR 41 at 46.
- ↑ Due to the Commonwealth Attorney-General refusing the respondent parole on 21 August 2023.
