Jagot J
20.
release on parole, which the Court of Criminal Appeal relied upon as justifying the reduction of the head sentence,[1] was and remains speculative. When imposing the sentence, the sentencing judge could not have known that the Attorney-General would refuse to make a parole order (as the Attorney-General did on 21 August 2023). Section 19ALB(1) undoubtedly makes it more difficult for a person to whom it applies to obtain a parole order, but a sentencing court can no more speculate about whether, at the time a person becomes eligible for parole, there will or will not exist circumstances the Attorney-General is satisfied are exceptional under s 19ALB(1) than it can about the person's conduct while serving their sentence.
58 Additionally, there is no logical connection between a speculated or well-founded lack of potential for an offender to obtain a parole order by reason of s 19ALB(1) and the offender's conditions of imprisonment. The Court of Criminal Appeal reasoned that, given the respondent's "ineligibility" for release on parole, the respondent "will continue to suffer more onerous conditions of imprisonment".[2] This can mean only that the respondent will continue to suffer more onerous conditions of imprisonment for the period of two years after the expiry of the non-parole period (three years) and before the expiry of the head sentence (five years) compared to the conditions of imprisonment that would be experienced by an offender not classified as EHRR. This comparison exposes that the reason the respondent will continue to suffer more onerous conditions of imprisonment is his classification as EHRR, not the application to him of s 19ALB(1). The sentencing judge properly considered and gave weight to the consequences of the respondent's classification as EHRR in determining the sentence.
59 Finally, and perhaps most importantly, that the only way a sentencing court could give effect to the taking into account of s 19ALB(1) is by decreasing the sentence it otherwise would have imposed as the sentence of a severity appropriate in all the circumstances of the offence as required by s 16A(1) of the Crimes Act is important. It means that taking into consideration s 19ALB(1) in imposing a sentence of imprisonment would directly conflict not only with s 16A, but also with the legislative intention underlying the enactment of s 19ALB itself. The legislative intention was to create a presumption against the release of certain offenders (those "who have demonstrated support for, or have links to, terrorist activity [3]) in order to satisfy "the overriding need to protect the community"[4] If
