21.
the Court of Criminal Appeal is correct in its construction of the legislative provisions, rather than the community being protected by the presumption against such offenders being granted parole other than in exceptional circumstances (so that they are not released from prison before expiry of their head sentence), the community will be exposed to such offenders being sentenced for lesser periods than would be the case but for the enactment of s 19ALB. Subversion of legislative intention of this kind, by a process of statutory construction, is impermissible.
60 Accordingly, in exercising the sentencing discretion in accordance with s 16A of the Crimes Act, a sentencing court must not take into account the potential or lack of potential for the offender to obtain parole including by reason of s 19ALB of the Crimes Act applying (or likely applying) to the offender.
61 The appeal should be allowed. The orders proposed in the reasons for judgment of Gordon A-CJ, Steward and Gleeson JJ should be made.
