1 GORDON A-CJ, STEWARD AND GLEESON JJ. In April 2020, the respondentwas arrested and charged under s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) with the offence of engaging in a hostile activity in a foreign State, namely Syria. In 2021, in the Local Court of New South Wales, the respondent pleaded guilty to, and was convicted of, that offence.[1] In December 2022, he was sentenced to imprisonment for five years, with a non-parole period of three years, commencing on 24 August 2020. The sentence was to expire on 23 August 2025.
2 Consistently with s 16A of the Crimes Act 1914 (Cth), in sentencing the respondent the sentencing judge took into account, amongst other factors, the probable hardship the respondent's family would suffer as a result of his sentence, as well as the hardship the respondent had already suffered in custody since his arrest. The respondent was found to have been subject to "extremely onerous" custodial conditions and to have experienced additional restrictions and difficulties due to the COVID-19 virus. The sentencing judge did not take into consideration the likelihood (if any) of the respondent being released upon the expiration of his non-parole period.
3 The respondent became eligible for release on parole in August 2023 but parole was refused by the federal Attorney-General pursuant to s 19ALB of the Crimes Act. Section 19ALB of the Crimes Act requires that parole be refused to a person involved in, or convicted of, certain terrorist-related activities unless the Attorney-General is satisfied that "exceptional circumstances exist to justify making a parole order". In the case of the respondent, the Attorney-General was satisfied that the respondent had carried out "activities supporting, or advocating support for, terrorist acts" for the purposes of s 19ALB(2)(c) of the Crimes Act.[2] It followed that parole could not be ordered unless the Attorney-General was satisfied that exceptional circumstances existed to justify making a parole order. The notice records that he was not so satisfied. No challenge has been made to the validity of the Attorney-General's state of satisfaction. The notice records that the Attorney-General will reconsider the respondent for release on parole within 12 months.
4 Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the respondent sought leave to appeal against his sentence. He relied upon one ground of appeal only, namely that the sentence imposed was manifestly excessive in the circumstances of his case. The Court of Criminal Appeal of New South Wales
