Gordon A-CJ
Steward J
Gleeson J
2.
granted leave.[1] Subject to one qualification, the Court found that the sentence was not manifestly excessive.[2] The one qualification concerned the unlikelihood of parole being ordered given s 19ALB.
5 Evidence before the Court of Criminal Appeal, admitted without objection, revealed the Attorney-General's refusal to grant the respondent parole in August 2023.[3] In those circumstances, Basten A-JA, with whom Davies and Cavanagh JJ agreed, relevantly identified two issues for determination in the context of sentencing for an offence to which s 19ALB applied: (1) in fixing the length of the sentence, is a sentencing judge entitled to take into account the probable effect of s 19ALB and executive practices; and (2) is error demonstrated in this case by the evidence that the respondent had in fact been refused parole by the Attorney-General applying s 19ALB.[4]
6 The Court of Criminal Appeal decided that the likely application of s 19ALB to an offender was a relevant consideration in determining the length of sentence and that the sentencing judge had accordingly erred in failing to take that into account in fixing the respondent's sentence.[5] In so concluding, Basten A-JA had regard to the established practice that a sentencing court may have regard to the likely circumstances attending a period of incarceration, such as whether the offender will face more onerous conditions than other prisoners,[6] and was influenced by the dissenting reasons of Brennan and McHugh JJ in R v Shrestha, which include an observation that a sentencing judge "cannot be blinkered merely because the likelihood of the occurrence of a material fact depends on the implementing of executive policy".[7]
7 Basten A-JA reasoned that "[a]t least on one view, fixing a non-parole period for a person who has no realistic possibility of release, even if he or she maintains an excellent record of behaviour whilst in prison and undertakes
- ↑ Hatahet v The King [2023] NSWCCA 305 at [89].
- ↑ Hatahet v The King [2023] NSWCCA 305 at [38].
- ↑ Hatahet v The King [2023] NSWCCA 305 at [47].
- ↑ Hatahet v The King [2023] NSWCCA 305 at [48].
- ↑ Hatahet v The King [2023] NSWCCA 305 at [85]–[88].
- ↑ Hatahet v The King [2023] NSWCCA 305 at [52], [84].
- ↑ (1991) 173 CLR 48 at 64; see Hatahet v The King [2023] NSWCCA 305 at [71], [84].
