Gordon A-CJ
Steward J
Gleeson J
3.
appropriate courses, is likely to adversely affect the offender and his or her mental condition".[1] His Honour thus concluded that the "expectation (now a reality) that parole would be refused", together with the respondent's previous more burdensome incarceration, meant "that he has suffered a considerably more onerous period of imprisonment and, given his ineligibility for release on parole, will continue to suffer more onerous conditions of imprisonment".[2] This warranted a "reduction" in the respondent's sentence of one year.[3] Basten A-JA considered that this variation in sentence recognised "that the [respondent] will not get parole when ordinarily he would likely have obtained parole before the end of his sentence".[4] It followed that the appeal was allowed and the respondent was resentenced to imprisonment for four years with a non-parole period of three years, so that the sentence will now expire on 23 August 2024.
8 The Director of Public Prosecutions (Cth) ("the Director") relies on two grounds of appeal in this Court: first, that the Court of Criminal Appeal erred in concluding that the sentencing judge should have considered the application of s 19ALB when sentencing the respondent; and second that the Court of Criminal Appeal erred in concluding that the expectation that parole would be refused due to an application of s 19ALB warranted the imposition of a lesser sentence.
9 For the reasons which follow, the Court of Criminal Appeal was wrong to take into account the likely application of s 19ALB to the respondent in the resentencing process. The Director's appeal should be allowed. The reduction in sentence must be set aside.
Sentencing under the Crimes Act
10 For the purposes of Divs 1 to 4 of Pt IB of the Crimes Act, a judge must undertake three distinct steps when sentencing an offender. First, the judge must only pass a sentence of imprisonment if, having considered all other available sentences, he or she is satisfied that no other sentence is appropriate in all the circumstances of the case.[5]
