Page:The King v Hatahet.pdf/13

Gordon A-CJ Steward J Gleeson J

protection of the community. The Revised Explanatory Memorandum then states:

""Like the presumption against bail, the presumption against parole is a mechanism to enhance the management of the particular risks posed by terrorist offenders and other offenders who have expressed support for, or have links to, terrorist activity.

The presumption will operate to prevent terrorist offenders and other terrorism-related offenders being released on parole unless exceptional circumstances exist. This measure sets an appropriately strict test for considering whether to release such offenders on parole, given the nature of the threat posed by such offenders.""

Distinction between sentencing and parole

19 There is a fundamental distinction between the judicial function of sentencing an offender and the executive function of determining whether an offender should be released on parole. As earlier explained, the judicial function requires consideration of both the appropriateness of a sentence of imprisonment and the appropriate length of such a sentence, including the fixing of a non-parole period where appropriate. That function is exhausted upon the making of the order which sentences the offender.

20 A non-parole period fixed by a sentencing judge does not create a right or entitlement to be released. As the plurality observed in Power v The Queen,