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Gordon A-CJ Steward J Gleeson J

26 The reasons for the adoption of such a principle are similar to the reasons identified in Hoare. Thus, it is thought to be too speculative for a judge to make a prediction about the probability of a parole order being made: "[n]ot only are the circumstances at the expiration of the minimum term unpredictable: they include circumstances which are beyond the power of the offender to control", including, for example, the offender's future health. That also includes what a parole board, or here the Attorney-General, might or might not do. It further includes the possibility that "the legislative scheme, as well as practice and policies, regarding the parole system may validly change from time to time". A good example of this may be found in Minogue; there, an amendment was made to the Corrections Act 1986 (Vic) many years after Minogue had been originally sentenced and which changed the basis upon which he might be granted parole.

27 The differing and distinct functions of the judicial and executive branches, adverted to above, have also been seen to support a conclusion that the function of a judge in sentencing does not include a consideration of the prospects of release on parole. As this Court observed in Elliott v The Queen, subject to the appellate system, the exercise of judicial power with respect to trials is spent upon the subsequent imposition of a sentence: "[t]he controversy represented by the indictment [is thereby] quelled and, allowing for any applicable statutory regime, the responsibility for the future of [an offender passes] to the executive branch of the government of the State". Indeed, having regard to the function of sentencing, described above and as required by s 16A of the Crimes Act, it is correct to observe that any policy of a parole board, or here the Attorney-General, may properly be seen to be "irrelevant".