Page:The King v Hatahet.pdf/24

Jagot J

factors to which the decision-maker may legitimately have regard". In this case, the subject-matter, scope and purpose of the Crimes Act indicate that, in imposing a sentence of a term of imprisonment, a sentencing court is not to consider the likelihood, or lack thereof, that a person may be granted parole, including by operation of s 19ALB of the Crimes Act.

52 The fundamental obligation of a sentencing court is stated in s 16A(1) of the Crimes Act and is that:

""In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.""

53 Section 16A(2) then provides that:

""In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…""

54 The matters nominated in s 16A(2) do not include the likelihood, or lack thereof, of the person obtaining parole. This is unsurprising as, at the time of sentence and the fixing of a non-parole period, a sentencing judge will not be able to assess the potential for the person to be granted or refused parole other than by reference to some of the factors referred to in s 19ALA(1). Many of the factors specified in s 19ALA(1), however, concern matters which cannot be known or fully known at the time of sentence (for example, the risk to the community of releasing the person on parole (s 19ALA(1)(a)), the person's conduct while serving their sentence (s 19ALA(1)(b)), and whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency (s 19ALA(1)(c))).

55 This is consistent with the position at common law that a sentencing court is not to consider the likelihood, or lack thereof, of a person being granted release after having served a non-parole period. The reasons for this position at common law have been variously expressed, including: (a) as a matter of principle, it is necessary to fix the head sentence first, lest that sentence, being the term "which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender", be influenced by speculation as to the prospect of release of the person at the expiry of a minimum