Page:The King v Hatahet.pdf/28

Beech-Jones J

62 BEECH-JONES J. Subject to what follows, I agree with the judgment of Gordon A-CJ, Steward and Gleeson JJ.

63 The dispositive part of the judgment of the New South Wales Court of Criminal Appeal the subject of this appeal is the following passage, which identified the supposed error on the part of the sentencing judge:

""The expectation (now a reality) that parole would be refused, combined with the fact that the [respondent] has served most of his sentence in the HRMCC (which was taken into account by the sentencing judge), means 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." (emphasis added)"

64 The Court concluded that such consideration warranted a reduction in the sentence imposed by the sentencing judge, who took no account of "this application" of s 19ALB of the Crimes Act 1914 (Cth).

65 At the hearing of this appeal, attention was focused on the identification of the comparator deployed by the Court to reach the conclusion that the respondent had suffered a "considerably more onerous period of imprisonment" and would continue to so suffer for the balance of his period of imprisonment. If this conclusion was only referable to a comparison between the respondent's custodial conditions and those experienced by the general prison population, then it involved an orthodox approach to identifying the potentially harsher effect of the day-to-day conditions of incarceration on a particular offender compared to the general prison population, which can be considered under s 16A of the Crimes Act. That was the approach of the sentencing judge, who found that the respondent's custodial conditions were "extremely onerous and significantly more so than the general prison population". However, if the comparator deployed by the Court was the day-to-day custodial conditions of the general prison population, then it could not support a finding of error on the part of the sentencing judge.

66 Senior counsel for the respondent contended that the above passage referred to the respondent's sentence being more onerous than what was envisaged by the sentencing judge. Another possibility is that the reference in the above passage to