Page:The King v Hatahet.pdf/30

Beech-Jones J legislation, a court was required to set a "minimum term of imprisonment" and an "additional term during which the [offender] may be released on parole". There is no equivalent component of a sentence imposed for a federal offence under the Crimes Act. One can identify a period of time between the expiry of the non-parole period and the expiry of the sentence, but that period has no statutory status or particular significance under the Crimes Act. The closest analogy in the Crimes Act to the concept of the "additional term" that appears to have been used in the above passage is the statutory phrase "parole period". However, subject to an immaterial exception, that phrase only refers to the period of a sentence that an offender serves in the community commencing on their release from prison on parole. This only serves to confirm that any non-parole period fixed under s 19AB of the Crimes Act does not represent a period of time the expiry of which yields some entitlement, unconditional or otherwise, on the part of an offender to be released. Instead, it is the "period before the expiration of which, having regard to the interest of justice, [an offender] cannot be released".

69 Second, the above passage reveals an approach to re-sentencing by an intermediate court of appeal that is inconsistent with Kentwell v The Queen. Kentwell held that, once any error on the part of the sentencing judge is established, the court must exercise the sentencing discretion afresh. If the exercise of that discretion results in a conclusion that a lesser sentence is "warranted in law", then the court must re-sentence the offender. The independent exercise of the sentencing discretion that the court is obliged to undertake if it finds error cannot be performed by "merely adjusting the sentence actually passed to allow for the error identified". However, in observing that there was no separate error in the fixing of the respondent's non-parole period, leaving the non-parole period unaltered and then shortening the period between the expiry of the non-parole