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Beech-Jones J period and the expiry of the sentence, the Court of Criminal Appeal did exactly that.

70 Had the Court undertaken the re-sentencing task in this case in accordance with Kentwell, it would have exposed the error in the earlier part of its reasoning in relation to hardship and non-parole periods. Kentwell required the Court to address the criteria in s 16A of the Crimes Act in determining the respondent's sentence and fixing the appropriate non-parole period under s 19AB, bearing in mind the significance of that period as described above. If that task had been undertaken with that understanding and otherwise in accordance with the Crimes Act, it would have confirmed that what the Court referred to as the "additional term" was merely the arithmetical difference between the total sentence and the non-parole period. As noted, that period has no statutory status under the Crimes Act and cannot be adjusted by reference to an assessment of the likelihood of an offender being released on parole.

71 Had the sentencing discretion been exercised in a manner consistent with Kentwell, it would have also confirmed that, while individual hardship occasioned to an offender from their custodial conditions could be considered as part of the process of "instinctive synthesis" undertaken in determining the sentence and fixing any non-parole period, such hardship cannot be somehow isolated so as to warrant a reduction of the "additional term". Instead, the effect of the Court's approach was to fix a new total sentence of four years by starting with the non-parole period of three years imposed by the sentencing judge and then adding a reduced "additional term" of one year on the basis that the respondent was unlikely to be released at the end of his non-parole period. This involved a reasoning process that did not conform with the Crimes Act.

72 The Court of Criminal Appeal was wrong to find error on the part of the sentencing judge and erred in its approach to re-sentencing. The orders proposed by Gordon A-CJ, Steward and Gleeson JJ should be made.