Page:The King v Hatahet.pdf/8

Gordon A-CJ Steward J Gleeson J

granted leave. Subject to one qualification, the Court found that the sentence was not manifestly excessive. The one qualification concerned the unlikelihood of parole being ordered given s 19ALB.

5 Evidence before the Court of Criminal Appeal, admitted without objection, revealed the Attorney-General's refusal to grant the respondent parole in August 2023. In those circumstances, Basten A-JA, with whom Davies and Cavanagh JJ agreed, relevantly identified two issues for determination in the context of sentencing for an offence to which s 19ALB applied: (1) in fixing the length of the sentence, is a sentencing judge entitled to take into account the probable effect of s 19ALB and executive practices; and (2) is error demonstrated in this case by the evidence that the respondent had in fact been refused parole by the Attorney-General applying s 19ALB.

6 The Court of Criminal Appeal decided that the likely application of s 19ALB to an offender was a relevant consideration in determining the length of sentence and that the sentencing judge had accordingly erred in failing to take that into account in fixing the respondent's sentence. In so concluding, Basten A-JA had regard to the established practice that a sentencing court may have regard to the likely circumstances attending a period of incarceration, such as whether the offender will face more onerous conditions than other prisoners, and was influenced by the dissenting reasons of Brennan and McHugh JJ in R v Shrestha, which include an observation that a sentencing judge "cannot be blinkered merely because the likelihood of the occurrence of a material fact depends on the implementing of executive policy".

7 Basten A-JA reasoned that "[a]t least on one view, fixing a non-parole period for a person who has no realistic possibility of release, even if he or she maintains an excellent record of behaviour whilst in prison and undertakes