Hatahet v R

JUDGMENT

1. BASTEN AJA: On 2 December 2022, the applicant, Fayez Hatahet, was sentenced by Baker SC DCJ with respect to a single offence under s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The gravamen of the offence was that the applicant had travelled to Syria, at first to seek the release of his brother-in-law whom he believed was being held by one of the armed groups operating in Syria, but thereafter he engaged in a number of hostile activities with the Free Syrian Army. The applicant was sentenced to a non-parole period of 3 years and a head sentence of 5 years, commencing on 24 August 2020. The sentence will expire on 23 August 2025.
2. Although the applicant became eligible for release on parole on 23 August 2023, he has not yet been released to parole and, in circumstances which will be explained below, is unlikely to be released prior to the completion of his sentence.
3. The sole ground of appeal is that the "aggregate sentence" (which may be taken to refer to the sentence as opposed to the non-parole period) was manifestly excessive. The notice of appeal was filed on 4 September 2023. An amended ground, filed on 30 October 2023 simply stated that the "sentence imposed" was manifestly excessive. The judge allowed a 25% discount for an early plea of guilty, so that the starting point for sentencing was 6 years 8 months. In accordance with the legislation in force at the relevant time, the maximum penalty for the offence was 20 years' imprisonment.
4. Although individuals have been sentenced for other offences under the Foreign Incursions Act (mainly involving preparation for incursions into foreign states) it appears that there is no prior case involving a person sentenced for the particular offence to which the offender pleaded, and there are unlikely to be many further offences, the Act having been repealed on 1 December 2014.
5. Given those circumstances, it will be appropriate to consider first the nature of the offence and then the general principles which should be applied in dealing with a ground of manifest excess where there are no clearly comparable cases and no specific error is alleged on the part of the sentencing judge.

Nature of offence

1. Section 6 of the Foreign Incursions Act relevantly provided as follows: 6 Incursions into foreign States with intention of engaging in hostile activities (1) A person shall not: (a) enter a foreign State with intent to engage in a hostile activity in that foreign State; or (b) engage in a hostile activity in a foreign State. Penalty: Imprisonment for 20 years. (2) A person shall not be taken to have committed an offence against this section unless: (a) at the time of the doing of the act that is alleged to constitute the offence, the person: (i) was an Australian citizen; or (ii) not being an Australian citizen, was ordinarily resident in Australia… . (3) For the purposes of subsection (1), engaging in a hostile activity in a foreign State consists of doing an act with the intention of achieving any one or more of the following objectives (whether or not such an objective is achieved); (a) the overthrow by force or violence of the government of the foreign State or of a part of the foreign State; (aa) engaging in armed hostilities in the foreign State; (b) causing by force or violent the public in the foreign State to be in fear of suffering death or personal injury; (c) causing the death of, or bodily injury to, a person who: (i) is the head of state of the foreign State; or (ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State; or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State. …
2. The indictment did not allege that the applicant entered Syria with the purpose identified in s 6(1)(a), but rather that, whilst in Syria, he engaged in a hostile activity, as identified in par (b). The particulars alleged in the indictment included each of the subpars of s 6(3).
3. Although not relevant to the charge laid against the applicant, it may be noted that s 7(1) made it an offence to do any of a number of activities which may be broadly identified as acts preparatory to the commission of an offence against s 6. The maximum penalty for an offence against s 7 was imprisonment for 10 years. A wide range of conduct was encompassed within the particulars of s 7.
4. The judge took a similar view of the range of activities which might be covered by s 6. Accordingly, the objective gravity of the offending could vary greatly, having regard to both the activities covered by s 6(1) and the objectives referred to in subs (3). [1]
5. It may be added that, unless the offender has publicised his or her activities (which to some extent occurred in the present case) or has admitted or boasted about things he had done, the basis of sentencing may well be a pale reflection of the activities which have in fact been undertaken. However, in circumstances where adverse factors must be established beyond reasonable doubt, the sentencing judge rightly took a limited view as to the findings he could make, beyond those which were agreed to or admitted by the applicant.
6. By way of example, the applicant downloaded or emailed to accounts operated by him a number of videos. In some he could be identified; in others, voices could be heard speaking, which the prosecution alleged included the applicant. However, the applicant gave evidence denying that it was his voice and said that the videos had been provided to him. The judge was not satisfied that he could identify the offender's voice on the videos and hence assessed the evidence on the more limited basis.

Principles in assessing manifest excess

1. Although s 5(1) of the Criminal Appeal Act 1912 (NSW) confers on a person convicted on indictment a right, with leave of the Court, to appeal against a sentence, it has long been accepted that the bases upon which a sentence can be challenged are limited. That is because, unless the sentence is fixed by law, the sentencing judge will be entitled to select the appropriate sentence from a possible range of sentences which might reasonably be considered to be open or available. Thus, in the well-known passage in House v The King, [2] the High Court referred to the kind of error which might be relied upon, including the sentencing judge acting upon a wrong principle, allowing extraneous or irrelevant matters to be taken into account or mistaking the facts. The joint judgment further stated: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
2. Taken at face value, it may be wondered how often, where detailed reasons are given by way of a sentencing judgment, an unidentified error-inferred-from-the-outcome could arise. When House was decided, reasons were undoubtedly brief, sometimes probably encapsulated within the discussion with the offender's legal practitioner and certainly not as detailed as is common today. Further, as the conventional description of a sentencing judgment as "remarks on sentence" indicates, often what the judge said had elements of a homily directed to the offender, and possibly in part to others in the court. Such a course is consistent with the objectives of personal and general deterrence. However, the judgment given in the present case was some 48 pages in length and carefully structured. In circumstances where the reasons reveal no error, it may be difficult to infer error from the outcome.
3. Modern cases dealing with sentencing principles have attempted to give a different operation to the ground of manifest error. In Vaiusu v R, [3] R A Hulme J sought to derive a number of principles from five judgments of the High Court delivered in the period from 1999 to 2010. The principles were as follows: "1 Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. 2 Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. 3 It is not to the point that this Court might have exercised the sentencing discretion differently. 4 There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. 5 It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
4. There is much in common in principles 1, 3 and 4. Further, there is a common element between principles 1 and 2 in that both assume a category of comparable cases, from which a range might be inferred. However, tempting as an encapsulation of principles may be, the statement is of little assistance in the present case where there is no possibility of establishing a range, given the dearth of comparable cases. That cannot mean, however, that the ground of manifest excess is unavailable. Rather, it means that the appeal court must undertake for itself the kind of synthesis of differing considerations which is required of a sentencing judge, [4] although, as discussed below, not for the purpose of fixing upon an actual sentence.
5. Although, as noted above, it appears that there have been no other cases involving this particular offence, the Court was invited to consider a number of other sentencing judgments involving similar offences, some of which might be described as terrorism-related, but, with two exceptions discussed below, all involved conduct occurring in Australia. The same catalogue was provided to the sentencing judge.

Facts on sentence

1. The brief chronology of this matter commences when the applicant left Sydney by air for Jordan on 25 September 2012. He stated on his outgoing passenger card that he was travelling to Jordan for three months to visit family. On 22 October 2012, he sent an email from his iPhone containing a 17-second video depicting a male aiming a rifle with a voice in the background saying "Abu Al Baraa sniping Alawites". Further emails were sent from the applicant's iPhone using his Yahoo email address and attaching videos. Between 22 October 2012, and 10 December 2012, the applicant sent 15 videos and 10 photographs to his Facebook account, many depicting him either armed with a Kalashnikov rifle or dressed in camouflage with chest-webbing and handcuffs. Two depicted men with rocket-propelled grenade launchers. In another the applicant has a recoilless anti-tank weapon attached to the chest-webbing of his camouflage clothing.
2. Most of the videos were accompanied by statements of the kind "Allah willing. Allah is the greatest. Praise Allah. Allah make their shooting accurate." In one a male voice says: "'[a] suicide mission, and the storming the regiment upon Abu Musaab Al-Zarkawi. God is the greatest. Shoot." A male fires five single shots. The muzzle flashes are visible in the video. In several there are armed males with a Shahada flag singing Nasheeds, a Nasheed being an Islamic chant without music; the Shahada flag carries a statement of faith for Muslims, professing a belief that Allah is the one and only God, and that the prophet Muhammed is his final prophet. The flag contains white Arabic writing on a black background. As the agreed facts stated: "[w]hile the Shahada is core Islamic belief, and is not necessarily a statement of extremism, the use of the Shahada flag and the variations of it have come to be associated with contemporary Jihad".
3. One video depicted males in a group singing: "We are with Al Furqan (creator of heaven and earth/criterion) Virgins are in Paradise. My heart is longing to the Paradise of the most merciful We are all with Al Furqan, Virgins are in Paradise The ruling of Jihad (Holy War) today (ind) Come on oh Muslim, get up, Virgins are in Paradise. … We will go back to Kabul No bush nor powell Oh disbelief, do not even try. Virgins are in Paradise."
4. Another video, entitled "bombing" was described as follows: "The video depicts a street-level view of a street. The air is filled with dust and smoke. The video appears to be taken following an explosion, blast or bombing. A male voice behind the camera speaks in Arabic as the camera footage moves through the rubble, and says, 'Allah is the greatest, bombings targeting a headquarters of Ahrar al-Sham'. … Ahrar al-Sham is not a prescribed terrorist organisation, however at times it has been willing to cooperate with the Al Qaeda affiliate, Jabhat al-Nusra."
5. The applicant gave evidence and was cross-examined about the videos and the photos at some length. Parts of the cross-examination are set out by the sentencing judge and other evidence was summarised. He gave evidence that he had originally gone to Syria to try to locate his brother-in-law whom he believed had been a member of the Syrian government forces, but had deserted and was being held in custody somewhere. The judge accepted that evidence, no doubt in part because the applicant returned to Syria in 2013 with $5,000 which he intended to use as ransom to get his brother-in-law out. He was in fact kidnapped, the money taken, and his family were required to pay a further US$60,000 for the applicant's release.
6. In considering the hostile activities undertaken by the applicant in Syria, the sentencing judge made the following findings: [5] "The offender's purpose for entering Syria was to find - and, if possible, seek the release of - his brother-in-law. In order to achieve that, the offender crossed into Syria and made contact with the FSA [Free Syrian Army]. Once, there, the offender enthusiastically, over several weeks, engaged in a number of hostile activities which included being armed with loaded rifles, carrying a recoilless anti-tank weapon, clearing rubble and general encouragement. On one occasion, the offender also recklessly fired a weapon over a wall. All of these services can be seen to have provided some assistance to the FSA in their ongoing hostile activities which form part of the prolonged civil war in Syria. In relation to s 6 subs (3) of the Act, I find the offender undertook these hostile activities with the intention of achieving the overthrow, by force or violence of the Syrian government - s 6(3)(a) - and engaging in armed hostile activities - s 6(3)(aa). However, that said, I find the offender's conduct was limited both in terms of its duration - said to be 3 weeks - and by its nature, and the offender played a fairly minor role in his participation in the hostile activities. I regard his conduct as well below the midrange of seriousness for this offence."
7. The sentencing judge concluded that general deterrence remained an important sentencing consideration but gave limited weight to specific deterrence. He noted submissions by counsel for the applicant that "although this factor is usually given significant weight, given the delay of 8 years, the ongoing contact the offender had with the authorities after his return, the experience he suffered on his return to Syria in 2013 and the extremely onerous custodial environment he will remain in during his sentence, the Court would find that specific deterrence in protection of the community need not play a significant role in the sentence imposed". [6] The judge accepted those submissions.
8. While allowing a 25% discount for the utilitarian value of the offender's plea, the judge was not satisfied that his plea demonstrated an intention to facilitate the course of justice, although it had that effect. The judge had difficulty in finding contrition, observing that "contrition requires not only a formal admission of guilt by the making of a plea of guilty, but the acknowledgement of wrongdoing and a degree of repentance. Although the offender in evidence eventually said that he did regret his actions, I found his answers disingenuous and he failed to demonstrate a sincere acknowledgement of wrongdoing". [7]
9. The judge considered hardship to others, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), stating: "There is clear and compelling evidence that given the circumstances of the offender's incarceration, his family have suffered greatly and will continue to suffer hardship. Such hardship does not need to be exceptional to be taken into account. I will take into account the probable effect that this sentence will have on the offender's family and dependants."
10. The judge also gave attention to the likely custodial conditions, stating: "The offender has been in custody since his arrest in April of 2020. He has been held in the HRMCC at Goulburn since 13 May 2022. These conditions are extremely onerous and significantly more so than the general prison population. I also accept and take into account that the offender has experienced additional restrictions and difficulties due to the COVID-19 virus."
11. The judge took into account the fact that he had served an earlier sentence for fraud offences (committed after the foreign incursion offence), of which almost the entirety of the non-parole period had been served in the High Risk Management Correctional Centre (HRMCC) at Goulburn, not because of those offences, but because of the pending charge. That affected the commencement date for the present sentence.
12. For reasons which will be noted shortly, the judge dealt with the non-parole period in the following terms: [8] "I am required by s 19AB of the Crimes Act to fix a non-parole period for Commonwealth offences. There is no statutory or judicially-determined normal ratio between the non-parole period and the total sentence. Accordingly, my discretion to determine the total sentence, the non-parole period and the parole period, is not constrained by any formula or norm. The non-parole period is to be determined by what, in all the circumstances of the case, ought to be the minimum period of actual incarceration … ."
13. The offender was informed that he would become eligible for release on parole on 23 August 2023.

Comparable cases

1. The sentencing judge gave little weight to comparable cases to which he had been referred. He was entitled to do that, and it was not suggested in this Court that significant assistance was obtained from them. However, two cases had sufficient similarity to warrant consideration. The first was R v Elmir. [9] Mr Elmir was sentenced for a preparatory offence of flying to Turkey, being accepted into a safe house run by Islamic State, and collecting military equipment, with the intention of crossing the border into Syria. He did not in fact enter Syria, and was charged with the preparatory offence under s 119.4 of the Criminal Code (Cth).
2. From 2014, the substantive offence of entering a foreign country with the intention of engaging in hostile activities was to be found in s 119.1(1); the offence for which the present applicant was convicted was to be found in s 119.1(2). Each of the offences, including that of undertaking preparatory acts, engaged a potential penalty of imprisonment for life. Although Mr Elmir never entered Syria and only spent about two months in Turkey, he received a sentence of imprisonment for 5 years and 5 months with a non-parole period of 4 years and 1 month. His appeal, which did not allege a manifestly excessive sentence, was rejected. [10]
3. Mr Elmir not having given evidence, the sentencing judge did not accept statements made to his psychologist and psychiatrist that he had renounced his affiliations with Islamic State, nor that he had renounced his own extreme views. However, in that respect there was a degree of similarity with the present case, where the sentencing judge found evidence given by the applicant as to contrition to be disingenuous.
4. Mr Elmir obtained a 10% discount for a plea entered on the first day of his trial, so that the starting point for the sentence was six years. If that sentence were taken to provide some guidance in the present case, it would be difficult to find that the present sentence was not within an appropriate range. Although allowance must be made for the difference in maximum penalties (Mr Elmir faced a maximum life sentence), in both cases the offending was found to be below the midrange in terms of objective seriousness and, in any event, the conduct engaged in by the applicant, who successfully entered Syria and engaged in hostile activities "enthusiastically", may be taken as more serious than that engaged in by Mr Elmir.
5. Nor can Mr Elmir's sentence be treated as an outlier. The offender in R v Biber [11] unsuccessfully appealed against a sentence of imprisonment for 4 years and 9 months, with a non-parole period of 2 years and 6 months, imposed for an offence under s 6(1)(a) of the Foreign Incursions Act. Mr Biber travelled to Turkey and then entered Syria in July 2013, left some three months later and was arrested in Turkey. Although he entered Syria with the intention of engaging in armed hostilities, his activities did not extend beyond training and, in particular, target practice. The objective seriousness of the offending was characterised by the sentencing judge (Adamson J) as "well below the midrange". [12] An appeal by the Commonwealth Director of Public Prosecutions against the inadequacy of the sentence was dismissed.
6. Accepting the difficulty of finding truly comparable cases, it is necessary to have regard to the nature of the activities, the range of conduct which may be caught by s 6(1) of the Foreign Incursions Act, the subjective circumstances of the offender and the only relevant statutory guidepost, namely the maximum penalty of 20 years imprisonment. That exercise is not undertaken in order to fix a sentence, but rather for the less precise task of determining whether the sentence in fact imposed was manifestly excessive.
7. In undertaking that exercise, the unchallenged findings of the sentencing judge as to relevant matters pursuant to s 16A of the Crimes Act should be accepted, as should the assessment of objective seriousness.
8. For the applicant, this was a first offence of its kind; there was no repetition during the eight years between the date the offence was committed and the sentencing, and the judge accepted that the applicant's intention in entering Syria was not to engage in hostile activity himself, but to locate his brother-in-law. These factors suggest that the maximum penalty provides little assistance in determining the appropriate sentence. Nevertheless, the actual involvement of the applicant in hostile activities, the finding that he did so enthusiastically, together with the obvious doubts entertained by the sentencing judge as to the existence of true remorse or contrition, mean that, despite the applicant giving evidence, his subjective circumstances did little to assist his case. More importance might be attached to the hardship to his family which, as noted above, was a factor appropriately taken into account by the sentencing judge.
9. Weighing these various factors, and without giving significant weight to the sentencing in other cases, it is not possible to regard the sentence imposed, subject to one qualification which follows, as manifestly excessive.

The statutory scheme

1. Maintaining the ratio of the non-parole period to the head sentence of 60%, the starting point, prior to reduction was a sentence of 6 years and 8 months, with a non-parole of 4 years. The differential was therefore 2 years and 8 months, or, as in the case of the discounted sentence, 40% of the sentence period. The judge expressly fixed the period, in accordance with established principle, [13] as the minimum period of actual incarceration required in the circumstances.
2. The sentencing judge stated that he was required by s 19AB of the Crimes Act to fix a non-parole period, but that was not strictly correct. Although s 19AB(1) so states, it is subject to subs (3). The section relevantly provides: 19AB When court must fix non-parole period (1) Subject to subsection (3), a court must fix a single non-parole period in respect of a federal sentence or federal sentences if: … (b) the court imposes the sentence or sentences on the person… … Non-parole period not appropriate (3) A court may decline to fix a non-parole period under this section if: (a) the court is satisfied that a non-parole period is not appropriate, having regard to: (i) the nature and circumstances of the offence…; and (ii) the antecedents of the person …. (4) If the court declines to fix a non-parole period, the court must: (a) state its reasons for so declining; and (b) cause the reasons to be entered in the records of the court.
3. Section 19AG identifies certain offences as "minimum non-parole offences" for which a non-parole period must be fixed (the power conferred under s 19AB(3) is withdrawn) [14] and the non-parole period must be at least 3/4 of the sentence: s 19AG(2)(a). Section 19AG was not engaged in the present case.
4. As will be considered shortly, in dealing with non-parole periods, s 19AK provides that a court is "not precluded from fixing a non-parole period … merely because the person is, or may be, liable to be deported from Australia".
5. Division 5, subdiv A of Pt 1B of the Crimes Act, contains provisions which are relevant to consideration of whether or not to impose a non-parole period. First, the purposes of parole are identified: 19AKA Purposes of parole The purposes of parole are the following: (a) the protection of the community; (b) the rehabilitation of the offender; (c) the reintegration of the offender into the community.
6. It is not necessary to identify the matters that may be considered in making a decision about parole, which are set out in 13 paragraphs in s 19ALA. Relevantly for present purposes, there is an important restriction on the power to make a parole order in s 19ALB: 19ALB Decisions about parole orders - terrorism and control orders (1) Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order. (2) This subsection covers the following persons: (a) a person who has been convicted of a terrorism offence, including a person currently serving a sentence for a terrorism offence; (b) a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism); (c) a person who the Attorney-General is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part. Determining exceptional circumstances in relation to persons under 18 years of age (3) In determining whether exceptional circumstances exist to justify making a parole order in relation to a person who is under 18 years of age, without limiting the matters the Attorney-General may have regard to, the Attorney-General must have regard to: (a) the protection of the community as the paramount consideration; and (b) the best interests of the person as a primary consideration.
7. Although foreign incursions (or now foreign interference) is dealt with separately from terrorism, namely in Pt 5.2 of the Criminal Code, whereas terrorism is dealt with in Pt 5.3, s 19ALB(2) is not limited to terrorism offences but extends to persons covered by par (c), dealing with "terrorist acts". The definition of "terrorist act" at the commencement of Pt 5.3 of the Criminal Code, s 100.1(1), is as follows: terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3) and; (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of … a … foreign country …; or (ii) intimidating the public or a section of the public. Elements of the definition of terrorist act (2) Action falls within this subsection if it: … (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; … (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: … (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. … References to person, property or public (4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia.

Relevant sentencing principles affecting the application of s 19ALB

1. The application of s 19ALB pursuant to subs (2)(c) turns upon the satisfaction of the Attorney-General, which will not be known at the time of sentencing. Nevertheless, there would have been good reason to assume, at that time, that the Attorney would be so satisfied in relation to the activities of the applicant. If that were to be assumed, the power to release on parole was removed, unless the Attorney were also satisfied that "exceptional circumstances" existed to justify the making of the order. While the term "exceptional circumstances" cannot be defined, the circumstances engaging the generic purposes of parole will not suffice, unless there is some matter specific to the circumstances of the offender. It was not suggested by the Director that any such circumstances existed in the present case.
2. Evidence before this Court, admitted without objection, revealed that, the applicant's non-parole period having expired, his application for parole was refused on the basis that the Attorney was satisfied that s 19ALB was engaged, and that no exceptional circumstances had been established. There was also acceptance by the Director of evidence called in another matter, to which reference will be made shortly, demonstrating that of 53 applications for parole made by persons subject to s 19ALB, none has resulted in a parole order.
3. In these circumstances, three questions arise, namely (i) is a sentencing judge permitted, or obliged, to consider declining to fix a non-parole period where it appears the offender will be subject to s 19ALB; (ii) is the judge entitled to take that matter into account in fixing the length of the sentence, and (iii) is error demonstrated in this case by the evidence that the applicant has in fact been refused parole on that ground?
4. In considering the answers to those questions, three principles must be addressed: each of which is well established, but the question is which, if any, apply.
5. First, it is no part of the sentencing judge's function to have regard to the likelihood or otherwise of the offender being granted parole by the relevant executive authority on completion of his non-parole period. In particular, the Court should not assume that the offender will be released at that time, or any other time prior to the completion of the head sentence. The importance of the principle, in most cases, is that the overall sentence cannot be extended to allow what the judge might consider an appropriate period under supervised release in the community.
6. Secondly, the possibility, or likelihood, of deportation is to be disregarded. That proposition followed from the judgment of the High Court in The Queen v Shrestha, [15] the principle now having statutory authority in relation to federal offences, pursuant to s 19AK of the Crimes Act. At least, the Court is "not precluded" from fixing a non-parole period merely because the person is or may be liable to deportation: that does not mean that liability to deportation may not be taken into account in determining whether or not to fix such a period, although in practice it is routinely disregarded.
7. Thirdly, a sentencing court will have regard to the likely circumstances attending any period of incarceration. For example, if the judge is satisfied on the evidence that an offender is likely to face more onerous conditions than other offenders, that factor is taken into account in fixing the period of imprisonment. Similarly, circumstances which are out of the ordinary and may cause hardship to some or even the whole of a prison population may be taken into account in determining the appropriate term of imprisonment. Effects of the lockdowns which occurred during the height of the COVID-19 pandemic are taken into account in sentencing (or resentencing) offenders subject to such conditions. At 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 appropriate courses, is likely to adversely affect the offender and his or her mental condition.
8. Some further explanation of the source and scope of these principles is necessary.

Fixing a non-parole period

1. As noted above, the requirement that a non-parole period be the minimum period for which the sentencing judge finds that the offender should be held in custody derives from Power v The Queen. The alternative, rejected in Power, was that the non-parole period be the minimum period needed, not by way of punishment, but for the parole authority to consider the possible rehabilitation of the person, as had been held by this Court in Reg v Sloane. [16]
2. Prior to the Crimes (Amendment) Act 1950 (NSW), release before the expiration of the sentence imposed by a court depended upon the grant of a licence by the Governor, pursuant to s 463 of the Crimes Act 1900 (NSW). The 1950 Act, replaced by the Parole of Prisoners Act 1966 (NSW), formalised the process by establishing a parole board with power to make parole orders.
3. Although in Power the High Court disapproved references to a "minimum sentence" and a "maximum sentence", [17] by 1989 New South Wales legislation had adopted the terms "minimum term" and "additional term". [18] However, the minimum term was clearly intended to encapsulate the concept of a minimum term of imprisonment that the person must serve for the offence, with an additional term "during which the person may be released on parole".

Relevance of reduction for remissions

1. It is a long-established principle of the general law that a sentencing court is not entitled to take into account the possibility, even the likelihood, of release by an executive act before a sentence imposed by a court has run its course. In R v Yates [19] the Victorian Court of Criminal Appeal sat a five-judge bench to consider the correctness of that principle. The matter was of particular concern at a time when both the sentence and the minimum term were subject to reduction on account of remissions, and the possibility of early release under licence. Thus, an offender subject to imprisonment for ten years with a minimum term of eight years was able to seek release after four years. As the Court noted, "[w]hereas on the one hand many might think that a sentence of ten years or even of eight years is in the circumstances too great a sentence for a man of 68 years of age, the same view would probably not be taken of a period of incarceration of just over four years". The Court noted that sentencing in those circumstances might be described as "an elaborate charade". [20] Nevertheless, the Court concluded that the likely exercise of discretionary powers by the executive, both with respect to parole and remission, were to be disregarded by the sentencing court. The justification, adopted from a passage in the judgment of Jenkinson J in Attorney-General v Morgan [21] was that: "The liberty of the subject under the common law is not to be set at hazard upon a statistical probability, nor curtailed in the expectation, no matter how well grounded, that an agent of the Executive Government or a Parole Board will choose to set him free before the law's sentence has run its course."
2. However, where the expectation sought to be relied upon is one of non-release after the expiration of the minimum term fixed by the Court, some different justification will be necessary. Similarly, where the principle upon which release will be refused is fixed by law, and is not a mere statistical probability, other considerations intrude.

Relevance of likelihood of deportation

1. With respect to persons liable to deportation, there was a question whether it might be appropriate to refuse to fix a non-parole period in such a case. In R v Chi Sun Tsui [22] this Court accepted that the power in s 21(1)(b) of the Probation and Parole Act 1983 (NSW) (which was in terms similar to s 19AB(3) set out above), was wide enough to permit consideration of the prospect of deportation, and that the effect of deporting a prisoner immediately on becoming free would subvert the policy of the parole legislation. Nevertheless, Street CJ (Slattery CJ at CL agreeing) concluded that a further provision which required that the Parole Board not refuse to release a prisoner on parole by reason that he or she may become liable to be deported, contradicted the apparent breadth of the factors relevant to a consideration of whether to decline to fix a non-parole period.
2. Roden J agreed, with the following additional point: [23] "I would add that in my view the specification or refusal to specify a non-parole period is an integral part of the sentence to which it refers, and has a real bearing on the severity of that sentence."
3. As Roden J noted, Gibbs ACJ had made a similar observation in The Queen v Carngham, [24] in addressing a question whether a sentence of imprisonment for 2 years, coupled with an order for conditional release on recognizance after 12 months, constituted a "sentence" for the purposes of an appeal against inadequacy of a sentence under s 5D of the Criminal Appeal Act 1912 (NSW). Gibbs ACJ stated that in such circumstances, "it is not possible to sever the order for release and to treat it as something separate and distinct from the sentence of imprisonment. Such an order would be meaningless if it were not made in conjunction with the sentence of imprisonment to which it relates. On the other hand, the sentence of imprisonment itself would have a materially different effect if it were not for the order for release". [25]
4. Roden J then continued in Chi Sun Tsui: "Precisely the same considerations apply to a non-parole period or minimum term. To refuse to specify a non-parole period for the reason that it was probable that the prisoner would be deported, amounts to an increase in the severity of the relevant sentence for a reason which ought to be regarded as irrelevant for sentencing purposes."
5. The imposition of a sentence without a non-parole period, commonly referred to as a fixed term sentence, need not be the same as the sentence imposed with a non-parole period. A fixed term sentence is usually to be equated with a non-parole period. [26] There is, of course, no rigid rule, and a judge imposing a fixed term may increase the length by some proportion of what might otherwise be the release eligibility period to take into account the possibility that the offender might not have been released and, if released, would continue to be subject to constraints on his or her liberty. Nevertheless, it seems anomalous to assume that the sentence imposed where the judge declines to fix a non-parole period will be the sentence imposed as a fixed term.
6. This conclusion finds implicit support in s 45(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that a court may decline to set a non-parole period for an offence which is subject to a standard non-parole period "only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set". That demonstrates that, at least as a minimum, a fixed term would not be less than the appropriate non-parole period.
7. In The Queen v Shrestha [27] the Commonwealth Director of Public Prosecutions submitted that it could never be open to a court to impose a non-parole period on a person in a category identified as "foreign offenders who have no ties to this country, and whose sole purpose in entering Australia is to commit serious crimes". The majority (Deane, Dawson and Toohey JJ) rejected the submission, primarily on the basis that it discriminated against a class of prisoners based on "their origins, their place of residence and their family ties". The majority also declined to accept the proposition that the existence of a period of eligibility for parole served no useful purpose. In reaching that conclusion, the function of parole was described in the following terms: [28] "The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody."
8. Further, the majority reasons described the parole system as representing "an important influence for the reform and rehabilitation of those in gaol" by providing "a basis for hope of earlier release and in turn an incentive for rehabilitation". [29] The judgment continued: "From this flow two significant and valuable consequences. The first is that the prisoner is likely to be better behaved while in confinement. The second is that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self-respect and to enjoy some real prospects of eventual rehabilitation. In the harsh context of a prison environment, the potential advantages - in terms of hope, self-esteem, incentive for reform and rehabilitation - which eligibility for release on parole offers a prisoner in an Australian jail should not be underestimated."
9. Implicitly accepting that the benefits of supervised release in the community may not be available, the majority referred to the possibility of release in circumstances which were not directly related to rehabilitation: [30] "Circumstances can arise in which mitigation of sentence by release on parole is justified upon purely compassionate grounds. An obvious example is where a prisoner who has become eligible for release on parole is terminally ill. Another example is where the severe illness or other unusual needs of the spouse or infant children of a prisoner are strong grounds for release. It is true that it is only in exceptional circumstances that the mitigation of punishment for reasons of compassion, rather than rehabilitation, will justify release on parole."
10. Compassionate release, where it rose to the level of exceptional circumstances, is potentially available to the applicant, and others who fall within the scope of s 19ALB; nevertheless, there appear to have been no such cases since the provision came into operation on 12 December 2019. That is despite the fact that most of the period of its operation has coincided with the period of the COVID-19 pandemic.
11. One issue is whether evidence as to the practice of the Commonwealth with respect to deportation might be admitted as relevant "background" on sentencing. In Shrestha, Brennan and McHugh JJ identified three issues (of which this was the third) in the following passage: [31] "The solution to the problem of parole for a foreign offender depends, in our opinion, on three matters: first, on the construction and operation of the statute which prescribes the considerations to which regard might be had in making or refusing to make an eligibility-for-parole order; next, on the purpose and incidents of a judicial eligibility-for-parole order; and, finally, on the extent to which and the manner in which an executive practice may be taken into account in exercising a judicial discretion."
12. As to the first matter, the minority reasons stated: [32] "It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public."
13. The minority considered that it was a material fact, and not a matter of discrimination against non-citizens, that an offender was not, and was not likely to become, a resident in considering whether any public benefit was to be gained by an early release to conditional freedom. [33] The minority continued: "So to hold is not to subordinate the proper exercise of a judicial discretion to the exigencies of executive policy. Justice according to law cannot be moulded by the exercise of executive power. But the administration of justice according to law cannot be blinkered merely because the likelihood of the occurrence of a material fact depends on the implementing of executive policy; much less can it ignore the laws which prescribe a regime the proper understanding of which is essential to the informed performance of the court's function."
14. There appears to have been no objection to the receipt of evidence of executive practice, if this were a permissible consideration.
15. It is apparent that all members of the High Court treated the fixing of a minimum term as a benefit to the offender: that no doubt followed from the fact that it was the Director who sought to prohibit such an outcome. However, that depended on the offender serving a fixed term of the same length as the sentence which would be imposed with a minimum term. There may be cases in which that would not be correct and the fixed term would be lower than the sentence with a non-parole period and where a parole order would have been unlikely.
16. A more recent synopsis of the position with respect to the relevance of a deportation order may be found in Director of Public Prosecutions (Cth) v Besim (No 3), [34] which dealt with both susceptibility to deportation and likelihood of obtaining parole: "50 Thus, as pointed out by counsel for the appellant, the Courts of this State have, for decades, applied the principle that, in determining the sentence to be imposed on an offender, the court should not speculate as to the prospects that the particular offender might or might not be granted parole at the completion of his or her non-parole period. 51 It should be noted that the courts have adopted a similar approach to the question whether a sentencing judge should take into account the possibility that an offender might be deported at the completion of the sentence. In that respect, there exists a division of opinion among the intermediate courts of appeal of the States as to whether the prospect that an offender may be deported at the completion of the term of imprisonment is relevant to the determination of the sentence. 52 In Victoria, the prevailing view is that the court should only take into account that prospect if it is able to make a 'sensible quantification of the risk' of deportation faced by the particular offender. The apparent rationale for that approach is that, if the offender is deported, that would constitute an additional hardship, or punishment, on the offender. In addition, the court would take into account, in an appropriate case, the degree of strain and stress caused to the offender by his or her knowledge, during the term of imprisonment, that the offender might be deported at the conclusion of the term of imprisonment."
17. The issue in Besim was whether allowance could be made in sentencing for the possibility that a continuing detention order would be made upon completion of the sentence. Without finally determining that it should have no role, the Court held that, with respect to "the role of protection and incapacitation in the determination of the sentence" it was irrelevant. That was consistent with the ruling in Muldrock v The Queen [35] with respect to a similar regime in New South Wales.
18. Arguably the case closest to the present circumstances is Wray v Regina. [36] The offender, Mr Wray, having been convicted of sexual offences, nevertheless continued to protest his innocence. That position had two cascading consequences, as established by evidence. One was that he would not be accepted into Custody Based Intensive Treatment program, (CUBIT) whilst serving his sentence. The second was that, as a sex offender, unless he had completed the program, he would not be considered for release on parole. Hislop J (McClellan CJ at CL agreeing) dismissed the submission that the court could take those consequences into account, on the basis of authority. However, Hulme J, while ultimately reaching a similar conclusion as to the outcome, took a more nuanced approach to the issue raised. Hulme J noted that the Court was entitled to take judicial notice of, or inform itself about, "the harshness or otherwise of the conditions under which a sentence is served"; in that he included the practices of the parole authority. [37] Characteristics of the offender which are likely to make imprisonment bear more harshly upon that offender than offenders generally are also taken into account. [38] Hulme J further noted that in R v Hallocoglu [39] the Court had taken evidence as to administrative changes in the way that a sentence of periodic detention was administered, to determine whether such a sentence was less severe than had previously been assumed. Hulme J then stated: "8 The portion of a sentence spent in actual custody is undoubtedly harsher than time spent on parole. Given that other factors bearing on the harshness [of] a sentence are taken into account in the determination of its length, there is much to be said for the view that, if the evidence justifies the conclusion that a particular prisoner will not be granted parole (or granted it for a significantly shorter period than envisaged by the sentence), that fact should be taken into account."
19. One difficulty with the justification for the conclusion is that it assumes the sentence anticipates a particular period of supervised release. Sentencing judges frequently speak of the period necessary to promote rehabilitation and reintegrate the offender into the community, but such language is based on an assumption, not an assessment of likely events. Nevertheless, the underlying proposition that if the Court has regard to the harshness of the conditions in which an offender is detained, it may have regard to two further circumstances, namely (i) the consequences with respect to the effect on the prisoner of the knowledge that he or she will not be released on parole, and (ii) the objective effect, that the period of the custodial sentence will be increased.
20. In the circumstances in Wray, these considerations had little impact on the outcome. Hulme J was not persuaded that the offender would necessarily maintain his refusal to concede his guilt. Further, any benefit he might obtain from the considerations on which he relied were offset by the implication which might be derived from his attitude, namely that he was at significant risk of reoffending, a factor which gave added emphasis to personal deterrence and protection of the community. [40]

The operation of s 19ALB

1. In AH v R, [41] the applicant had entered a plea of guilty to one count of preparation for a terrorist act contrary to s 101 of the Criminal Code, for which the maximum penalty was life imprisonment. He was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years. The Court took into account, on resentencing, the fact that, once transferred from a juvenile facility, on turning 21 years of age, he was he was placed in the highest security area of the HRMCC at Goulburn. The Court noted the applicant's submission that "his experience of custody has been more onerous because of the more than 20 months he spent in the HRMCC", which was accepted by the Director as a relevant factor and was taken into account. [42]
2. The Court also noted that s 19ALB, enacted after he was sentenced, but which applied to him, had "initially" been relied upon on resentence. He provided evidence of 53 applicants serving sentences to which the section applied who had sought parole between 1 January 2018 and 11 November 2022 all being refused. The Court noted that the applicant deposed to the fact that "he felt depressed and upset when he heard about the offenders in the HRMCC being denied parole as he [had] understood that if he continued his efforts towards rehabilitation he would be released into the community on parole": at [110]. However, the Court stated that it was: [43] "… conceded on behalf of the applicant that the effect of s 19ALB did not directly relate to the exercise of the sentencing discretion but to the potential grant of parole. We accept that to be the case, although the utility of including a non-parole period in such cases may be queried, if for all practical purposes, no offender will be released on parole."
3. The Court then sentenced the applicant to imprisonment for 7 years and 6 months, with a non-parole period of 75% of the head sentence. (The proportion fixed by s 19AG as for a "minimum non-parole offence".)

Application of principles

1. The question is whether either the terms of s 19ALB, or the established practices of the Commonwealth Attorney, are irrelevant considerations which were required to be disregarded in sentencing the applicant.
2. Despite earlier statements that matters of executive policy should not be taken into account in considering whether to set a non-parole period, or in relation to the length of the sentence, in each case the outcome has been (or has been perceived to be) favourable to the offender. The present case does not turn upon whether it was appropriate to fix a non-parole, but rather, whether the sentencing judge should have taken into account the fact that the applicant was most unlikely to be granted parole absent the kind of circumstance posited in Shrestha as rare, involving compassionate grounds not directly related to questions of rehabilitation. Whether the judge should have had regard to such matters was raised in AH v R, but the concession in that case that they could not "directly" affect the sentence left the issue unresolved.
3. In the language of Brennan and McHugh JJ in Shrestha, the Court should not be "blinkered" as to the practical consequences of imposing a non-parole period which has little if any utility. The expectation (now a reality) that parole would be refused, combined with the fact that the applicant 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.
4. In my view, that warrants a reduction in the sentence imposed by the sentencing judge. Although this application of s 19ALB was not raised with the judge in the sentencing hearing, and no account was taken of it for that reason, that failure was nevertheless an error in principle. The issue was squarely raised in the applicant's submissions in this Court, though as a matter to be taken into account on resentence. As the history of proceedings following the recasting of the proper construction of provisions concerning the standard non-parole period by the High Court in Muldrock v The Queen demonstrates, it is appropriate for this Court, on an application for leave to appeal against sentence where it can now be seen that the offender has suffered a miscarriage of justice, to grant leave, apply the correct principles, and resentence the applicant.
5. Two further matters should be addressed. First, it may be accepted that the effects of s 19ALB are being applied to identify error in the original sentence, and not merely as a matter going to resentence after error is otherwise established. However, the issue having been squarely raised by the applicant, both in written submissions and at length during oral submissions, [44] it was addressed by the Director [45] and no unfairness can result from the applicant's submissions being deployed at the first stage of the appeal and not only on resentencing.
6. Secondly, it is true that the finding of an excessive sentence has flowed from the identification of a specific error, and not merely by assessing the outcome of the sentencing process against a putative appropriate range. Again, however, no unfairness is visited on the Director by that course.
7. Where there has otherwise been no error established on the part of the sentencing judge, there is no basis to interfere with the non-parole period of 3 years. However, the additional term of two years should be reduced to one year, being a sentence expiring on 23 August 2024. That variation recognises that the applicant will not get parole when ordinarily he would likely have obtained parole before the end of his sentence. If compassionate grounds amounting to exceptional circumstances arise within that period there is a chance he will obtain conditional release, but the chance is low and his liberty will then be subject to supervision.

Orders

1. I propose the following orders: 1. Grant leave to appeal and allow the appeal. 2. Set aside the sentence and resentence the applicant to imprisonment for 4 years, with a non-parole period of 3 years, the sentence having commenced on 24 August 2020 will expire on 23 August 2024.
2. DAVIES J: I agree with Basten AJA.
3. CAVANAGH J: I agree with Basten AJA.

Endnotes

1. Sentencing judgment, pp 40-41.
2. (1936) 55 CLR 499 at 505; [1936] HCA 40.
3. [2017] NSWCCA 71 at [28].
4. See Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
5. Sentencing judgment, p 41.
6. Sentencing judgment, p 42.
7. Sentencing judgment, p 43.
8. Sentencing judgment, p 47.
9. R v Elmir (No 3) [2019] NSWSC 1040 (Davies J).
10. Elmir v R [2021] NSWCCA 19 (McCallum JA, Garling and Wright JJ agreeing).
11. [2018] NSWCCA 271.
12. R v Biber [2018] NSWSC 535 at [105].
13. Power v The Queen (1974) 131 CLR 623, 627-629; [1974] HCA 26; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [36]-[44].
14. See s 19AG(5)(d).
15. (1991) 173 CLR 48; [1991] HCA 26.
16. [1973] 1 NSWLR 202 (Kerr CJ, Jacobs P, Hope JA and Begg J (the last with qualifications)).
17. Power at 529.
18. Sentencing Act 1989 (NSW), s 5.
19. [1985] VR 41 (Young CJ, Starke, Crockett, Murphy and Hampel JJ).
20. Yates at 43.
21. (1980) 7 A Crim R 146 at 156; Yates at 47.
22. (1985) 1 NSWLR 308 (Street CJ, Slattery CJ at CL, Roden J).
23. Chi Sun Tsui at 312.
24. (1978)140 CLR 487; [1978] HCA 48.
25. Carngham at 492.
26. Lipchin v R [2013] NSWCCA 77 at [16] (Hidden J, Bathurst CJ and Button J agreeing); Collier v R [2012] NSWCCA 213 at [56] (R A Hulme J); R v Dunn [2004] NSWCCA 346 at [161] (Handley JA, James and Howie JJ); Tuvunivono v R [2013] NSWCCA 176 at [10].
27. See fn 15.
28. Shrestha at 67.
29. Shrestha at 69, quoting Bugmy v The Queen (1990) 169 CLR 525 at 536; [1998] HCA 18.
30. Shrestha at 69-70.
31. Shrestha at 60.
32. Shrestha at 63.
33. Shrestha at 64.
34. (2017) 52 VR 303; [2017] VSCA 180 (Warren CJ, Weinberg and Kaye JJA).
35. (2011) 244 CLR 120; [2011] HCA 39.
36. [2007] NSWCCA 162; 171 A Crim R 583.
37. Wray at [4].
38. Wray at [6].
39. (1992) 29 NSWLR 67 at 73-74 (Hunt CJ at CL).
40. Wray at [17].
41. [2023] NSWCCA 230 (Leeming JA, N Adams and Dhanji JJ).
42. AH at [108].
43. AH at [111].
44. CCA Tcpt, 15/11/2023, pp 8(20)-11(25).
45. Ibid, pp 13(10)-14(46).

Amendments 05 December 2023 - Delete Order (1). Order (2) now becomes (1) and (3) becomes (2). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023