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[1] This is a matter which has been referred to the Full Court pursuant to s21 of the Supreme Court Act by Angel J. The question which is raised by the reference is whether under s43(5)(c) or (d) of the Sentencing Act, when a court restores a sentence or part of a sentence which is for a period of twelve months or longer and orders the offender to serve it, the court has the power to fix a non-parole period pursuant to s53(1) of the Act. In my opinion, that question must be answered "Yes".

[2] The relevant provisions to be considered are s113, s53(1), s43 and s59 of the Sentencing Act. It is also relevant to consider s7 which deals with sentencing orders. I do not think it is necessary to go into much detail. Precisely the same question as we have been asked to determine has been answered affirmatively by the Court of Appeal of Victoria in the case of R v Hatch (1998) 3 VR 693; in (1997) 95 A Crim R 46; where Callaway JA with whom Batt JA agreed, considered the relevant provisions of the Victorian Sentencing Act 1991. The comparable provisions of the Victorian Act are in pari materia with the relevant provisions of the Northern Territory Act. In Hatch, their Honours had no doubt, after considering the construction given to the various sections, that when a court restored a sentence or part of a sentence and ordered the offender to serve it, whenever the sentence was for twelve months or longer, the court had the power to fix a non-parole period. We agree with their Honours and note that the same argument was accepted by Kearney J in the case of R v Walsh, unreported, reasons given 12 April 1999. In another case, which was the judgment of my own (R v Dare, unreported, 20 February 1997) I did not have the benefit of argument put to me on that occasion and that case was incorrect and must be overruled.

[3] The submission of Mr McDonald QC for the applicant, which was supported by Mr Wild QC for the respondent, was based upon the reasoning of Callaway JA in R v Hatch, supra. The same result can also be arrived at in another way. It may be argued that when a sentence of imprisonment is imposed, the Judge makes a "sentencing order", the terms of which vide s7 are to "record a conviction and order that the offender serve a term of imprisonment...". Section 53(1), which provides for the fixing of a non-parole period, uses the expression "where a Court sentences an offender to be imprisoned...". Clearly the draftsperson had in mind that when a court sentenced an offender to be imprisoned, the court would be making an order that the offender serve a term of imprisonment. The same language is used by s43(5)(c) and (d) where the expression used is "restore the sentence or part sentence held in suspense and order the offender to serve it.".

[4] Accordingly, in my opinion, we ought to hold that in the circumstances where, under s43(5)(c) or (d), a court restores a sentence or part of a sentence which is for a period of twelve months or longer and orders the offender to serve it, the court does have the power to fix a non-parole period, pursuant to s53(1) of the Sentencing Act. I would order that the matter be remitted to Angel J for further consideration as to whether or not his Honour ought to fix a non-parole period in the circumstances of this case.