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Court of Criminal Appeal 29 November 2023

Hatahet v R

[2023] NSWCCA 305

Public order & justice offences
CRIME SENTENCING CRIMES ACT 1914 (CTH), S 19ALB PAROLE REFUSED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hatahet v R [2023] NSWCCA 305
Court: Court of Criminal Appeal, New South Wales
Date: 29 November 2023
Judge(s): Basten AJA (principal judgment); Davies J and Cavanagh J (agreeing)

Background

The applicant pleaded guilty to engaging in hostile activity in a foreign country, contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). He had travelled to Syria in 2012 with the stated purpose of securing the release of his brother-in-law, whom he believed was being held by an armed group. After arriving in Syria, however, he participated in a number of hostile activities with the Free Syrian Army, a coalition of rebel militias operating against the al-Assad Government.

At first instance, Baker SC DCJ sentenced the applicant to a head sentence of five years' imprisonment with a non-parole period of three years, commencing 24 August 2020. The sentencing judge applied a 25% discount for an early guilty plea, placing the starting point at six years and eight months. The maximum penalty for the offence was 20 years' imprisonment.

The applicant became eligible for parole on 23 August 2023, but parole was refused by the Commonwealth Attorney-General under s 19ALB of the Crimes Act 1914 (Cth), which requires parole to be refused, absent special circumstances, to persons convicted of offences involving terrorist acts. The applicant sought leave to appeal on the ground that his sentence was manifestly excessive, arguing in part that the near-impossibility of obtaining parole should have reduced the head sentence imposed.

  • Whether a sentencing court, when dealing with an offence to which the parole-restriction in s 19ALB of the Crimes Act 1914 (Cth) applies, may or should take that provision into account when determining sentence.
  • Whether evidence of the executive practice of refusing parole in such cases was relevant to sentencing.
  • Whether the fact that parole had been refused, and was most unlikely ever to be granted, warranted a reduction of the head sentence as manifestly excessive.
  • What effect, if any, the absence of realistic parole prospects has on the conditions of imprisonment and thus on the exercise of sentencing discretion.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, reducing the head sentence from five years to four years while leaving the three-year non-parole period undisturbed.

On the general principle concerning parole, the Court confirmed the well-established rule that a sentencing court does not ordinarily take into account the likelihood of early release on parole. That principle is protective in nature: it prevents a sentence from being artificially extended to allow for a period of community supervision that the court regards as desirable. However, the Court drew an important distinction. While the sentencing court does not adjust a sentence upward to compensate for anticipated parole, it is equally well-established that a court will have regard to the likely circumstances of an offender's incarceration, including evidence that those circumstances will be more onerous than for other prisoners.

The Court reasoned that fixing a non-parole period for a person who has no realistic prospect of release on parole is itself likely to adversely affect that person's mental condition and the overall burden of imprisonment. A court should not be "blinkered" to the practical consequences of imposing a non-parole period with little or no utility. In the present case, parole had already been refused at the time the appeal was heard, and the applicant had spent the majority of his sentence in a High-Risk Management gaol, conditions more onerous than those experienced by ordinary prisoners. The sentencing judge's failure to address s 19ALB in that context was an error in principle.

The Court concluded that, although the original sentence was not manifestly excessive in itself, the error in principle required resentencing. The appropriate remedy was a reduction of the head sentence. The non-parole period was not disturbed, because the Court found no basis to interfere with that aspect of the original sentence.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Head sentence set aside and replaced with imprisonment for four years, with a non-parole period of three years, commencing 24 August 2020 and expiring 23 August 2024.

Key Takeaways

  • A sentencing court does not ordinarily adjust a sentence based on the likelihood of parole, but this protective principle operates in one direction only: it prevents extension of sentences, not reduction where onerous conditions flow from the unavailability of parole.
  • Where statute or executive practice means parole is practically unavailable, the resulting impact on conditions of imprisonment is a legitimate sentencing consideration. Fixing a non-parole period that has no realistic utility can itself increase the burden of imprisonment on an offender.
  • The Court of Criminal Appeal confirmed that s 19ALB of the Crimes Act 1914 (Cth), which restricts parole for offences involving terrorist acts, is a factor a sentencing court should address when imposing sentence for such offences, particularly where the offender has already been confined in a High-Risk Management gaol.
  • An error in principle at first instance, even where the original sentence was not independently characterised as manifestly excessive, can still warrant appellate intervention and resentencing.
  • Because the Foreign Incursions Act 1978 (Cth) was repealed on 1 December 2014, comparator cases for the specific s 6(1)(b) offence are scarce. The Court noted this as a feature of the sentencing exercise, requiring close attention to principle rather than comparable outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6, 7
- Crimes Act 1914 (Cth), ss 16A, 19AB, 19AG, 19AK, 19AKA, 19ALA, 19ALB, Pt 1B
- Criminal Code (Cth), Pts 5.2, 5.3, ss 100, 101, 119
- Crimes Act 1900 (NSW), s 463
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Criminal Appeal Act 1912 (NSW), ss 5, 5D

Key Cases:
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Director of Public Prosecutions (Cth) v Besim (No 3) (2017) 52 VR 303; [2017] VSCA 180
- AH v R [2023] NSWCCA 230
- R v Biber [2018] NSWCCA 271; [2018] NSWSC 535
- Elmir v R [2021] NSWCCA 19; R v Elmir (No 3) [2019] NSWSC 1040
- Bugmy v The Queen (1990) 169 CLR 525
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- Lipchin v R [2013] NSWCCA 77
- Collier v R [2012] NSWCCA 213