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Court of Criminal Appeal 29 May 2026

Khouri v DPP (NSW)

[2026] NSWCCA 68

Public order & justice offences

Citation: Khouri v DPP (NSW) [2026] NSWCCA 68
Court: Court of Criminal Appeal (NSW)
Date: 29 May 2026
Judge(s): Bell CJ (primary judgment); N Adams CJ at CL (agreeing at [29]); R A Hulme AJ (agreeing at [30])

Background

The appellant was serving the parole period of an existing sentence of 9 years and 6 months imprisonment, imposed by the District Court in June 2020. The non-parole period of that sentence (5 years and 8 months) had expired on 30 April 2024, and the head sentence was due to expire on 29 February 2028.

Between February and November 2025, while on parole, the appellant committed five sets of offences. The Local Court imposed an aggregate sentence of 18 months imprisonment, commencing on 27 November 2025 and expiring on 26 May 2027, with a 12-month non-parole period. This new sentence fell entirely within the parole period of the existing sentence.

On appeal to the District Court against severity of sentence, the appellant argued that s 58(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) prevented the Local Court from imposing the new sentence because it would end more than five years after the existing sentence began. Beckett DCJ referred a question of law to the Court of Criminal Appeal under s 5B(1) of the Criminal Appeal Act 1912 (NSW).

  • Does "existing sentence of imprisonment" in s 58(1) of the CSP Act refer to the full term of the sentence (the head sentence) or only the non-parole period?
  • Where a new sentence of imprisonment is wholly subsumed within the parole period of an existing sentence, is it "served consecutively" with the existing sentence so as to engage the five-year limitation in s 58(1)?
  • Does the imposition of a new sentence during the parole period of an existing sentence have the effect of extending the non-parole period of that existing sentence, thereby rendering the new sentence consecutive or partly consecutive?

Decision

The Court answered the stated question "No, provided that the 'new sentence' is not wholly or partly consecutive upon the non-parole period of the existing sentence."

Bell CJ held that "existing sentence of imprisonment" in s 58(1) bears its natural and ordinary meaning, referring to the full term of the sentence, not just the non-parole period. The bespoke definitions in ss 55(4), 56(5), and 57(3) of the CSP Act, which equate "sentence of imprisonment" with the non-parole period, are expressly confined to those respective sections. Parliament did not replicate that definition in s 58, and the Court declined to read it in.

Accepting the appellant's construction would have produced what the Court described as a "perverse or absurd outcome." It would effectively confer immunity from imprisonment for summary offences committed during an existing parole period, where those offences could only be dealt with summarily. The Court applied well-established principles of statutory construction, including Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation and Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees' Federation, in rejecting an interpretation that would produce such an absurd result.

The appellant's alternative argument, that the exercise of the power in s 55(2) of the CSP Act to impose a concurrent or consecutive sentence had the effect of extending the non-parole period of the existing sentence, was also rejected. Section 55(4) is predicated on the non-parole period having been set by the original sentencing judge. A second sentencing court, in exercising the power under s 55(2), neither in form nor substance extends the non-parole period of the existing sentence. Bell CJ also observed that, even on the appellant's own construction, the new sentence would not have been "consecutive" because it commenced on 27 November 2025, well after the non-parole period expired on 30 April 2024.

Orders Made

  • The stated question was answered: "No, provided that the 'new sentence' is not wholly or partly consecutive upon the non-parole period of the existing sentence."

(The matter would return to the District Court for determination of the severity appeal in light of this answer.)

Key Takeaways

  • Under s 58(1) of the CSP Act, the term "existing sentence of imprisonment" refers to the full head sentence, not just the non-parole period. The bespoke definitions in ss 55(4), 56(5), and 57(3) are confined to those respective sections and do not apply to s 58.

  • A new sentence of imprisonment that is wholly subsumed within the parole period of an existing sentence is not "served consecutively" with that existing sentence for the purposes of s 58(1), and the five-year limitation is therefore not engaged in those circumstances.

  • Section 55(2) of the CSP Act does not operate to extend the non-parole period of an existing sentence when a new sentence is imposed during the parole period of the existing sentence.

  • Adopting a construction that would equate "existing sentence" in s 58(1) with the non-parole period alone would create an absurd result: effective immunity from imprisonment for summary offences committed during parole where those offences must be dealt with summarily.

  • In reaching its conclusion, the Court of Criminal Appeal applied established High Court authority on statutory construction, confirming that courts will reject a literal construction that produces outcomes clearly at odds with the purpose and context of the legislation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 44, 47(6), 49(1), 55, 56, 57, 58
- Crimes (Appeal and Review) Act 2001 (NSW), ss 5B(1), 11
- Criminal Appeal Act 1912 (NSW), s 5B(1)
- Criminal Procedure Act 1986 (NSW), ss 3, 7(1), ch 5
- Crimes Act 1900 (NSW), ss 91J, 91K, 546D(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11A, 15, 17, Pt 2 Div 1
- Summary Offences Act 1988 (NSW), ss 5, 8, 11A, 11F

Cases:
- Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
- Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees' Federation (1917) 24 CLR 85; [1917] HCA 64
- Harris v Sydney Glass & Tile Co (1904) 2 CLR 227; [1904] HCA 47
- R v Thompson [2025] NSWCCA 133