The King v Hatahet [2024] HCA 23

HIGH COURT OF AUSTRALIA

GORDON A-CJ,

STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

THE KING APPELLANT

AND

FAYEZ HATAHET RESPONDENT

The King v Hatahet

[2024] HCA 23

Date of Hearing: 14 May 2024

Date of Judgment: 12 June 2024

S37/2024

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of New South Wales made on 29 November 2023 (as amended on 5 December 2023) and, in their place, order that:

(a) leave to appeal against sentence be granted; and

(b) the appeal be dismissed.

On appeal from the Supreme Court of New South Wales

Representation

R J Sharp KC with O P Holdenson KC and C J Tran for the appellant (instructed by Director of Public Prosecutions (Cth))

M J Avenell SC with P R Coady for the respondent (instructed by Legal Aid NSW)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The King v Hatahet

Criminal law (Cth) – Sentence – Where respondent convicted under s 6 of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Where s 19ALB of Crimes Act 1914 (Cth) provides Attorney‑General must not make parole order in relation to person involved in, or convicted of, certain terrorist‑related activities unless "exceptional circumstances exist to justify making a parole order" – Where sentencing judge sentenced respondent without taking into account likelihood (if any) of release on parole by reason of s 19ALB of Crimes Act – Where parole subsequently refused by Attorney‑General pursuant to s 19ALB of Crimes Act – Whether Court of Criminal Appeal erred in concluding that sentencing judge should have considered application of s 19ALB when sentencing respondent – Whether Court of Criminal Appeal erred in concluding that expectation that parole would be refused due to an application of s 19ALB warranted imposition of lesser sentence.