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Non Parole Period and Recognizance Release Orders

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Non Parole Period and Recognizance Release Orders

The content on this page was last reviewed on 03 May 2016.

Related links:
Conditional Release Orders After Conviction

Recent cases alert
Mason (a pseudonym) v The King [2023] VSCA 75 — s 16AC requires that an indicative non-parole period for cooperation must be given where an indicative head sentence is provided.
DPP (Cth) v Haynes [2017] VSCA 79 — recognizance release order after 10 months in custody does not fall within sound exercise of sentencing discretion as offender used false identity and six of eight victims were children when committed sexual harassment offences via the internet contrary to Commonwealth Criminal Code.
Afiouny v The Queen [2017] NSWCCA 23 — no error in imposition of additional 8 month non-parole period where offender already serving federal sentence as one year parole period not unusual for defrauding the revenue offences.
Street v Tasmania Police [2016] TASSC 52 — s 19AH not exhaustive and fixing of single non-parole period a fundamental error that vitiated exercise of sentencing discretion in relation to all sentences imposed.
R v Hudson [2016] SASCFC 60 — whether sentencing judge had power to recall and amend sentence should have been considered in light of new s 19AHA of the Crimes Act 1914 (Cth) rather than s 9A of the Criminal Law (Sentencing) Act 1988 (SA).
*Guidance from these cases has not yet been incorporated into the commentary

Recent legislative amendments
Non-parole periods for terrorist offenders: The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth) amends section 19AG of the Crimes Act 1914 (Cth) by inserting a new s 19AG(4A)-(4B) to require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence as provided for in subsection 19AG(2) unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration.
*Guidance from these amendments has not yet been incorporated into the commentary

1. Overview

Part IB Division 4 of the Crimes Act 1914 (Cth) sets out detailed provisions governing the fixing of non-parole periods and making of recognizance release orders in respect of federal sentences.

A ‘non-parole period’ and ‘recognizance release order’ are defined in s 16(1) of the Crimes Act 1914 (Cth):

Section 16(1):

“non-parole period”, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.

“recognizance release order” means an order made under paragraph 20(1)(b)

A court can only make orders under Division 4 of the Crimes Act 1914 (Cth) in respect of federal sentences.

A court is not empowered to fix a single non-parole period or make a recognizance release order in respect of both federal sentences of imprisonment and state or territory sentences of imprisonment: s 19AJ.

A court is not precluded from fixing a non-parole period in respect of a federal sentence merely because the person is or may be, liable to be deported from Australia: s 19AK; see Deportation.

The fixing of a non-parole period for a federal offender who has had a parole order or licence automatically revoked is governed by s 19AR, and the fixing of a non-parole period after discretionary revocation of parole is governed by s 19AW. See further Release on Parole or Licence.

1.1 Suspended Sentences

Section 20(1)(b) gives a court power to suspend a sentence, upon provision of security of the kind referred to in s 20(1)(a).  The court may order that the person be released immediately or after they have served a specified period of imprisonment in respect of that offence: s 20(1)(b). An order made under s 20(1)(b) is a recognizance release order.

See further: Conditional Release Bonds after Conviction.

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2. When a court must fix a non-parole period or make a recognizance release order

2.1 Federal offender not already serving or subject to a federal sentence

Sections 19AB(1) and 19AC(1) and s 19AC(3)(a) apply where a person is not already serving or subject to a federal sentence at the time the sentence is imposed.

When sentencing a federal offender not already serving or subject to a federal sentence, the Act distinguishes between:

Federal sentence/s exceeding three years
Federal sentence/s not exceeding three years
Federal sentence/s not exceeding six months

An exception to a court’s obligations under ss 19AB(1) and 19AC(1) exists if the court is satisfied that a non-parole period or recognizance release order is not appropriate having regard to the nature and circumstances of the offence/s and to the antecedents of the person, or where the person is expected to be serving a state or territory sentence on the last day of the federal sentence: ss 19AB(3) and 19AC(4) respectively; see below 2.3 Declining to fix a non-parole period or make a recognizance release order.

2.1.1 Federal sentence/s that exceed three years

Where a court imposes a federal sentence that:

  • exceeds 3 years, or
  • federal sentences that, in aggregate, exceed 3 years (if the person was convicted of these offences at the same sitting (s 19AB(1)(a)), or
  • the court imposes a federal life sentence

the court must fix a single non-parole period: s 19AB(1).

2.1.2 Federal sentence/s that do not exceed three years

Where a court imposes a federal sentence that:

  • does not exceed 3 years, or
  • federal sentences that, in aggregate, do not exceed 3 years (if the person was convicted of these offences at the same sitting (s 19AC(1)(a))

the court must make a single recognizance release order and must not fix a non-parole period:  s 19AC(1).

2.1.3 Federal sentence/s that do not exceed six months

Where a court imposes a federal sentence that:

  • does not exceed six months, or
  • federal sentences that, in aggregate, do not exceed six months

the court may make a single recognizance release order: s 19AC(3)(a). Hence, the court is not required to set a recognizance release order and may impose a sentence without a recognizance release order.

Where the court decides that neither a non-parole period nor a recognizance release order is appropriate the court must state its reasons and cause those reasons to be entered into the records of the court:  ss 19AB(4) and 19AC(5).

2.2 Federal offender currently serving or subject to a federal sentence

Federal offenders that are currently serving or subject to a federal sentence may either be

(i) in prison, or
(ii) on parole/recognizance.

2.2.1 Offenders in prison and serving or subject to a federal sentence

Sections 19AB(2),  19AC(2) and s 19AC(3)(b) apply where a person is already serving or subject to a federal sentence at the time the new sentence is imposed.

When sentencing a federal offender currently serving or subject to a federal sentence, and the offender is in prison, the Act distinguishes between:

Federal sentence/s exceeding three years
Federal sentence/s not exceeding three years
Federal sentence/s not exceeding six months

An exception to a court’s obligations under ss 19AB(2) and 19AC(2) exists if the court is satisfied that a non-parole period or recognizance release order is not appropriate having regard to the nature and circumstances of the offence/s and to the antecedents of the person, or where the person is expected to be serving a state or territory sentence on the last day of the federal sentence: Crimes Act 1914 (Cth) ss 19AB(3) and 19AC(4) respectively; see below 2.3 Declining to fix a non-parole period or make a recognizance release order.

2.2.1.1 Federal sentence/s that exceed three years

Where a court imposes a further federal sentence that:

  • results in a federal life sentence, or where the unserved portions of the federal sentences, in aggregate, exceed 3 years, and
  • at the time the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence (s 19AB(2)(c))

a court must fix a single non-parole period in respect of all federal sentences: s 19AB(2).

2.2.1.2 Federal sentence/s that do not exceed three years

Where the court imposes a further federal sentence

  • the unserved portions of the federal sentences, in aggregate, do not exceed 3 years, and
  • at the time the person is not already subject to a recognizance release order in respect of a federal sentence (s 19AC(2)(c))

a court must make a single recognizance release order in respect of all federal sentences and must not fix a non-parole period: s 19AC(2).

2.2.1.3  Federal sentence/s that do not exceed six months

Where the court imposes a further federal sentence and the unserved portions of the federal sentences, in aggregate, do not exceed six months a court may make a single recognizance release order.

However, the court is not required to set a recognizance release order and may impose a sentence without a recognizance release order:  s 19AC(3)(b).

Where the court decides that neither a non-parole period nor a recognizance release order is appropriate the court must state its reasons and cause those reasons to be entered into the records of the court: ss 19AB(4) and 19AC(5).

2.2.2 Offenders on parole or recognizance in respect of a federal sentence

The totality principle operates where a federal offender is on parole, serving an existing non-parole period or recognizance release order in respect of a federal sentence and a further federal sentence is imposed. See further Totality Principle.

Sections 19AD and s 19AE require the court to reconsider the non-parole period or recognizance release order in relation to the overall sentence.

2.2.2.1 On Parole

If a federal sentence is to be imposed upon a federal offender who is serving an existing non-parole period in respect of a federal sentence, regard must be had to s 19AD.

Section 19AD(2) requires the court to consider relevant circumstances including:

and following that consideration, do one of the following things:

  • make an order confirming the existing non-parole period (s 19AD(2)(d));or
  • fix a new single non-parole period in respect of all federal sentences the person is to serve or complete (s 19AD(2)(e)); or
  • cancel the existing non-parole period and decline to fix a new non-parole period (s 19AD(2)f)). If the court decides to cancel the existing non-parole period the court must state its reasons and cause those reasons to be entered in the records of the court (s 19AD(5)).

Where s 19AD applies, the court must not make a recognizance release order: s 19AD(4).

2.2.2.2 On Recognizance

If a federal sentence is to be imposed upon a federal offender who is subject to an existing recognizance release order in respect of a federal sentence, regard must be had to s 19AE.

Section 19AE requires the court to consider the relevant circumstances, including:

and following that consideration, do one of the following things:

  • make an order confirming the existing recognizance release order (s 19AE(2)(d));or
  • make a new recognizance release order in respect of all federal sentences the person is to serve or complete (s 19AE(2)(e)); or
  • if as a result of the further federal sentence, the person is to serve or complete a federal life sentence, orthe aggregate of the unserved portion exceeds 3 years, the court may decide it is appropriate to fix a single non-parole period (s 19AE(2)(f));
    1. The non-parole period will be treated as having superseded the existing recognizance release order (s 19AE(4)(a));
    2. The non-parole period must not be such as to allow the person to be released on parole earlier than they would have been released under the existing recognizance release order (s 19AE(4)(b)); or
  • cancel the existing recognizance release order and decline to make a new recognizance release order (s 19AE(2)(g)). If the court decides to cancel the existing recognizance release order the court must state its reasons and cause those reasons to be entered in the records of the court (s 19AE(5)).

2.3 Declining to fix a non-parole period or make a recognizance release order

The Court has a discretion to decline to fix a non-parole period or make a recognizance release order under ss 19AB(3) or 19AC(4). The Court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned, and to the antecedents of the person, the court is satisfied that neither is appropriate.

The Court may decline to do either:

  • if having regard to the nature and circumstances of the offence or offences concerned, and to the antecedents of the person, the court is satisfied that neither is appropriate; or
  • if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.

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3. Court to explain purpose and consequences

Where a federal sentence is imposed with either a non-parole period or a recognizance release order fixed in respect of the sentence, the court is required to explain or cause to be explained to the person the purpose and consequences of the non-parole period or recognizance release order: s 16F.

The federal provision explicitly requires an explanation to be in ‘language likely to be readily understood by the person’: ss 16F(1)-(2).

In respect of a federal sentence imposed with a non-parole period the explanation must include, pursuant to s 16F(1):

(a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and

(b) that, if a parole order is made, the order will be subject to conditions; and

(c) that the parole order may be amended or revoked; and

(d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfill those conditions.

In respect of a federal sentence imposed with a recognizance release order the explanation must include, pursuant to s 16F(2):

(a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and

(b) of the conditions to which the order is subject; and

(c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and

(d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.

For example, see the explanation provided by Whealy J in R v Ronen [2005] NSWSC 991, [128]-[132] and the order given to the appellant’s legal advisers in R v Nguyen [2005] NSWCCA 362, [107] (Grove J).

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4. Length of non-parole periods

Section 19AF provides that the non-parole period or pre-release period is not to exceed the remitted sentence.

Section 19AF

(1) Where a court is required to fix a non-parole period or make a recognizance release order in respect of a federal sentence or sentences, the court must fix a non-parole period that ends, or make a recognizance release order such that the pre-release period ends, not later than the end of the sentence, or of the last to be served of the sentences, as reduced by any remissions or reductions under section 19AA.

(2) This section does not restrict the length of the non-parole period or the pre-release period in respect of a life sentence or sentences that include such a sentence.

4.1 No judicially determined norm or starting point

There is no judicially determined norm or starting point, expressed as a percentage of the head sentence or otherwise, for the period that a federal offender should actually serve in prison before release on a recognizance release order, or being eligible for release on parole: Hili v The Queen; Jones v The Queen [2010] HCA 45, [44].

It is an error to begin from some assumed ‘norm’, and then seek to identify ‘special circumstances’ justifying departure from that norm.1

 Rather, a court must consider all the circumstances, including the matters listed in ss 16A(1)-(2) when making recognizance release orders and fixing non-parole periods.2

4.1.1 Same principles apply to both non-parole periods and recognizance release orders

The principles governing the fixing of the length of a non-parole period are generally applicable to the fixing of the length of a pre-release period under a recognizance release order: R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, [46] (Keane and Fraser JJA).3

In Lam v The Queen [2014] WASCA 114 the Court noted that the principles to be applied in determining the pre-release and non-parole periods may not always be interchangeable, stating that ‘[a] recognisance release order can be used to impose what is, in substance and effect, a different type of sentence, being a suspended term of imprisonment as distinct from a term of immediate imprisonment.’4

However, the Court concluded that ‘there can be no doubt that the law stated by the High Court in Hili is intended to apply to the determination of the non-parole period under the Crimes Act’,5 as well as the pre-release period under recognizance release orders.

4.1.2 Consistency in setting non-parole periods and making recognizance release orders

It is important to achieve consistency in the fixing of non-parole periods and making of recognizance release orders for federal offenders.6

 This should be achieved by applying the relevant statutory provisions.7

 The provisions in div 4 of pt IB of the Crimes Act 1914 (Cth) provide a separate regime for fixing a pre-release period, rather than relying on applied state and territory legislation.8

 Accordingly, state and territory legislation concerning non-parole periods and recognizance release orders has no application to the sentencing of federal offenders.8

Consistency should also be achieved by having regard to what has been done in other cases. Past sentences should provide guidance to sentencing judges, and stand as a yardstick against which to examine a proposed sentence.9

 However, they do not fix the boundaries within which future judges must, or even ought, to sentence.9

 See further: Consistency in Federal Sentencing.

The Crimes Act 1914 (Cth) does not require the pre-release period to bear any particular relationship to the head sentence.10

 The relationship between pre-release periods and head sentences imposed in the past are a general guide, and must not control or fetter the proper exercise of a sentencing judge’s discretion.11

To the extent that the non-parole periods ‘customarily’ imposed reflect the erroneous past practice of relying on a narrow range expressed as a proportion of the head sentence to determine the non-parole period, they are an unreliable yardstick or benchmark for consistency purposes.12

However, it is permissible to identify the pre-release period by reference to its proportionate relationship to the head sentence.13

 In Lam v The Queen [2014] WASCA 114 McLure P (Buss and Newnes JJA agreeing) noted at [54]:

Hili does not disapprove of the identification of the non-parole period by reference to its proportionate relationship to the head sentence.  Indeed that approach is statutorily approved in s 19AG of the Crimes Act.  Further, as a matter of sentencing practice, and having regard to the purpose of parole, it is a natural reference point and is the best tool for measuring consistency in the application of the relevant sentencing principles.

4.2 Factors relevant to setting the non-parole period and making recognizance release orders

A court must consider all the circumstances, including the matters listed in ss 16A(1)-(2) when making recognizance release orders and fixing non-parole periods.14

Section 16A(1) provides that ‘a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’. In Hili, the High Court held that what is the ‘severity appropriate’ is determined having regard to the general principles identified in Power v The Queen [1974] HCA 26, Deakin v The Queen [1984] HCA 31 and Bugmy v The Queen [1990] HCA 18.14

In Power v The Queen [1974] HCA 26 and Deakin v The Queen [1984] HCA 31 it was held that the length of the non-parole period should be the ‘minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence’.15

 The minimum term of imprisonment is not fixed by reference to consideration of the time necessary for the parole authority to determine the offender’s progress towards rehabilitation.16

In Bugmy v The Queen [1990] HCA 18 Mason CJ and McHugh J noted at [531]:

[C]onsiderations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence.  Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

In Power v The Queen [1974] HCA 26, [10] and Deakin v The Queen [1984] HCA 31, [3] it was noted that the purpose of parole is to

…provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.

In Lam v The Queen [2014] WASCA 114 McLure P (Buss and Newnes JJA agreeing) explained the effect of the approach approved in Hili at [56]-[57]:

[T]he effect of Hili is that the same sentencing considerations that increase the head sentence can have a different and additional effect on the length of the non-parole period.  That is, sentencing factors which count against mitigating punishment in favour of rehabilitation can increase both the head sentence and the proportion that the non-parole period bears to the head sentence.

[However, McLure P cautioned:]

…
Conversely, because a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence.  However, as Power makes clear, there is a limit below which the non-parole period cannot go.  It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.

4.3 Non-parole periods for sentences for certain offences

In 2004, s 19AG was inserted into Part IB of the Crimes Act 1914 (Cth). Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to s 19AG: s 19AG(5).

Section 19AG(1) introduced minimum non-parole offences which are offences against:

A court must fix a single non-parole period of at least 3/4 of the sentence imposed for a minimum non-parole offence or the aggregate of the sentences imposed for minimum non-parole offences: s 19AG(2).

The court may set a higher non-parole period if it considers this appropriate in the circumstances of the case.

A life sentence for a minimum non-parole offence is taken to be a sentence of imprisonment for 30 years (s 19AG(3)(a)) such that a minimum non-parole period for a life sentence would be 22 1/2 years.

The Supplementary Explanatory Memorandum for the Anti-Terrorism Act 2004 (Cth) which inserted s 19AG into the Crimes Act 1914 (Cth) provides:

The Australian Government is concerned that sentences for convicted terrorists should reflect community concern about terrorism. The significant period of time served out in the community, on parole (which is in most cases necessary to reintegrate prisoners back into the community) is not warranted in the case of terrorists and does not reflect community concern about their crime.
…
The Government also considers that a minimum non-parole period is also appropriate for the very serious offences of treason, treachery and espionage.

The non-parole period should be set in respect to all federal sentences the person is to serve or complete (s 19AG(2)) and it does not matter if not all of the federal sentences are minimum non-parole offences: s 19AG(3)(b)(iii).

If the person was subject to a recognizance release order, the non-parole period supersedes the order: s 19AG(4).

4.3.1 Court not to set lower head sentence

The operation of s 19AG does not mean courts should set lower head sentences. In R v Lodhi [2006] NSWSC 691, Whealy J noted at [105]:

I do not however accept the submission made on the offender’s behalf that, because of the operation of s 19AG, it is in some way necessary to fix a lower head sentence than might otherwise have been appropriate.

As a consequence, in the present matters, it is my conclusion that a non-parole period of 15 years should apply. This is consistent with the legislation and with the submissions made on behalf of the Crown. Moreover, I consider that both the head sentence and the proposed non-parole period I have selected reflect adequately and appropriately the application of the general sentencing principles I have stated. Any lesser sentence would not, in my view, adequately address those important sentencing principles in the case of this offender and would, in relation to the proportion between the non-parole period and the head sentence, be inconsistent with the terms of the legislation.

This sentence was upheld by the New South Wales Court of Criminal Appeal in Lodhi v The Queen [2007] NSWCCA 360. Price J stated at [261]-[262]:

Section 19AG imposes a statutory fetter upon the exercise of judicial discretion by prescribing a non-parole period of at least ¾ for those offences found in s 19AG(1) which are described as “minimum non-parole” offences. A “terrorism offence” is a minimum non-parole offence: s 19AG(1)(b). Section 3 defines a “terrorism offence” to include offences against Part 5.3 of the Criminal Code within which Part the offences of which the appellant was convicted fall. Section 19AG does not detract in any way from the obligation of a sentencing Judge to first impose a proportionate sentence before considering the non-parole period.

Whealy J rejected the appellant’s submission that because of the operation of s 19AB it was necessary to fix a lower head sentence than might otherwise have been appropriate. His Honour did not err in doing so and this ground of appeal fails.17

4.3.2 Section 19AG and inchoate offences

The reference to a ‘terrorism offence’ in s 19AG includes a conspiracy to perform a terrorism offence, as defined in s 11.5 of the Commonwealth Criminal Code: Fattal v The Queen [2013] VSCA 276, [212] (Buchanan AP, Nettle and Tate JJA).

In Fattal v The Queen [2013] VSCA 276, the Court considered an argument that s 19AG did not apply to the offender, as he had been convicted of conspiring to do any act in preparation, or planning for, a terrorist act.18

Section 11.5(1) of the Commonwealth Criminal Code creates the discrete statutory offence of conspiracy, and provides that the offence is ‘punishable as if the offence to which the conspiracy relates had been committed’. The offence of conspiracy is not included as a ‘terrorism offence’ in s 19AG as defined in s 3 of the Crimes Act 1914 (Cth).

The Court rejected the submission. Buchanan AP, Nettle and Tate JJA stated at [207]-212]:

Aweys submitted there had been neither a jury finding nor a final judicial determination that he had committed a ‘terrorism offence’ as defined under s 3 of the Crimes Act.  He submitted that even if s 11.5(1) of the Criminal Code is interpreted as deeming him to be punished for having committed a terrorism offence under Part 5.3 of the Criminal Code, he has not been ‘convicted’ of that offence.  The two conditions precedent under s 19AG(1) of the Crimes Act must have different meanings or the latter would be otiose.  He contended that the word ‘convicted’ is ambiguous and in the face of ambiguity, an interpretation that favours the liberty of the subject should be preferred.

The difficulty Aweys faces is that there is a response which wholly defeats his submission based on the construction of s 19AG.  Section 11.6 of the Criminal Code provides that where a Commonwealth law refers to an offence it is to be taken to refer also to offences involving attempt, incitement or conspiracy to commit that offence.  Thus, when s 101.6(1) creates the criminal offence of doing any act in preparation for, or planning, a terrorist act it is to be taken to include also the criminal offence of conspiring to do any act in preparation, or planning for, a terrorist act, by reason of 11.6 of the Criminal Code.
…

It follows that the reference in s 3 of the Crimes Act to an offence against Part 5.3 of the Criminal Code, which includes the offence of doing an act in preparation for, or planning a terrorist act, contrary to s 101.6(1) of the Criminal Code, must be taken to include the offence of conspiring to do an act in preparation for, or planning a terrorist act.  So too s 19AG, when referring to ‘a terrorism offence’, must be interpreted to include a conspiracy to perform a terrorism offence.  On this construction, Aweys was both convicted of a terrorism offence and sentenced in respect of that offence.

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5. Failure to fix a non-parole period or make a recognizance release order

Failure to comply fully with the Act in respect to fixing non-parole periods or making recognizance release orders does not affect the validity of the sentence: Crimes Act 1914 (Cth) s 19AH(1).

Section 19AH

(1) Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:

(a) that failure does not affect the validity of any sentence imposed on a person; and

(b) the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act.

(2) A court shall not, for the purposes of subsection(1), be taken to have failed to fix a non-parole period in respect of a sentence or sentences in respect of which it has made a recognizance release order or to have failed to make a recognizance release order in respect of a sentence or sentences in respect of which it has fixed a non-parole period.

(3) Application under subsection(1) to the court that has sentenced a person may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the person was sentenced.

6. Rectification of errors in sentences, non-parole periods and recognizance release orders

Section 19AHA applies where a sentencing order19 reflects an error of a technical nature, has a defect of form or contains an ambiguity: s 19AHA(1).

Examples of errors of a technical nature include: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter: s 19AHA(1).

An error, defect or ambiguity mentioned in s 19AHA(1) does not affect the validity of the sentence: s 19AHA(2).

The Court, may on its own initiative, at any time, by order, amend the sentencing order to rectify the error, defect or ambiguity: s 19AHA(3).

On application at any time by the Attorney-General, DPP or other person the Court must, by order, amend the sentencing order to rectify the error, defect or ambiguity: s 19AHA(4).  

The court may amend the order whether or not it is constituted the same way it was when the person was first sentenced: s 19AHA(5). An amendment of a sentencing order does not affect any right of appeal against a sentence: s 19AHA(6).

Unless the court orders otherwise, the amendment is taken to have had effect from the date of effect of the sentencing order: s 19AHA(7).

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  1.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩]
  2.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J).[↩]
  3.  See also Lam v The Queen [2014] WASCA 114, [53] (McLure P, Buss and Newnes JJA agreeing); Sayed v The Queen [2012] WASCA 17, [124] (Buss JA, Martin CJ & Hall J agreeing); De Hollander v The Queen [2012] WASCA 127, [77] (Buss JA, McLure P and Mazza JA agreeing). [↩]
  4.  Lam v The Queen [2014] WASCA 114, [52] (McLure P, Buss and Newnes JJA agreeing) (emphasis in original). [↩]
  5.  Lam v The Queen [2014] WASCA 114, [53] (McLure P, Buss and Newnes JJA agreeing). [↩]
  6.  Hili v The Queen; Jones v The Queen [2010] HCA 45,  [46]-[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩]
  7.  Hili v The Queen; Jones v The Queen [2010] HCA 45,  [50] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩]
  8.  Hili v The Queen; Jones v The Queen [2010] HCA 45,  [52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩][↩]
  9.  Hili v The Queen; Jones v The Queen [2010] HCA 45,  [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩][↩]
  10.  Bertilone v The Queen [2009] WASCA 149, [56] (Buss JA, McLure and Miller JJA agreeing) quoted with approval in Sayed v The Queen [2012] WASCA 17, [123] (Buss JA, Martin CJ and Hall J agreeing); Ljuboja v The Queen [2011] WASCA 143, [111] (Buss JA, Hall J agreeing).  [↩]
  11.  Bertilone v The Queen [2009] WASCA 149, [58] (Buss JA, McLure and Miller JJA agreeing) quoted with approval in Sayed v The Queen [2012] WASCA 17, [123] (Buss JA, Martin CJ and Hall J agreeing); Ljuboja v The Queen [2011] WASCA 143, [111] (Buss JA, Hall J agreeing). [↩]
  12.  Lam v The Queen [2014] WASCA 114, [58] (McLure P, Buss and Newnes JJA agreeing). [↩]
  13.  Lam v The Queen [2014] WASCA 114, [54] (McLure P, Buss and Newnes JJA agreeing).  [↩]
  14.  Hili v The Queen; Jones v The Queen [2010] HCA 45,  [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩][↩]
  15.  Power v The Queen [1974] HCA 26,[10] (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen [1984] HCA 31, [3] (Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ). [↩]
  16. Power v The Queen [1974] HCA 26,[5]-[6] (Barwick CJ, Menzies, Stephen and Mason JJ); Hili v The Queen; Jones v The Queen [2010] HCA 45,  [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J). [↩]
  17.  See also Lodhi v The Queen [2007] NSWCCA 360,  110, [213]-[214] (Barr J). [↩]
  18.  See Commonwealth Criminal Code s 101.6. [↩]
  19.  ‘Sentencing order’ is defined to mean an order imposing or purporting to impose a sentence, or fixing a non-parole period or a recognizance release order: s 19AHA(8). [↩]

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