Khouri v DPP (NSW)

BELL CJ: On 24 February 2026 and subsequently at Parramatta District Court, Beckett DCJ of the District Court of New South Wales presided over an appeal against severity of sentence under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) brought by Ellias Khouri (the Appellant) in respect of an aggregate sentence imposed by the Local Court of New South Wales sitting at Parramatta on 12 December 2025.

Local Court Magistrate Devine had sentenced the Appellant to an aggregate sentence of 18 months imprisonment to date from 27 November 2025 and expiring on 26 May 2027, with a 12-month non-parole period expiring on 26 November 2026. For reasons that will emerge, it is convenient to refer to this sentence as “the new sentence”. It was imposed in relation to offences committed by the Appellant on five separate occasions between 13 February 2025 and 27 November 2025 (the index offences).

At the time the index offences were committed, and the new sentence was imposed, the Appellant was serving the balance of parole for an existing sentence of 9 years and 6 months imprisonment (the existing sentence). The existing sentence was imposed by the District Court at Campbelltown on 19 June 2020. The existing sentence commenced on 31 August 2018 and expires on 29 February 2028. The non-parole period of the existing sentence was 5 years and 8 months, meaning that the Appellant was first eligible for parole on 30 April 2024. The new sentence imposed by the Local Court was wholly subsumed within the parole period of the existing sentence.

The existing sentence forms part of an unbroken sequence of expired terms of imprisonment served by the Appellant since 26 February 2015, all of which have been served partly concurrently and partly consecutively with the term of the preceding sentence. The Appellant’s parole under the existing sentence has, from time to time, been revoked including by reference to the commission of the index offences.

In the course of the hearing of the severity appeal, it was submitted on behalf of the Appellant that s 58(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) precluded Beckett DCJ from confirming the sentence imposed by the Local Court magistrate. This was on the basis that that (new) sentence was said to be a “sentence of imprisonment to be served consecutively … with an existing sentence of imprisonment” and thus engaged s 58(1) such that the new sentence would end more than five years after the existing sentence commenced.

Section 58 of the CSP Act is headed “Limitation on consecutive sentences imposed by Local Court”. Section 58(1) provides as follows:

Section 58(4) provides that:

The Appellant’s argument depended on treating the expiry of the existing sentence as occurring at the end of the non-parole period for that sentence as opposed to the end of the head sentence. This was said to be supported by the terms and operation of s 55(4) of the CSP Act which provides that:

Sections 56(5) and 57(3) of the CSP Act contain identical bespoke definitions confined to those respective sections.

The Crown’s contention was that, where the new sentence would be wholly concurrent with the existing sentence and subsumed within the parole period of the existing sentence, s 58(1) of the CSP Act was not engaged. This was because the new sentence would be neither consecutive nor partly consecutive and partly concurrent as s 58(1) required; it would be wholly concurrent.

The Crown disputed the applicability to s 58(1) of the CSP Act of the definitions of “sentence of imprisonment” in ss 55(4), 56(3) and 57(5). Rather, it pointed to and relied upon s 47(6) which provides that “[a] sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.”

On 9 April 2026, Beckett DCJ reserved her Honour’s decision and referred the following question of law for determination by this Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW):

For the reasons that follow, the answer to this question is “No” but it should be noted that, even if the Appellant’s contention that a “sentence of imprisonment” in s 58(1) of the CSP Act referred only to the non-parole period of the sentence were accepted, this argument would not avail him because the new sentence imposed by the Local Court would not have been “served consecutively” with the existing sentence within what was accepted to be the ordinary meaning of the word “consecutive”, the new sentence not having commenced immediately after the expiry of the non-parole period of his existing sentence. The new sentence commenced on 27 November 2025 whereas the non-parole period of the existing sentence expired on 30 April 2024: see [2]-[3] above. As such, s 58(1) imposed no relevant limit on the Court’s powers.

So much was accepted by Mr Fraser SC who appeared for the Appellant. He frankly acknowledged that, on that basis, the answer to the question posed by Beckett DCJ should be “No”, the same answer as proposed by the Crown.

To obviate that forensically undesirable outcome, Mr Fraser was constrained to advance an alternative argument on behalf of the Appellant to the effect that where a new sentence was imposed during the parole period of an existing sentence, that had the effect of extending the non-parole period of the existing sentence, thus rendering the new sentence “consecutive” or partly consecutive and partly concurrent with the existing sentence. In this way, s 58 was said to be engaged.

How that effect, namely an extension of the original and, ex hypothesi, expired non-parole period is brought about by the imposition of a new sentence was not at all clear. The argument appeared to be that this was in some way the effect of s 55(2) of the CSP Act which was identified by the Appellant (but disputed by the Crown) as the source of a sentencing court’s power to direct that a sentence be served “consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment”.

Irrespective of that dispute, s 55(2) of the CSP Act does not have the effect of extending the non-parole period of the existing sentence. Indeed, s 55(4), set out at [8] above, is predicated on that period having been set by the original sentencing judge, and as remaining the point of reference for the operation of s 55(2) of the CSP Act. The second sentencing judge, in exercising the power conferred by s 55(2), neither in form nor substance extends the non-parole period of the existing sentence. The Appellant’s alternative argument is thus unavailing.

Returning to the principal argument advanced by Mr Fraser, accepting, for the sake of argument, that s 55(2) of the CSP Act may be the source of the power to direct that a sentence may be served consecutively or partly consecutively and partly concurrently as he submitted, it does not follow that s 55(4) is “picked up” by s 58. The meaning of “sentence of imprisonment” in s 55(4) is supplied in a definition expressly and by necessary implication, solely for the purpose of that section. The familiar formula — “In this section, a reference to …” — is employed. That definition differs from the ordinary meaning of a “sentence of imprisonment” although, contrary to the Crown’s submission, we do not consider that s 47(6) (set out at [11] above) supplies a definition of the expression “sentence of imprisonment”; rather, it is directed to the reckoning of time for the purposes of stipulation of a sentence. The fact that s 55(4) uses the language “a reference to a sentence of imprisonment is taken to be a reference to …” (emphasis added), implies that the meaning in that section differs from the ordinary and natural meaning of the expression.

Section 58 of the CSP Act contains, in s 58(4), its own definition clause: see [7] above. If a bespoke definition of “sentence of imprisonment” had been intended for s 58, one would expect it to appear in that sub-section. Further, the definition of “existing sentence” in s 58(4) as meaning “an unexpired sentence” is quite inconsistent with the Appellant’s argument. A sentence in respect of which a non-parole period has been served has not expired.

A further non-textual reason why the bespoke definitions in ss 55, 56 and 57 of the CSP Act are unlikely to have been intended to carry through to s 58 is because that section is specifically directed to sentencing in the Local Court whereas ss 55-57 are of general application. The differentiation in drafting is significant because the same formulations in each of the sections were in the original form of the CSP Act.

I also accept the Crown’s submission that the reference to “sentence of imprisonment” in s 58(1) of the CSP Act is apt to be understood to mean the full term of the sentence of imprisonment. In this context, the Crown noted that:

The effect of the Appellant’s argument is that the Local Court could not sentence a person to an additional term of imprisonment if they were serving parole and had previously received a non-parole period of five years or more. In written submissions, the Appellant accepted that this would be a perverse outcome but suggested that in this and future cases when the subsequent offending called for a sentence of imprisonment, the problem could be obviated by the prosecution electing to have the charges the subject of the new sentence proceed on indictment in the District Court.

The difficulty with this submission is that, although it would provide an answer for indictable offences which can be summarily disposed of under Chapter 5 of the Criminal Procedure Act 1986 (NSW) (Table 1 and 2 offences), it would not provide an answer for summary offences which are required to be dealt with summarily and which must be dealt with by the Local Court: Criminal Procedure Act, s 7(1) and see the definition of “summary offence” in s 3. In such cases, the Director of Public Prosecutions cannot elect to bring charges summarily or by way of indictment in the District Court, which is not subject to the constraint imposed by s 58 of the CSP Act, applying as it does only to sentencing in the Local Court.

In the course of argument, Mr Fraser accepted that the Appellant’s construction would provide an effective immunity for an offender serving parole, and who had previously received a non-parole period of five years or more, in respect of summary offences committed during the balance of the parole period (albeit that the commission of such offences might result in the revocation of parole in respect of the existing sentence).

Take the example of a convicted murderer sentenced to a term of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months: see R v Thompson [2025] NSWCCA 133. The effective immunity from a custodial sentence for the commission of summary offences which would follow if the Appellant’s argument were to be accepted would last for some 7 years. Such summary offences could include:

As Isaacs and Rich JJ observed in Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees' Federation (1917) 24 CLR 85 at 99; [1917] HCA 64:

The perverse or absurd outcome of the Appellant’s proposed construction militates powerfully against its correctness.

For all the above reasons, the question posed for this Court’s consideration should be answered in the negative. This is, however, subject to the proviso that the “new sentence”, as in the present case, is not wholly or partly consecutive upon the non-parole period of the existing sentence.

N ADAMS CJ at CL: I agree with Bell CJ.

R A HULME AJ: I agree with Bell CJ.