By Paul Gregoire and Ugur Nedim
New South Wales District Court Judge Sophia Beckett was presiding over an appeal against the severity of the sentence imposed on Ellias Khouri by Parramatta Local Court on 12 December 2025, the full sentence being 18 months in prison comprising a 12 months non-parole period and six-month parole period, when a legal issue arose – which related to the fact Khouri was already on parole in respect of sentences for other offences.
The sentence being appealed related to criminal offences committed on five occasions, ending on 27 November 2025, which was the date the ‘new sentence’ imposed by Local Court Magistrate Stuart Devine began.
The question came about as Khouri was on parole for an ‘existing sentence’ of 9 years and 6 months, and the new sentence was totally subsumed by the parole period of the ongoing sentence.
The existing sentence was imposed by Campbelltown District Court on 19 June 2020. The non-parole period was 5 years and 8 months, which meant Khouri was eligible for parole on 30 April 2024. And this ongoing sentence formed part of “an unbroken sequence of expired terms of imprisonment”, beginning on 26 February 2015, which had been served partly concurrently and partly consecutively.
During the appeal, Khouri’s defence lawyers submitted that the provisions in subsection 58(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) prevented Judge Beckett from confirming Magistrate Devine’s sentence, as the new sentence was being served “consecutively” with the existing sentence and it would end 5 years after the existing one began, which the CSP Act forbids.
So, Judge Beckett asked the NSW Court of Criminal Appeal (NSWCCA) whether, in excluding certain provisions within it, section 58 of the CSP Act restricts the NSW Local Court from imposing a new sentence that is “wholly subsumed within the parole period of the existing sentence of imprisonment” when the new sentence would end, 5 years after the existing one commenced.
The sentencing law in question
Subsection 58(1) of the CSP Act provides that the NSW Local Court “may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began.”
If sentences are served consecutively, they are served one after the other. If terms of prison are served concurrently, they are served simultaneously or at the same time.
Section 58 of the CSP Act has a number of provisions within subsections that describe when this rule does not apply. These are subsections 58(3), 58(3A) and 58(3B). The conditions of these subsections did not relate to Khouri’s case and therefore, Judge Beckett’s query to the higher court excluded them from the question of law.
Subsection 58(4) defines an “existing sentence”, as “an unexpired sentence”, and it “includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively”. And this also includes sentences served “partly concurrently and partly consecutively” in an unbroken sequence with the existing sentence.
This subsection further explains that a sentence of imprisonment also includes an order referred to under subsection 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW), which lists the type of alternative sentences that a court can impose against a minor.
A sentence of imprisonment
NSW Chief Justice Andrew Bell explained in the 29 May 2026 published NSWCCA reasons in respect of the question of law, that Khouri’s argument depended on considering the expiry of the existing sentence as occurring at the end of the non-parole period, as opposed to the end of the head sentence, or both the non-parole and the parole period combined.
This understanding of the “existing sentence” is dependent upon subsection 55(4) of the CSP Act, which states that within section 55 “a sentence of imprisonment” is to be understood as the “non-parole period” of a sentence when a non-parole period has been set or, for a sentence with no non-parole period, then a sentence of imprisonment is to be understood as the entire term.
The exact same definition of a sentence of imprisonment also occurs in the CSP Act under subsections 56(5) and 57(3).
The Crown’s understanding was that while the new sentence would be wholly subsumed within the parole period of the existing sentence, and served concurrently, so subsection 58(1) of the CSP Act was not triggered. It further explained that this was because the new sentence was not being served consecutively, or neither partly consecutively and partly concurrently, as the subsection requires.
The prosecution further argued that the definition of a sentence of imprisonment found in subsection 55(4) did not relate to the current matter, and rather it relied on the definition provided in subsection 47(6) of the CSP Act, which defines a sentence of imprisonment, including an aggregate sentence, as starting on the beginning date and ending on the day on which it expires.
The contention between these parties led Judge Beckett to put the question of law to the NSWCCA for determination, and the NSW Chief Justice determined that the answer to the query is “no”.
Indeed, Justice Bell outlined that even if Khouri’s contention that “a sentence of imprisonment” was, as defined under subsection 55(4), solely the non-parole period, the answer would have remained no, because the new sentence imposed would not have been served consecutively, as it would not have commenced straight after the non-parole period expired, but more than 5 months later.
An alternative take
Even Khouri’s lawyer Scott Fraser SC was in agreeance with Crown. And to avoid the issue, he advanced an alternative position that involved whether section 58 would be engaged if a new sentence was imposed during the parole period of an existing sentence that had the effect of extending the non-parole period and thus being served consecutively or partly so.
However, how a new sentence was to extend an expired non-parole period was not directly set out, but his Honour said it appeared to be predicated upon subsection 55(2) of the CSP Act, which outlines that a court can direct that a new sentence of imprisonment be served consecutively, or partly so, with a sentence already being served or with a further sentence yet to commence.
The NSW Chief Justice further pointed out that subsection 55(2) doesn’t have the effect of extending the non-parole period of an existing sentence, whilst subsection 55(4) is predicated on non-parole being set by the original sentencing judge, and if a second sentencing judge imposes a new sentence, it doesn’t extend the prior non-parole period. So, this alternative argument was too invalid.
His Honour further insisted that even if a judicial officer had the power to direct that a new sentence be served straight after the non-parole period, the subsection 55(4) definition that considers a sentence of imprisonment being solely the non-parole period does not extend to section 58 of the CSP Act, as it only applies for the purposes of section 55.
The subsection 55(4) definition of a sentence just being the non-parole period, includes the clause “is taken to be a reference”, which means that it doesn’t usually apply outside of the section. His Honour further added that neither is the rendering raised by the Crown in subsection 47(6) to be taken as the ideal definition, as it is specifically purposed for setting the start date of a sentence.
“If a bespoke definition of ‘sentence of imprisonment’ had been intended for subsection 58, one would expect it to appear in that subsection,” his Honour explained. “Further, the definition of ‘existing sentence’ in subsection 58(4) as meaning ‘an unexpired sentence’ is quite inconsistent with” Khouri’s argument, as a sentence hasn’t expired if only the non-parole period has been served.
Justice Bell added that he agreed with the Crown on its point that “a sentence of imprisonment” in section 58 of the CSP Act, should align with the definition in subsection 3(1) of the CSP Act, which states it is “the penalty imposed for an offence”, and a series of additional definitions under subsection 3(2) clarify further that a sentence is not merely the non-parole period.
Avoiding absurd interpretations
The top judge explained that the effect of Khouri’s argument would be that a Local Court could not sentence a person serving parole to a new prison term, if it would expire more than 5 years after the existing sentence began.
Khouri, however, had further insisted that to avoid this outcome convicted people in this position could have their crimes dealt with on indictment in the NSW District Court and thus avoid the section 58 rule entirely.
But this would not solve the issue for people on parole in respect of a long sentence if they were facing court over summary offences, as these lesser crimes can’t be tried on indictment in the District Court by themselves. So, the outcome would be that these people would be immune to being sentenced over summary offences, as they’d expire more than 5 years after their start date.
Justice Bell added that some of these summary offences that immunity would exist for include obscene exposure, damaging or desecrating protected places, violent disorder and sale of knives to children, along with contravening an apprehended violence order, and a number of lesser offences under the Drug Misuse and Trafficking Act 1985 (NSW) and the Crimes Act 1900 (NSW).
His Honour added that in law, absurd, unreasonable and perverse interpretations must be avoided by the courts, and it should be understood that such interpretations and outcomes extending from such absurdities should not be the answers to questions of law that judicial officers arrive at.
The NSW Chief Justice ordered last month that “for all the above reasons, the question posed for this court’s consideration should be answered in the negative”, and his Honour added that “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”.
And NSW Chief Judge at Common Law Natalie Adams and NSWCCA Acting Justice Robert Hulme agreed with their colleague’s reasons.
