GAGELER CJ, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
Matter No C7/2023
RAYMOND JAMES CHOI HURT APPELLANT
AND
THE KING RESPONDENT
Matter No C8/2023
RAYMOND JAMES CHOI HURT APPELLANT
AND
THE KING RESPONDENT
Matter No S44/2023
ENRICO ROBERT CHARLES DELZOTTO APPELLANT
AND
THE KING RESPONDENT
Hurt v The King Hurt v The King Delzotto v The King
[2024] HCA 8
Date of Hearing: 9 November 2023 Date of Judgment: 13 March 2024
C7/2023, C8/2023 & S44/2023
ORDER
In Matter Nos C7/2023 and C8/2023:
Appeal dismissed.
In Matter No S44/2023:
Appeal dismissed.
On appeal from the Supreme Court of the Australian Capital Territory and the Supreme Court of New South Wales
Representation
J White SC with K V Lee for the appellant in C7/2023 an C8/2023 (instructed by Legal Aid ACT)
R J Wilson SC with T D Anderson SC and N J Broadbent for the appellant in S44/2023 (instructed by Legal Aid NSW)
J T Gleeson SC and K M J Breckweg with C J Tran for the respondent in each matter (instructed by Commonwealth Director of Public Prosecutions)
North Australian Aboriginal Justice Agency appearing as amicus curiae, limited to its written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hurt v The King Hurt v The King Delzotto v The King
Criminal law – Sentencing – Appeal against sentence – Minimum sentences – Where s 16AAB of Crimes Act 1914 (Cth), inserted by Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("Amendment Act"), provided for minimum terms of imprisonment, subject to limited exceptions, for offences – Where offences included s 474.22A(1) of Criminal Code (Cth) ("Possessing or controlling child abuse material obtained or accessed using a carriage service") – Where elements of offence included, relevantly, "the person has possession or control of material" and "the person used a carriage service to obtain or access the material" – Where transitional provision in Amendment Act required "relevant conduct ... engaged in" to take place on or after commencement of amendments, including insertion of s 16AAB – Whether minimum sentence provides yardstick for calculation of appropriate penalty in addition to restricting sentencing power – Whether "relevant conduct" concerns only "conduct" element of offence or also "circumstance in which conduct ... occurs".
Words and phrases – "appropriate penalty", "appropriate term of imprisonment", "child sexual abuse offence", "conduct", "double function", "engaged in", "relevant conduct", "restriction on power", "sentencing", "sentencing discretion", "statutory minimum sentence", "yardstick".
Crimes Act 1914 (Cth), ss 16AAA, 16AAB, 16AAC. Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6, items 3, 9. Criminal Code (Cth), s 474.22A.
GAGELER CJ AND JAGOT J. Each appellant was convicted and sentenced for contravening s 474.22A of the Criminal Code (Cth) ("the Criminal Code"), titled "Possessing or controlling child abuse material obtained or accessed using a carriage service". Each contends that his sentence is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hurt v The King [2024] HCA 8
Case
[2024] HCA 8
Decision Date
CaseChat Overview and Summary
These appeals concerned the operation of the mandatory minimum sentence provision in section 16AAB of the *Crimes Act 1914* (Cth), which applies to offences including the possession of child abuse material under section 474.22A(1) of the *Criminal Code* (Cth). The appellants, Mr Hurt and others, argued that the minimum sentence provision should only operate as a restriction on a sentencing judge's power, preventing them from imposing a sentence below the minimum unless an exception applies. The respondent contended that the minimum sentence serves a "double function": it restricts sentencing power and also acts as a yardstick for calculating the appropriate penalty, effectively increasing the starting point for sentencing in less serious circumstances. A key issue was whether the transitional provision, requiring "relevant conduct" to have occurred on or after the commencement of the amendments, encompassed only the "conduct" element of an offence or also the "circumstance in which conduct occurs".
The High Court of Australia was required to determine whether the minimum sentence provision in s 16AAB of the *Crimes Act* operated solely as a restriction on sentencing discretion or also as a yardstick for determining the appropriate penalty. Furthermore, the Court had to consider whether the transitional provision, which stipulated that "relevant conduct ... engaged in" must have taken place on or after the commencement of the amendments, referred only to the "conduct" element of an offence or also to the circumstances in which that conduct occurred. This involved interpreting the meaning of "relevant conduct" in the context of offences like possessing child abuse material obtained or accessed using a carriage service.
The Court held that the appeals courts below had not erred in their approach to the mandatory minimum sentence provision. The majority view, which had been generally adopted by trial and intermediate appellate courts across Australia, was that the minimum term of imprisonment serves a double function. This means it not only restricts the sentencing power to the minimum period, subject to exceptions, but also acts as a yardstick, operating as the opposite of the maximum term of imprisonment, to guide the exercise of sentencing discretion. This approach means the minimum term generally increases the appropriate term of imprisonment for the offence in less serious circumstances. The Court found that the "relevant conduct" under the transitional provision encompassed both the conduct and the circumstances in which it occurred, meaning that if any element of the offence occurred after the commencement date, the minimum sentencing provisions would apply.
Consequently, the appeals were dismissed.
Orders
Orders of the court
In Matter Nos C7/2023 and C8/2023:
Appeal dismissed.
In Matter No S44/2023:
Appeal dismissed.
Background
Background to the litigation
The principal issue that arises on these appeals concerns the operation of the minimum sentence provision in s 16AAB. Two options have been recognised for that operation. The first option, supported by the respondent to the appeals, treats the minimum as serving a double function as a restriction on power and also as a yardstick for the calculation of the appropriate penalty. In its operation as a yardstick, the minimum sentence functions as the opposite of the maximum sentence. The second option, supported by the appellants, treats the minimum as operating only as a restriction on the power of the sentencing judge. This second option would mean that the typical process for determining a sentence would be largely unchanged, although if the sentencing judge determines that a sentence should be imposed that is lower than the minimum then, subject to any exceptions, the sentence must be increased to the minimum.The background to the appealsThe Hurt appeals Mr Hurt pleaded guilty to three offences committed in 2020 involving, respectively, transmitting,[41] accessing,[42] and possessing[43] child abuse material. His conviction for the possession offence, under s 474.22A(1), concerned three categories of child abuse material: (i) 357 photos and seven videos that were also the subject of the transmission offence (involving Mr Hurt transmitting that material to himself); (ii) a further 104 photos that were also the subject of the access offence (involving Mr Hurt accessing material stored on his phone); and (iii) an additional 25 photos and 48 videos that had come into Mr Hurt's possession after the commission of the transmission and access offences.[41]Criminal Code (Cth), s 474.22(1)(a)(ii).[42]Criminal Code (Cth), s 474.22(1)(a)(i).[43]Criminal Code (Cth), s 474.22A(1). Mr Hurt's conviction for the possession offence was based upon his possession of the child abuse material on 29 July 2020 when a search warrant was executed at his home. But although this act of possession of the child abuse material occurred after the commencement date, 23 June 2020, it was agreed at Mr Hurt's sentencing hearing in the Supreme Court that, in respect of the possession offence, only the group of 25 photos had been obtained or accessed by use of a carriage service after the commencement date. The primary sentencing judge (Mossop J) concluded that the use by Mr Hurt of a carriage service to obtain or access the relevant material involved "conduct" for the possession offence under s 474.22A(1) within the meaning of the transitional provision. His Honour treated the references to "conduct ... engaged in" in the transitional provision as meaning every act that must be done for the commission of the offence. Accordingly, his Honour only applied the minimum sentencing provisions in s 16AAB of the Crimes Act to that aspect of the possession offence concerning the 25 photographs accessed after the commencement date. Despite expressing considerable reservations about the double function approach, the primary sentencing judge adopted that approach to s 16AAB of the Crimes Act as a matter of precedent when sentencing Mr Hurt for the possession offence. But the primary sentencing judge only applied the yardstick function of s 16AAB to the 25 photos in the third category of the possession offence.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAGELER CJ
JAGOT J
EDELMAN, STEWARD AND GLEESON JJ
(dissent)
For these reasons, the appeal courts below did not err in their approach to the mandatory minimum sentence provision in s 16AAB of the Crimes Act.Conclusion The appeals must be dismissed. Introduction The principal issue in these appeals concerns the operation of s 16AAB of the Crimes Act 1914 (Cth), which provides for a minimum term of imprisonment, subject to limited exceptions, for offences including possession of child abuse material under s 474.22A(1) of the Criminal Code (Cth). On one approach, the minimum serves a double function: (i) restricting sentencing power to the minimum period of imprisonment, subject to the exceptions; and (ii) providing a yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion. As a yardstick that imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, the minimum term operates to increase the appropriate term of imprisonment generally for that offence. This double function approach has now been adopted generally by trial and intermediate appellate courts throughout Australia. The contrary approach treats the minimum as serving only the first function and therefore operating only as a restriction on power. This different approach, which frees the sentencing judge from the constraint of applying the minimum term as a yardstick, operates only to restrict sentencing power, to increase the term of imprisonment to the minimum term in any case in which the sentencing judge would otherwise have sentenced the offender to less than the minimum term. This alternative approach finds limited support in obiter dicta of some primary sentencing judges and in dissenting reasons in some appellate courts, including in the present appeals. A threshold issue that arises in each of the present appeals concerns whether s 16AAB is applicable to convictions in circumstances in which a transitional provision provides that the "relevant conduct ... engaged in" must take place on or after the commencement of amendments including the insertion of s 16AAB into the Crimes Act. This threshold issue requires consideration of whether the "relevant conduct" concerns only the "conduct" element of the offence within the meaning of s 4.1(1) of the Criminal Code (relevantly here, possession of child abuse material) or whether the "relevant conduct" also includes another element of the offence that is "a circumstance in which conduct ... occurs" within s 4.1(1) (here, using a carriage service to obtain or access the material). A majority of the Court of Appeal of the Supreme Court of the Australian Capital Territory (Kennett and Rangiah JJ) and a unanimous Court of Criminal Appeal of New South Wales (Adamson J; Beech-Jones CJ at CL and R A Hulme J agreeing) held that: (i) the relevant conduct was the possession of child abuse material and, for each conviction, the appellant had possession of the material after the commencement date for s 16AAB; and (ii) the approach that should be followed, which has now been adopted generally by trial and intermediate appellate courts across Australia, is that which treats the minimum term of imprisonment as serving the double function of generally restricting sentencing power as well as providing a yardstick, corresponding with the maximum term of imprisonment, for the exercise of the sentencing discretion.