Hurt v The King; Delzotto v The King

[2023] HCATrans 156

[2023] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Canberra  No C7 of 2023
  No C8 of 2023

B e t w e e n -

RAYMOND JAMES CHOI HURT

Appellant

and

THE KING

Respondent

Office of the Registry

Sydney  No S44 of 2023

B e t w e e n -

ENRICO ROBERT CHARLES DELZOTTO

Appellant

and

THE KING

Respondent

GAGELER CJ
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 2023, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR J. WHITE, SC:   May it please the Court, I appear with my learned friend MR K.V. LEE for the appellant, Hurt.  (instructed by Legal Aid ACT)

MR R.J. WILSON, SC:   May it please the Court, I appear with my learned friends, MR T.D. ANDERSON, SC and MR N.J. BROADBENT for the appellant, Delzotto.  (instructed by Legal Aid NSW)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MS K.M.J. BRECKWEG and MR C.J. TRAN for the respondent in each appeal.  (instructed by Commonwealth Director of Public Prosecutions)

GAGELER CJ:   I understand that the order of addresses is that we will hear from Mr White followed by Mr Wilson.  I take it, gentlemen, that you have coordinated your submissions so that there will be no repetition. 

MR WHITE:   Yes, your Honour.  I will come to that in due course. 

GAGELER CJ:   You will come to what?

MR WHITE:   I will explain our division of labour, so to speak.

GAGELER CJ:   Yes, thank you.

MR WHITE:   Your Honours, may I start with the transitional issue.  That is a fairly confined issue and we will not spend much time on it.  The issue arises in this context.  The legislation in question, the amendments of the Crimes Act, which we will call the amending Act, commenced on 23 June 2020.  Mr Hurt was charged on 29 July.  That is, after the commencement date, he possessed child abuse material and, incidentally,

that made him a repeat offender and subject to – if the amending Act applied – section 16AAB. The issue, however, is concerned with the transitional provisions in the commencement Act.

If I can start by taking your Honours to the provision under which he was charged, which was under the Criminal Code.  It was section 474.22A, to be found on page 81, behind tab 5 of the joint book of authorities, your Honours.  The issue, really, is whether what we say is a separate element, which is that part of paragraph (1)(c) – which refers to obtaining or accessing material – is that a separate element?  And is it, in terms of the transitional legislation, relevant conduct engaged in?  Because, although Mr Hurt had possessed the material after the commencement date, he had obtained and accessed it over a period – in other words, some of it before the commencement date, some of it after the commencement date.

In fact, most of it was obtained or accessed before the commencement date.  So, an argument arose as to whether the transitional provisions were engaged.  Perhaps, before I leave the section 474.22A, can I just direct your Honours in particular to paragraph (1)(c) which provides that:

the person used a carriage service to obtain or access the material –

If your Honours go to subsection (3), one sees that a differentiation is made between on the one hand, obtaining or accessing material and using a carriage service to obtain or access material.  We say that is significant in the way that subsection (1)(c) needs to be construed.  In other words, subsection (1)(c) contains two elements:  one is an element of conduct – that is, the element of conduct of obtaining or accessing material – and the other element is the use of the carriage service.

GAGELER CJ:   Also conduct.

MR WHITE:   It could be conduct or it could be a circumstance in which conduct occurred.  We do not really need to develop that aspect, your Honour, but it could indeed be conduct.  But at the very least, I think my learned friends would put it this way – Mr Gleeson would put it this way – it is a circumstance in which a conduct occurred.

Now, there are really two ways of putting this argument.  One is to put it as a very pure element analysis of the Criminal Code provision and identifying that obtaining or accessing material is a physical element of conduct.  The other approach was taken by the primary judge, Justice Mossop, here.  Justice Mossop said, it did not really matter if you could identify that as being an element of the offence, it still described conduct in terms of the transitional provisions.  So, can I take your Honours to the transitional provisions.

EDELMAN J:   Can you be in possession or control of material without having obtained or accessed it?

MR WHITE:   No.  That is the important point for our argument, your Honour.  This is a somewhat strange offence in that to commit this offence the person – that is, the defendant – has to have been the person that obtained or accessed the material.  So, it is not an offence under this provision to, for example, receive material from someone else who has obtained or accessed it, the defendant him‑ or herself has to have obtained or accessed the material and they have to have possessed it.

GLEESON J:   That is the Commonwealth hook for the offence.

MR WHITE:   Yes.  The Commonwealth hook is the use of the internet – the telecommunications hook – but it is not the – we say it is the using a carriage service that is the hook, not the obtaining or accessing material.  So, in other words, the Commonwealth hook is engaged by the fact that the person, in obtaining and accessing material, used the internet.  That is way we put our argument, your Honour.  So, if I just take your Honours to the application provision, which is at page 107 of the materials, your Honours will see item 3 – in particular, subparagraph (2):

Section 16AAB –

which is engaged in our case:

applies in relation to a conviction for a Commonwealth child sexual abuse offence where the relevant conduct was engaged in on or after the commencement of this Part –

Sorry, I apologise, your Honours, I have taken you to the wrong item.  Item 1 provides that this Part ‑ ‑ ‑

EDELMAN J:   Which tab are we in?

MR WHITE:   So, this is on tab 7, your Honour.  So, it is page 107 at the top.  It is in the joint book of authorities.  It should be in volume 1, your Honours.  So, sub‑item (1) says:

the amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part.

So, this is why it becomes important to ascertain what meets the description in section 474.22A of “conduct engaged in”.  So, if the conduct engaged in is both the obtaining and accessing material, and the possessing of the material – bearing in mind that the same person has to do both of those things for an offence to be committed under the section.  So, if that is the position, then the conduct, relevantly here, was not engaged in after the commencement of the Part because part of the conduct was engaged in – that is, part of the access took place before the commencement of the Part.

Mr Gleeson, I think, makes the quite proper concession that, if we are right in that argument, then that charge totally fails.  So, that is really where we are at.  It has to be said, that was not quite the way that it developed below.  The primary judge ‑ ‑ ‑

EDELMAN J:   The short point is whether using a carriage service or obtaining or accessing the material amounts to conduct.

MR WHITE:   Yes, because if either of those things amounts to conduct then some of the conduct, at least, took place before the commencement, and ‑ ‑ ‑

EDELMAN J:   And your point is obtaining or accessing is not conduct, it is just referring back to (a)?

MR WHITE:   No, our point is that obtaining or accessing is conduct.

EDELMAN J:   I see.

MR WHITE:   In other words, a person has to themselves both access the material and themselves then possess the material.

EDELMAN J:   But you do not rely upon using a carriage service, it is just that you just focus on obtaining or accessing.

MR WHITE:   We do.  The Chief Justice, with respect, makes a good point.  The use of a carriage service could itself be conduct, but generally such provisions are cast as Commonwealth connectors to provide the constitutional basis.

STEWARD J:   What do you say about the context of this provision following 474.22 where the nub of the effects in 474.22 is accessing, and it seems that the nub of the effects in 474.22A is possession or control?

MR WHITE:   It is, your Honour, but it is this strange offence, because it requires – it is only applicable to persons who themselves have accessed the material.  We stress that “who themselves have accessed the material”.

STEWARD J:   Why would we not read (b), (c), and (d) as all being directed to, if you like, a definition of what sort of material is the offensive material?  So that the nub of the offence is possessing the particular type of material, and then (b), (c), and (d) then tell you what type of material that is.  Is that a wrong way of reading the section, in your view?

MR WHITE:   It is, but also, with respect, it would not necessarily meet the argument about the commencement provision, or the application provision.

STEWARD J:   Because that seems to be the way the Victorian Court of Appeal looked at it in the Allison Case.

MR WHITE:   Yes.

STEWARD J:   You are going to come to Allison?

MR WHITE:   Yes, we will come to Allison.

STEWARD J:   All right.  Thank you.

MR WHITE:   Your Honours, can I – perhaps I should go to Allison now, because we do appreciate that Allison is the authority which was – particularly which was relied upon below to rule against us in relation to this matter.  But Allison was – it is at tab 41, your Honours, in the joint book of authorities.  Wait, that is not right.

EDELMAN J:   Tab 40.

MR WHITE:   Tab 40.  I apologise, your Honours.  So, Allison was a case which concerned an assertion of effectively abuse of process by duplicity, so the issue that was before Allison was not exactly the issue that is now before your Honours.  If I take your Honours to paragraph 41, your Honours see that the way in which the applicant submitted in Allison – paragraph 41 is on page 864.  The way in which the applicant submitted in Allison that the elements were is not the way that we are submitting to your Honours that the elements are.

The point is somewhat subtle, but we rely upon the breakdown in subsection (3) of the offence provision as pointing to subparagraph (1)(c) as describing two elements.  At least one of which – the obtaining or access – is an element of conduct.  That is the way that we put it.  That is not the way that it was put in Allison’s Case.

STEWARD J:   What do you say about paragraph 42, about the distinction?

MR WHITE:   That is against us, but it does not engage in the analysis which we are now putting to your Honours.

STEWARD J:   But why do you say that it is wrong?  They are saying that the access offence in 22 requires proof of intention to access, and then in contrast, in 22A, there is no obligation on the Crown to do that for access – and we have a presumption.

MR WHITE:   Yes.  Whether or not a fault element attaches to the physical element and what the physical element is, is irrelevant.

STEWARD J:   I see.  All right.

MR WHITE:   Because the transitional provision speaks not of what the Crown must prove, the transitional provision speaks of whether conduct was engaged in before or after a particular date.  It is true that in the instance of the provision that we are now addressing, it is true that the Crown effectively can rely on the presumption, but at the end of the day, the prosecution still has to establish that the person who was charged with the offence both obtained and accessed the material, and possessed the material.

EDELMAN J:   Does it?  Why does the Crown need to establish that, if (a) and (b) have already been established? 

MR WHITE:   It is an element of the offense, albeit it is subject to a presumption which makes the proof of the matter easier for the Crown.  So, the Crown, effectively, proves the matter by relying on the presumption but, of course, it would be possible for an accused person to say, I did not access the material; I did not access or obtain the material.  And if ‑ ‑ ‑

EDELMAN J:   Even though the accused person was in possession or control of the material.

MR WHITE:   Indeed.  If that were the case, effectively, there is an onus cast upon the accused person to do that, because of the operation of the presumption, but if that were the case, then the prosecution would fail.  So, it is an element that has to be established, albeit the way in which it is drafted assists the prosecution in establishing it, unless there is evidence to the contrary.  But we say that whether there is a fault element attaching or not is irrelevant.  The important aspect is whether there is a physical element that can be identified, and we say there is a physical element to be identified, which is the obtaining or accessing, and that is, we say, clearly an element of conduct.

STEWARD J:   But based on that argument, do you say that (b):

the material is in the form of data held in a computer –

that that state had to exist after commencement of the provision?

MR WHITE:   No, not necessarily.

STEWARD J:   That is not part of conduct?

MR WHITE:   No.

STEWARD J:   Okay.

JAGOT J:   Are you into taking account the definition of “access”?  It is incredibly broad.  All you have got to do is display it, copy, or move it ‑ ‑ ‑

MR WHITE:   Yes, but it is still quite ‑ ‑ ‑

JAGOT J:   ‑ ‑ ‑ you do not have to download it, in the sense of being the original downloader of material.

MR WHITE:   No, but, again, the extent to – with respect, that does not limit whether that is an element of conduct, it simply describes how easy it is to commit the conduct or engage in the conduct.

EDELMAN J:   Can you give me an example of how someone could have possession or control but not have obtained or accessed?

MR WHITE:   Yes:  a third person has given them the material which is subsequently discovered by the police.

JAGOT J:   This is the definition of “access”.  So, if you have opened – if you have clicked on a link, you have accessed; if you saved it, you have accessed.  You do not have to do very much.

MR WHITE:   Well, let me – I do not wish to interrupt your Honour.

JAGOT J:   No, no.  I am just saying, if you have not clicked on the link ‑ ‑ ‑

MR WHITE:   But it could be that somebody obtains a hard drive with the material on it.  In other words, they have done nothing to interconnect with the internet; the person who provides them with the material has had a connection with the internet, but they have not.  They are simply given a hard drive, which they are found in possession of.  They have not committed – that person has not committed an offence.

JAGOT J:   No, no, no, that is clear.  That is clear.

MR WHITE:   What I am saying to your Honour is, certainly, not very much conduct is required, but that which is required is still conduct.  That is the answer that I have for your Honour.

JAGOT J:   Right.

GAGELER CJ:   This may be obvious, but the word “conduct” as it appears in the transitional item that you have taken us to takes its meaning, does it, from the definition that appears in the Code?

MR WHITE:   We say it does.  Justice Mossop did not entirely agree with that proposition.  He said that it was not really necessary to engage in that kind of element analysis because what – the obtaining or accessing was conduct in – he did not use the expression – colloquial, but a normal sense as well as a Code sense, if that makes sense.

GAGELER CJ:   Is there anything in the transitional Act – I am sorry, is there anything in the 2020 Act that ties its language to the definition in the Code, other than the broad context?

MR WHITE:   No, I do not believe so that it would be – our argument is that, as your Honour first put to me, indeed it is conduct in terms of the Code.  That seems the inescapable conclusion by the scheme of the legislation and the operation of the Code.  We do not resile from that.  I was simply pointing out that Justice Mossop had a subtly different approach.  We would say that we succeed on either approach, but we prefer the purer analysis which links it back to the Code.  Your Honours, I think that is all I can say about Allison’s Case.

I do wish to take your Honours quickly to some explanatory material which has been served late, your Honours.  My understanding is that it has been added on at the end of the joint book of authorities.  It is the explanatory material to do with the legislation that introduced the section that we are now talking about.  Do your Honours have that explanatory material?  I have not been given a paginated version of that.  If your Honours will pardon me.

JAGOT J:   Is it called “Combatting Child Sexual Exploitation”?

MR WHITE:   Yes, it is, “Combatting Child Sexual Exploitation Amendment”, so it is the explanatory material that goes with that.

EDELMAN J:   Supplementary document 3.

MR WHITE:   Supplementary document 3, thank you, Justice Edelman.  I do not really want to get caught up on this because we really should not be construing the explanatory material as though it were a judgment of the High Court, and I do not want to be going into that vortex, but there are a couple of very useful references.  Perhaps, if I go straight to those – it is page 42 of this supplementary material.  These are the notes on the clauses.

The first thing to point out, if I take your Honours to paragraph 135, your Honours will notice that that sets out in relation to the relevant offence what the prosecution must prove.  It is not an element analysis.  It is simply, these are the matters that the prosecution must prove.  So, it comes back to the discussion we had earlier about the differences between elements on the one hand that have to be established and who bears the onus of proof in relation to those.  Can I take your Honours to paragraph 144.  The relevant paragraph ‑ ‑ ‑

STEWARD J:   Notably, one of the elements that the Crown does not have to make out is access.

MR WHITE:   Yes, that is so, your Honour.  If I take your Honours to paragraph 144, it acknowledges that:

Paragraph 474.22A(1)(c) will require that the child abuse material was obtained or accessed by the defendant by the use of a carriage service.

So, we say that is a recognition in the explanatory material that conduct is required by the defendant before they can be charged with the offence.  Then the next paragraph deals with subsection (3) and refers to:

that material was obtained or accessed by the defendant by the use of a carriage service.

If your Honours go over the page, it says:

Therefore, if the prosecution proves beyond reasonable doubt that the person had possession or control of child abuse material in the form of data held in a computer or contained in a data storage device, it is presumed that the person engaged in that conduct using a carriage service.

And “that conduct” is clearly a reference to the obtaining or accessing.  It is not a reference to possession; it is a reference to obtaining or accessing.  That impression is reinforced by the next paragraph, where reference is made to the issue of:

enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct.

I stress, your Honours, that relevant criminal conduct can only be the conduct of obtaining or accessing the material.  That is not the conduct of possessing the material because it has not necessarily showed that a carriage service was used in the possession of the material.  What it is necessary to show is that a carriage service was used in the obtaining or accessing of the material.

STEWARD J:   Is there anything in the extrinsic materials which would demonstrate a policy reason for why an offence such as this, where the offence is possession or control, should exclude possession or control of material that has been historically obtained using a carriage service?

MR WHITE:   No, I have not come across anything.  The transitional provision was simply the normal provision that on a particular day, henceforth the law operates.  So, I am not aware of any material which indicated that any thought had been given to this scenario that is now before your Honours.

STEWARD J:   I see.  Thank you.

GLEESON J:   Well, it is notable that the explanatory memorandum goes on to say that a presumption in this instance is appropriate, given that it is not an element that goes to the substance of the offence or to the person’s criminal culpability.  Rather, it is a jurisdictional element.

MR WHITE:   Yes, and that is slightly against us in – it does slightly favour my learned friend’s argument that this whole element is simply a Commonwealth connector element, but it is still – the explanatory memorandum certainly has indications about what is regarded as criminal conduct.  My learned friend is so bold as to submit that the only conduct that is criminalised by this provision is the conduct of possessing material, but, with respect, that is not right.

GLEESON J:   When does the offence occur?  When is the offence committed?

MR WHITE:   Well, that is an interesting proposition.  Possession is an offence which can take place between dates.  Generally, the – in other words, possession is what is, under the Code, called a state of affairs.  The Code had to invent that category of conduct to fit possession.  A state of affairs is something that can continue, so a person can continue to possess something.  Many criminal offences – but that is most criminal offences – are committed in an instant, but possession is not necessarily one of those offences; it is a state of affairs.  So, I think the answer to your Honour’s question is it is possible that it is committed while the person continues to possess the material.

Of course, what happened here is Mr Hurt accessed some material which he possessed and kept, and accessed some more material, and accessed some more material.  At some point, he came past the commencement date and he accessed some more material, and it was all of that material that he possessed.  So, that is the answer to your Honour’s question.  Possession is an unusual offence, in that regard.

GLEESON J:   Presumably the charge specifies a date.

MR WHITE:   It did.  It specified a date.  It was 29 July 2020, which was a date after the commencement.  But the argument, of course, on our part is, well, since it had to be shown that the accused had accessed or obtained the material, it was relevant to go into the evidence which dealt with that issue which showed that that obtaining or accessing had taken place on both sides.  Of course, the prosecution probably could have split the charge up if they wanted to.  They chose not to.  That is why we are here.

Your Honours, I think if there is nothing further, I might leave that issue.  It is a secondary issue compared to the main issue in this case, which is to do with whether the well‑known case of Bahar is a case, which is relevant to the construction of, in particular, section 16AAB of the Crimes Act.  I think both the appellants before your Honours are charged with offences under that section.

In fact, these two cases – this case from the ACT; Mr Wilson’s case from New South Wales – were the first cases that had gone to an appellate level testing this issue under the new legislation.  The Migration Act was amended in 2010 to introduce minimum penalties.  The regime was quite different to what the current regime under the Crimes Act is.  Just to give your Honours a quick history, soon after the Migration Act introduced those provisions, the cases of Pot and Bahar were both decided, and the fact is that Bahar has been followed by a number of appellate courts – and, we say, followed uncritically.  In any event, we will come to our criticism of that in due course.

The new penalties for a range of offences introduced by the amending Act are introduced into the general sentencing regime of the Crimes Act (Cth). Whereas the provisions considered by Bahar were specifically in Migration Act, these new provisions are put into the general sentencing provisions of the Crimes Act 1914, and in a way which suggests that if it were necessary to add additional offences which were caught by these provisions, it would be easy to do so by simply inserting those provisions into the schedule – if your Honours follow what I am saying.

In other words, this new approach to the amending Act seemed to be an approach to bring this concept of minimum penalties within the sentencing regime of the Crimes Act.  The issue, really, before your Honours is:  how does that work?  Does Bahar hold sway with the new legislation, or should the approach in Pot be followed?  What is the difference between those two approaches?

The approach in Pot can be summarised in this way – and let me use a concrete example in Mr Hurt’s case where the minimum penalty was four years, because he was a repeat offender.  Pot would say that in order to sentence Mr Hurt, the sentencing judge would have to look at all the usual sentencing factors – I will come to them in great detail – and come to an instinctive synthesis, but if that instinctive synthesis yielded a result that was below four years, then the sentencing judge would have to impose a sentence of at least four years.

Now, the reason that is so important is that that does not raise all of the sentences, it simply means that if a person is adjudged on the normal factors to have a sentence of less than four years, that sentence is put up to the four years.  Bahar takes a different attitude.  Bahar effectively says the minimum sentence becomes the new zero, in effect.  Perhaps it is a little bit dramatic way of putting it, but in effect the minimum sentence would be reserved for the least‑worst cases, and every sentence beyond that would have to build upon – in this instance, four years has been the minimum that could be given for an offence like this.

To illustrate that, in this case, Justice Mossop, who felt himself bound by Bahar even though he did not agree with it, imposed a sentence of, I think it was five years on Mr Hurt in the first instance, using the methodology of Bahar, even though for very similar offences which have been committed before the commencement date, of which Mr Hurt was also found guilty, the penalties had been much lower.  That is the way it operates in practice, it has a huge practical import on the way in which the sentencing regime operates.

STEWARD J:   Can I ask, using the Pot approach, do I take it that that would include a full application of section 16A of the Crimes Act?

MR WHITE:   Yes, and I will take your Honours to that.

STEWARD J: I suppose the question would then be, if that is so, then what is the utility of then going through the process under section 16AAC, which excludes all but two of the factors?

MR WHITE:   We will endeavour to explain the way in which those operate together.

STEWARD J:   If you are going to come to it later, do so.  Thank you.

MR WHITE:   We certainly will, your Honour, and those two factors being the factor of a plea of guilty and a factor of cooperation, classic sentencing factors, and they are dealt with in a particular way which we say favours the Pot approach.  We will come to that, but can I just say – in the Australian Capital Territory, Bahar was never considered before this present case, but in New South Wales Bahar was considered in a five‑member Bench, Karim, Court of Criminal Appeal, and that followed Bahar.  That really draws a line between my case and that of Mr Wilson.  In terms of the division of labour, I will leave Mr Wilson to develop any arguments about whether Bahar, whether it was rightly decided or not, should apply in the present situation.

The way the matter was dealt with in our case was, it was accepted on all sides that Bahar was relevant because Bahar in particular considered the minimum sentence provisions, which had the requirement to increase the sentence to at least a particular amount.  So, the matter was approached in the Australian Capital Territory on the basis that the question was, was Bahar wrongly decided?  Justice Mossop engaged in – if we might say so – the most comprehensive analysis of Bahar that has ever been engaged in, and we commend your Honours to it, but he found himself bound by following precedents of intermediate courts.  So, he very clearly did not agree with the Bahar approach, but he followed it.

In the Court of Appeal, the dissenting judge said that Bahar was plainly wrong.  The other judges, however, felt constrained to follow Bahar – although, I might just take your Honours to what they actually said about it, because it was quite revealing – so, this is in the joint core appeal book, and it is tab 7.  If I take your Honours to paragraph 156, which is to be found on page 117 of the book – the page is down the bottom on my copy.  So, tab 7, paragraph 156.  This is what the majority of the Court of Appeal said about Bahar:

There are, therefore, coherent reasons for concluding that ss 16AAA and 16AAB were intended to interact with the courts’ sentencing discretion in the manner identified in Bahar, even if the reasoning that case proved on further consideration to have been incorrect.  In any event, as explained above, we think that reasoning is correct; or, at least, it is not flawed to an extent that would justify this Court in departing from it.

A rather strange way, with respect, to put a proposition.  One wonders how flawed reasoning has to be before a court not ‑ ‑ ‑

GAGELER CJ:   There are principles that are applied and their Honours are averting to those principles that govern currently between intermediate appellate courts.

MR WHITE:   Yes.  Yes, and we have not troubled ourselves with that issue here, because ‑ ‑ ‑

GAGELER CJ:   No, it does not arise here.

MR WHITE:    ‑ ‑ ‑ of where we are.  Yes, your Honour.  So, in relation to the division of labour, that is the division of labour.  Mr Wilson will look more closely at Bahar in the context of how it applies in this case, but we have assumed that it does apply – and it has been assumed in the Australian Capital Territory that it did apply, but we say it is wrongly decided.

Your Honours, I think it is necessary to take your Honours on a quick excursion through the provisions in the Commonwealth Sentencing Act.  I will endeavour to do this as quickly as I can.  So, this is in volume 1 of the joint book of authorities, and the relevant parts of the Crimes Act 1914 are set out from tab 3.

GAGELER CJ:   We are working from loose parts – please just tell us the section numbers.

MR WHITE:   Yes, I will, thank you, your Honour.  The first section number is 16A, which is in the part of the Act dealing with general sentencing principles, and 16A is the fulcrum around which Commonwealth sentencing balances.  It mandates that:

a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

So, 16A(1) – this is the first subsection of 16A – it mandates the Court to look to the circumstances of the offence in determining severity.  That is an important point.  Now, in my quick excursus, I will just note that there is a note after subsection (1).  That note was inserted by the amending Act, and we will come back to it; we and the respondents part company in terms of the significance of that note.  Then, subsection (2) ‑ ‑ ‑

GLEESON J:   Well, is not that an indication of something that might affect what is appropriate in all the circumstances of the offence?

MR WHITE: We say not, but we will develop that argument. That was certainly the position, I think, that the respondent takes. We say, in summary, our argument is that simply warns the Court that, having engaged in instinctive synthesis in accordance with section 16A, there are minimum penalties ahead for some offences. And so, on the Pot approach, that means a sentencing court engages in instinctive synthesis, and then, if necessary, increases the sentence to at least the minimum that is prescribed.

GAGELER CJ:   When you say “at least”, what would cause it to go over in those circumstances?

MR WHITE:   Well, it would not – well, nothing.  So, what cause a person to get a sentence of more than, say, four years, in this case would be the result of the instinctive synthesis.  So, if a person got a sentence of more than four years – let us say five years – as a result of the instinctive synthesis, under the Pot approach, that will be the sentence, whereas the Bahar approach would say no, because, effectively, four years is the floor, and therefore four is the new zero, effectively.  So that is the difference.  We say, following the Pot approach, the only matters that need to be adjusted upwards are those matters which fall under the ‑ ‑ ‑

GAGELER CJ:   So, you would say, if you have co‑offenders and you apply what you described as an instinctive synthesis approach and you say, well, one is significantly more serious than the other, three years for that person, offender, two years for the other; your approach would say, well, they both get four?

MR WHITE:   Yes, yes.  Now, that leads on to an issue of compression, which we will come to.  One of the – in Karim, in particular, President Allsop, as his Honour then was, came up with an additional reason to support the reasoning in Bahar and it was essentially around what your Honour has just put me about the inconvenience of compression at the lower end, for the example that your Honour the Chief Justice just put.

EDELMAN J:   Well, it was the flipside of that though, was it not?  It was the example of somebody who had been given four years, and somebody else who had been increased to four years, even though there was not parity between the two offences.

MR WHITE:   Yes, parity – we will come back to that word parity because our argument, in summary, on parity is parity is only ever used to justify a decrease in sentences, not an increase in sentences.  In other words, the concept of parity is not a concept that one uses to increase a sentence, it is a concept that one uses to decrease a sentence.

Now, the context in which we put that will be the first thing I come to after this excursus through the legislation, and that is the principle of legality.  So, we rely very much on the principle of legality if your Honours like treading as lightly as possible in the interpretation of these provisions, and that ‑ ‑ ‑

GLEESON J: I do not understand what you say about parity there. I mean, parity is something that – an idea that is expressed, for example, is it not, through section 16A, through the application of that provision?

MR WHITE:   Well, parity is really an argument used by particular individuals who complain that they have been unfairly treated in the system.  Now, there is another concept – and perhaps I should have picked Justice Edelman up on this – that the words used by President Allsop were unjust rather than parity.  I think your Honour, with respect, might have been reaching towards that concept of unjustness rather than parity.

We take a particular issue with parity because it has this operation which traditionally is about individualised justice.  Unequal justice or unjustness might be a different situation, and we will come to that in the context of the principle of legality.  But that is the best I can say at this stage about how we explain those terms, your Honours.  Now, your Honours, if we go to the matters in 16A(2), they are just the normal sentencing factors.  The normal way that sentencing judges operate in the Commonwealth sentencing sphere is by instinctive synthesis, so they ‑ ‑ ‑

GAGELER CJ:   We understand.

MR WHITE:   Yes, you understand that.  And they reach a particular result.  Unlike some of the State and Territory jurisdictions, in relation to these issues of cooperation and a plea of guilty, there is no necessity to engage in percentage discounts or the identification of percentage discounts.  That is required under some State sentencing legislation, not under Commonwealth.  So, it is all covered by instinctive synthesis.

Your Honours will note that those two matters in particular highlighted by the Chief Justice are in subsection (2).  And the sentencing judge would have to take those into account considering the matters under subsection (2), along with all the other matters that are relevant.  I just note that at this stage.  I think I can crystallize what I think are the essential differences between us and the respondent on this.

GAGELER CJ:   Are you still taking us through the legislation?

MR WHITE:   Perhaps I will continue to do that ‑ ‑ ‑ 

GAGELER CJ:   It might be best to do that, and then we will come back to your arguments.

MR WHITE: Yes, I will, thank you, your Honour. Can I take your Honours next to the new provisions starting at section 16AAA, and that provides that:

if a person is convicted of an offence . . . the court must impose a sentence of imprisonment of at least the period specified –

The two things to note there in particular are the use of the word “convicted” – so that section only applies if a person is convicted.  It may be a person could be dealt with by way of non‑conviction order, but if they are convicted, there must be imposed a sentence of imprisonment of at least a particular period.

Now, 16AAA deals with serious offences, generally of the same kind that section 16AAB deals with, but more serious. Most of those offences had their maximum penalties increased with the amending Act. That is in contradistinction to section 16AAB, which specifically relates to second or subsequent offences. In relation to most of those offences that are set out in the schedule, most of those offences did not have their maximum penalties increased. Of course, we come on to argue the normal way of increasing penalties is to increase the maximum penalty, but that did not happen in relation to most of the matters in this section – section 16AAB – in particular, the relevant item here, which is item 24A, the offence against the particular subsection.

Again, your Honours will note the form of section 16AAB(2) is similar to that of 16AAA. It requires conviction, and there is reference to “at least”. We come on, then, to section 16AAC, which relates to a possible way of reducing what is otherwise the minimum penalty if the court is taking into account a plea of guilty and/or is taking into account cooperation. We will come back to the significance of the word “is” there, but we say that that points to a court engaging in the normal instinctive synthesis under section 16A(2), and considering those matters in its consideration of the 16A(2) factors. If it is doing that, then there is a mechanism under 16AAC for there to be a reduction of penalty.

STEWARD J:   Just on your Pot analysis, the judge applies 16A(2) and all the factors, looks at them all, and then gets to 16AAC, redoes two of them and excludes the others, or what?

MR WHITE: Not necessarily, your Honour. This is where it becomes significant for our argument. We say that the only situation in which section 16AAC operates is the situation where the penalty has been increased to the “at least” position.

STEWARD J:   So, it is engaged whence you have done the top‑up.

MR WHITE: Yes, because the court is taking into account those two factors. If we just dwell on that for a moment, if your Honours go to subsection (3) of section 16AAC, you will see there a reference which appears to be a reference to a percentage but it, in fact, is not a reference to percentage. It is a way of calculating the maximum discount that may be given, and it is not actually expressed in terms of percentage because it is a percentage of a period specified. In the case of Mr Hurt, it is 25 per cent of four years, which is one year. The maximum discount available for a plea of guilty for Mr Hurt would be one year.

But – this is important to our argument – if Mr Hurt has received a sentence via instinctive synthesis of over four years there is no call to put that into effect.  We will come back to this, but the explanatory memorandum indicates that that is how that section is meant to operate.  We say that supports our Pot argument, really, because it is only relevant in situations where the sentence is increased, but in doing so the judge has taken into account, effectively, those factors.  We will come back to that, but that is just to flag that at this stage.

On my quick excursus, bearing in mind I do not want to take up too much time on this, section 17A is a restriction on imposing sentences. The usual sort of restriction one finds effectively urging courts to prioritise other than a sentence of imprisonment. We would have to concede that there is a restriction that the amending Act does impose some kind of restriction on that. I will not take your Honours to it in particular, but the issue of non‑parole periods and recognizance release orders is dealt with in sections 19AB and AC. Essentially, matters for more than three years under Commonwealth sentencing regime, a non‑parole period is required; under three years, a recognizance release order is required.

I do need to take your Honours to section 19B, which is the discharge of offenders without proceeding to conviction.  Your Honours will recall that both 16AAA and 16AAB are both predicated on conviction being entered, but if conviction is not entered, then a person can be discharged either by having the case dismissed or the person can be discharged by being put on a good behaviour order without a conviction being recorded.  That position is preserved in relation to these offences.  So, notwithstanding that there is a minimum term of four years, if it had been appropriate, Mr Hurt could have had no conviction recorded in this case.

This is a point of difference between the provisions considered in this case and the provisions considered in Bahar, because in Bahar the legislation specifically excluded resort to non‑conviction outcomes.  Also, in Bahar, the legislation had a mandatory minimum non‑parole period, and so on.  So, there is some point of difference between the two legislative regimes, but I think I will leave that to Mt Wilson.

The only other section – I do not need to take your Honours to specifically.  Under section 20(1)(b), it is possible to suspend a sentence of imprisonment either immediately or a term having been served, but in relation to child sex offences, exceptional circumstances have to be shown.  That last refinement was as part of this package of legislation.  So, we come to the Bahar issue squarely.

Now, it is telling in this case that the parties seem to agree that this is a question of statutory construction.  The parties also have resort to extrinsic material.  So, we say the principle of legality is not of limited assistance in this case at all.  It is very much engaged.  What we have put to your Honours is this is not a case like some of the cases that my learned friend relies upon, such as ASIC v DB Management and Lee v NSW Crime Commission where the Parliament had very squarely dealt with the extinguishment of rights – so squarely that there was no room for the operation of principle of legality.  We say this is not such a case.  There has not been that kind of wholesale extinguishment of rights that one saw in cases like Lee.  Instead, the principle of legality is given room to operate.

EDELMAN J:   When you are imprisoning someone, you are taking away their rights.  It is the loss of the right to liberty.

MR WHITE:   It is, but that does not of itself exclude the principle of legality in this sense, your Honour.  If there is a competing interpretation – which, clearly, there is in this case; one interpretation, treading more lightly than another – then we say, in that instance, the principle of legality is available.

EDELMAN J:   Is there any authority that is ever applied to principle of legality in the interpretation of sentencing provisions?  If your submission was right, we would expect to see it in almost every instance of ambiguity in a sentencing provision.

MR WHITE:   NAAJA, which is the case that we do refer to, and perhaps I should take your Honours to that.  It is somewhat in that context.  So, that is the case, tab 35 of the appeal book.  In that case – I will just turn it up ‑ ‑ ‑

EDELMAN J:   But that was not about the extent of imprisonment.  That was about whether or not a person gets imprisoned or taken to custody in the first place.

MR WHITE: Yes. And case there is not – our argument is not put forward to ameliorate the consideration of matters under section 16A – in other words, the instinctive synthesis – our reliance on the principle of legality has to do with which of the competing constructions treads the lightest, so to speak, on individual liberty. When we develop our argument, we have to face up to the fact that there are possibilities of compression at the bottom end if the Pot regime is followed because – to use the example that the Chief Justice gave earlier – there will be compression in that situation.  But, we say, that that is a price that is worth paying to justify the principle of legality, or to put into effect the principle of legality.

We point to the fact that there are ways of ameliorating this compression. So, two people who end up – to use the example the Chief Justice gave – at the same point, can be dealt with differently under this legislation because of the minimum terms that may be applicable. So, they could be given different non‑parole periods. It may be that the section 16AAC factors are available in one case and not in another, so the differentiation that took place would be a differentiation based on the minimum term or what they actually served, or how they served their sentence, rather than the differentiation on the head sentence. But it would still be a differentiation and it would still be a way of justifying the construction that we urge your Honours for.

Your Honours, I do not think I need to, so to speak, lecture your Honours on the principle of legality ‑ ‑ ‑

GAGELER CJ:   Mr White, your estimate was an hour and a half.  We have taken an hour.  We are up to paragraph 3 of your outline.

MR WHITE:   Yes, I will move on, your Honours.  I think the principle of legality is suffused through the way in which the courts below deal with the matter, so I do not need to say anything more.

Now, I do want to say this is really the nub of the argument and the nub of the issue between the parties. That is, we say that the requirement under section 16AAB of a minimum term has no effect on the task of severity. It seems that the respondent has some difficulty, we respectfully submit, in identifying exactly what effect section 16AAB has on the instinctive synthesis. They talk of the instinctive synthesis being informed by those provisions. They do not seem to go so far as to suggest that section 16A is impliedly repealed, it is just that in some way, which is very difficult to pin down, the consideration of the 16A factors are somehow attenuated by the existence of this minimum term.

JAGOT J:   How is it different to the maximum?  Why is that so?  It is not such a mystery when there is a maximum.  Why is it such a mystery and incomprehensible when it is a minimum?

MR WHITE:   Well, the argument that your Honour puts effectively raises this issue of whether the minimum term here is to be viewed in the same way as a maximum penalty, and we say it is not.

JAGOT J:   Well, I understand that question, but if sentencing courts are perfectly capable of understanding what a maximum means and how it informs the instinctive synthesis, and that is just for traditional and orthodox, why is it such a mystery –unnamed waters – to do exactly the same thing but with a minimum?  That is the only bit I do not get.

MR WHITE:   The difficulty is when there is a hard ceiling the instinctive synthesis cannot go beyond the hard ceiling.

JAGOT J:   But it is more than that.  Courts are informed by the maximum.  They do use it as an indicator of the legislature’s view of the worst category of case.  What is wrong with using a minimum as an indicator – leaving aside if no conviction is recorded, which requires an independent exercise under 19B, but if a conviction is recorded, is it not just the same intellectual exercise but the other way?

MR WHITE:   In practical terms, it is difficult, because there is this at‑large suggestion that the sentencing judge considers all these matters in 16A, that has to produce not an instinctive synthesis but a particular result.  In other words, it is a difference between the process that is suggested by my friend that these sections inform the instinctive synthesis ‑ ‑ ‑

JAGOT J:   I do not get why that is different from the maximum, because you may look at 16A – say you have got a maximum here of 15 years, you do an instinctive synthesis disregarding the 15 years – which you cannot do –  and you might come up with, this is appalling, 30 years.  You cannot do that, but nobody does the exercise that way.  They take into account the 15 years, they perform the instinctive synthesis recognising that is the worst category of case.  I just do not get why it is different, that you do not recognise that the least‑worst category of case is four years, and then just perform exactly the same exercise.

MR WHITE:   The answer really lies in the difference between the hard ceiling of the maximum, and whatever this is – it is not a hard floor, because the person can be brought below the floor in so many different ways ‑ ‑ ‑

JAGOT J:   Only in one way.

MR WHITE:   No, your Honour, they can be brought below the floor by getting a non‑conviction outcome ‑ ‑ ‑

JAGOT J:   No.  That is not being brought below the floor.  You are in a totally different section, this does not get engaged at all unless you are already going to be convicted, and then if you are convicted you can be brought below the floor only in the ways specified in the provision.

MR WHITE:   But the important factor – the point here is that in order to get to a section 19B outcome, a non‑conviction outcome, the court has to have engaged in the instinctive synthesis.

JAGOT J:   It has to have looked at all the 16A factors yes, that is dictated by 16A(1), in the words “or the order”, which would include a 19B order.

MR WHITE:   Yes.  Indeed.  Your Honour has picked up that point.  But that point means that it is necessary to engage in that process untrammelled, so to speak, by any other considerations of minimum penalty, because clearly, if the sentencing judge is reaching a conclusion ‑ ‑ ‑

JAGOT J:   If convicted.

MR WHITE:   ‑ ‑ ‑ that non‑conviction is appropriate ‑ ‑ ‑

JAGOT J:   But the judge knows that the minimum and maximum are only relevant if convicted, so they do look at all the 16A factors.  They know, if convicted, there is a minimum and a maximum, but they still look at 16A, they look at 19B, and they reach a decision not to convict.  That is it.  There is no conviction, 19B operates.  But once they are in conviction territory, are they not just equivalent provisions operating in exactly the same way?

MR WHITE:   Well, we are really thrown back on our argument that really, given that there are competing constructions, which I think ‑ ‑ ‑

JAGOT J:   I understand that.

MR WHITE:   I think that is the answer that I have for your Honour.

EDELMAN J:   It is ultimately a pretty short point though, is it not?  On the one hand, is the minimum just the opposite of a maximum?  Or, on the other hand, is the process by which Parliament contemplated to be the same sort of process but with some complicated adjustment, according to a new minimum to be imposed at the end?

MR WHITE:   Yes, effectively, it does come down to a simple choice between those two, yes.

EDELMAN J:   And that is just a question of parliamentary intention.

MR WHITE:   Well, yes, viewed through the lens of the principle of legality, yes.  So, your Honours, I will not – your Honours will understand the arguments, the contextual arguments that I make.  We particularly rely on the words “at least” – Justice Mossop called those words “a minimalist command”.  So, in contradistinction to what your Honours has put to me, Justice Mossop says, that is no more than recognising that, having completed the instinctive synthesis, if you reach a figure that is below the minimum, you have to put it up to at least the minimum.  So, that is the way – and I do not to develop that argument, as I ‑ ‑ ‑

GAGELER CJ:   But, in an answer to an earlier question from me, you said that there was no reason why you would go beyond the minimum, that there would be no justification to take it beyond the minimum.

MR WHITE:   Yes.

GAGELER CJ:   So, the words “at least” do not help you; in fact, they count against you.

MR WHITE:   With respect, no, your Honour.  They cover simply the situation where you are below the four years, so they do not operate – they do not operate, that is the way we put the argument.

GAGELER CJ:   I see.

MR WHITE:   So, the “at least” – it is an unusual term to not be defined in the sentencing statute.  It comes from the Migration Act provisions, but that is – we rely on what Justice Mossop said about that.  Your Honours will be aware that Justice Adams in the Dui Kol Case – which I will not bother taking your Honours to in detail – but Justice Adams also engaged in a similar critique on that point.  I am trying to speed up a little bit in my submissions, your Honours.

Just in relation to the note, the note is another contextual matter that rely on, and we have already really touched on that, but the respondent seems to be submitting that the note somehow directs the operation of 16A to give precedence to the commands of section 16AA, et cetera.  We say that the note simply advises the sentencing judge that, having completed the task of instinctive synthesis, they will need to, in some instances, have regard to minimum sentences.  So, we do not see that the note has the effect that my learned friends submit for it.

Your Honours, another contextual issue which I think I have dealt with is this:  the contextual issue of whether the Court is taking into account the matters of plea of guilty and so on.  I rely on my written submissions in relation to that, but I have addressed that already.  Your Honours, we do make that submission that there is in this package of legislation no discernible purpose of increasing sentences generally.  Normally, the way of indicating the seriousness of an offence is by raising the maximum penalty, and the amending Act did increase maximum penalties in some instances, as I said, but not for most of the offences subject to 16AAB and in particular not for this offence here.

When one looks at the extrinsic material to the extent that it is useful, the emphasis seems to be on a desire to avoid non‑custodial sentences and ensure a minimum period for the head sentence.  The Minister refers – and I will not take the time of the Court by taking your Honours to it, but it is set out in Justice Mossop’s judgement, but the Minister refers to the vice of the present situation prior to the Act as being:

insufficient time in custody to undergo even treatment programs or receive any significant rehabilitation –

So, there seems to be another policy underpinning this legislation which is not a wholesale increase in penalties.  An increase in penalties in some instances is part of it, but generally it seems to be more that there should be some time served in custody and there should be time for treatment options to be properly had regard to whilst the offender is in custody.

In that regard, the amending Act did insert other provisions which required the Court to have regard to rehabilitation and treatment options, and they also required exceptional circumstances should proceed a suspending sentence – a release on suspended sentence under section 20B.  Those provisions are not clearly directed to increasing sentences generally, they are, we say, quite consistent with a different purpose.

I think I have dealt with the issue of a yardstick.  One often hears such terms bandied about.  At the end of the day, they are metaphors for what a court must do.  Whatever you call the minimum penalty in this case, to call it a “yardstick” in the same way as a maximum penalty is a yardstick simply assumes the argument.  We say that is what Bahar simply did.

Your Honours, I am coming to the end of my submissions.  I need to deal with, in particular, the additional reason that President Allsop – as his Honour then was – gave in Karim about unequal justice, because I feel I have not totally dealt with that.  I have already ‑ ‑ ‑

EDELMAN J:   Your submission is really that the equality of justice principle that underlies parity is only one that moves in one direction.

MR WHITE:   Yes.

EDELMAN J:   In other words, it is only one that moves to reduce sentences, but it could never be one that moves to increase sentences.

MR WHITE:   Yes.  And parity being the key to that.

EDELMAN J:   Parity does not necessarily mean reduction in sentences in every occasion.  That is just the way that the common law has historically applied it.

MR WHITE:   In practical terms, it is a question of who complained.  Parity is really a mechanism of complaint for an individual.  Really, what is suggested here is not a parity issue at all, but when his Honour the President speaks of unequal justice, he is not really talking about unequal justice suffered by other individuals, he is talking about some societal issue of unequal justice.  That is fair enough, but one then still has to have regard to the principle of legality.  As Justice Adams says in his critique of the President’s reason, you are simply multiplying the injustice if you allow this interpretation to be an instrument of further injustice.

EDELMAN J:   But that is your point.  It is not really about a principle of legality issue, your point is really that you cannot use notions of parity to require one person to be treated unfairly in order to achieve equality with someone else.

MR WHITE:   Yes.  Just coming back to a point that was raised in relation to compression – just to round out the discussion – compression is put forward as a reason to avoid the Pot approach, but we say compression – which we have acknowledged does occur – is a consequence of the legal scheme, it is a consequence of having maximum penalties as well.

This Court in Kilic dealt with a very serious case of – I think it was harming by fire or something like that, a terrible case – and it is quite clear that one can always imagine more horrendous cases, but that does not preclude the imposition of the maximum.  So, that means that there will at the upper end, in some instances, be compression under a maximum penalty.  Compression of itself is not a reason to avoid the construction that we contend for.  It is simply a consequence of the statutory regime.  We do

say again, there are ways of ameliorating pressure in this instance by the use of the factors that I have already referred to.

Now, your Honours, I will leave Mr Wilson to deal more comprehensively with Bahar, but we do note that there was very short shrift given to the issue of the principle of legality in Bahar.  There was no attempt to address the statutory language in that case and there was a conclusory statement – and I take that from Justice Mossop below here – a conclusory statement about the equivalence between maximum and minimum penalties and Justice Adams is very similar in that regard.

The cases which followed Bahar did so uncritically.  I have indicated some in my written submissions.  It was simply accepted that the Bahar characterisation was correct.  The first case, I think, that an appellate court followed it was in Queensland, of Karabi and it was not even argued – the contrary was not even argued in Karabi and so the Bahar line rapidly congealed into a line that was followed by intermediate courts.

GAGELER CJ:   Your simplest argument, as I understand it, is that when you read the transitional provision against the background of section 4(1) of the Code, that tells you what physical elements may be in an offence, the only physical element that amounts to conduct is (a), and you say that (c) is within that terminology – circumstance, not conduct.  It is kind of – end of story, is it not?

MS BRECKWEG:   That is exactly right.  Exactly.  It is the circumstance in which you came into ‑ ‑ ‑

STEWARD J:   That is what the Victorian Court of Appeal said.

MS BRECKWEG:   In Allison, absolutely.

GAGELER CJ:   Whether it is relevant conduct or conduct, you just do not have conduct when you look at (c)?

MS BRECKWEG:   That, in a nutshell, is exactly right, and I rely on Allison at 42, which I think your Honour Chief Justice Gageler just referred to before, and in addition, that was confirmed by both Delzotto and Hurt, the same point that you are talking about, but in Hurt they used it in terms of one being in the present tense, as in possessing, and the other in past, as in accessed by.  The only other point I would make in support of the argument as well is that possession has a fault element of intention ‑ ‑ ‑

EDELMAN J:   Just before you move on to that, that point that you are making, it really treats use of a carriage service to obtain or access as a single compound phrase – obtaining and accessing are just the verbs to describe what is going on with the carriage service, which is all the circumstance.

MS BRECKWEG:   That is right.

EDELMAN J:   If you are wrong about that, and the appellants are right that there really are two things going on, there is a circumstance which is the carriage service, and conduct, which is obtain or access.  Whether that is relevant conduct might depend on whether it adds anything to possession or control.  So, what I was asking you is, is it possible to be in possession of child abuse material, but not having obtained or accessed it?  In the appellants’ example, does it make sense with the intention requirements within possession to possess or obtain the hard drive, but not to have accessed or obtained material?

MS BRECKWEG:   In order to prove the offence you have to prove all of the elements, so you have to prove that the person was in possession, and I as understand the offence, the material in possession, the material was obtained or accessed.  You would have to prove that the person obtained or accessed the material.

GLEESON J:   Subsection (3) is predicated on the basis that a defendant can prove to the contrary.

MS BRECKWEG:   The presumption?  Yes.

STEWARD J:   I was going to ask about that.  Given that both individuals pleaded guilty, why has the presumption not been engaged in favour of the Crown here?  It was not something you had to prove, and there was no evidence or attempt to deny it.  Instead, there were guilty pleas.  I am just trying to understand why we are troubled here.

MS BRECKWEG:   That is a very good question.  It was the case that there was a plea of guilty and that this was an issue that came up subsequently based on the transitional provisions in the matter of Hurt.

STEWARD J:   I see.  All right.

MS BRECKWEG:   That is, effectively, it was always our case that the offence was made out, and it was possession that was pleaded to.

STEWARD J:   Yes, I see.

EDELMAN J:   Perhaps I could have one more go.  Can you give me an example, then, of when, under (3)(a) a person would be able to prove to the contrary if 1(a), (b), and (d) had been proved and a carriage service had been used?

MS BRECKWEG:   Could you just repeat that again, once more?  If when you could prove – I am sorry, your Honour, would you mind repeating that?

EDELMAN J:   I am just still struggling with the idea, if you have the intention to possess child abuse material, and that is all proved, and it is also proved that a carriage service has been used to obtain that material, how would you ever be able to show that you have not obtained or accessed material that you are possessing with an intention to possess?

MS BRECKWEG:   I am not sure that you could.

EDELMAN J:   If that is right, it might suggest that “obtain” or “access” are not doing any work with (c) at all.

MS BRECKWEG:   Exactly.

EDELMAN J:   But you do have (3)(a).

MS BRECKWEG:   Yes, exactly.  We do not need to, because there is no presumption with the strict liabilities.

GLEESON J:   Can I just test that?  This may reveal a lack of understanding about possessing this kind of material in this kind of context, but would it not be possible to possess child abuse material in the form of data, held in a computer that I own that was obtained by my evil sister, using a carriage service, in which case – if I could prove that she was the person who used the carriage service to access the material, then ‑ ‑ ‑

MS BRECKWEG:   If you reversed the presumption ‑ ‑ ‑

GLEESON J:   Yes.

MS BRECKWEG:    ‑ ‑ ‑ then you would not be guilty unless you subsequently learn or there was evidence that you knew that there was child pornography on there, but, no, I think you would not be guilty unless we could show that.  If your evil sister did it, then – she is not a very nice sister.

Those are the submissions.  Thank you.

GAGELER CJ:   Thank you, Ms Breckweg.  So, Mr White.

MR WHITE:   Yes, thank you, your Honour.  I will take up the evil sister – the simple answer is, you would not be guilty.  Why would you not be guilty?  Because the only person who can be guilty of an offence under section 474.22A is a person who both obtained and accessed the material and possessed it.  Justice Edelman raises an issue about, does this add anything?  The answer is, in a sense, it is an ingredient of the offence.

EDELMAN J:   But if possession requires an intention – which it does – then, at the moment, I cannot see how you can ever obtain or access something without an intention to possess.

MR WHITE:   But that is the point.  If the evil sister does the obtaining or accessing, then ‑ ‑ ‑

EDELMAN J:   Then there is no possession.

MR WHITE:   ‑ ‑ ‑ there is possession.  It is just that the offence is not made out because the offence has two relevant ingredients of conduct.  One is the obtain/access, the other is the possession.  They are both ‑ ‑ ‑

EDELMAN J:   So, if you are in possession of the material knowing, intentionally being in possession, but somebody else has obtained it, then you have not accessed it? 

MR WHITE:   Yes, you are not caught.  That is right, because not only ‑ ‑ ‑

EDELMAN J:   How can you intend to possess something that you have not accessed?

MR WHITE:   No, no, your Honour.  The access refers to the Commonwealth connector, so the access is via the internet, or via by a telecommunication service.  So, to posit two examples, a person who, having obtained material not by the internet, gives it to person B; person B does not, under any circumstance, commit an offence.  If, in the second circumstance, person A obtains material via the internet and gives it to person B, person B does not commit an offence – or does not commit this offence.  They almost certainly commit a State or Territory offence of possession of child abuse material, but they do not commit this offence.  The reason they do not commit the offence is the Commonwealth needs a Commonwealth connector to legislate in this area.

EDELMAN J:   It does tend to mean, then, that (c) is a compound phrase, not two different elements.

MR WHITE:   Well, subsection (c) says differently.  And subsection (c) makes it quite clear that you can avoid the consequences of a conviction by proving that you did not obtain or access it.

GAGELER CJ:   You say (c) is conduct, even though it is conduct that occurred in the past.

MR WHITE:   Yes.  Perhaps, just to – this will be my last example.  If you obtained or accessed it, but not via the internet, or not via a telecommunication service, again, you would not be guilty of an offence under this provision.

STEWARD J:   What do you want to say about the presumption?

MR WHITE:   Your Honour did raise that issue.  We say that is irrelevant in terms of the transitional provision.  The transitional provision requires one to have engaged in relevant conduct, and if you have not engaged in the relevant conduct – and we say the relevant conduct includes the conduct of obtaining – it does not matter that there is no fault element attaching to that, it simply does not allow the transitional provision to apply.

What happened in my client’s case – so, my client is the client who accessed material over the period of the cut‑off date, so to speak – the commencement date.  The Crown did charge him with an offence based on possession after the cut‑off date.  However, it was raised before the sentencing judge as an issue in terms of how his Honour could deal with the volume of material and what material related to the offending.  As is quite common ‑ ‑ ‑

STEWARD J:   In circumstances where there was pleas of guilt and no evidence led to contradict the presumption, why could not the Crown rely upon the presumption for the purposes of the transitional rule?

MR WHITE:   Because it was relevant on sentence as to when the ‑ ‑ ‑

STEWARD J:   I understand that, but I am just ‑ ‑ ‑

MR WHITE:   And also, what the material was.  There was evidence, as there often is in these cases – quite detailed evidence – that the sort of material, the seriousness of the material – it does range in degrees of seriousness – and when it was obtained.  All of that evidence was before the sentencing judge, and that is the circumstance in which the issue is engaged before the sentencing judge.

STEWARD J:   Perhaps your point is that the dates of access – which I assume were part of the charge for the other offence – is that how you knew about the dates of access?

MR WHITE:   There were other offences which did relate to who accessed some of that material.

STEWARD J:   In your client’s case, how do we know the dates of access?  Was it agreed between the parties?

MR WHITE:   Yes, yes.

STEWARD J:   Is that your answer to the presumption?

MR WHITE:   The presumption, in that sense, did not arise because my client was pleading guilty.  The client was not attempting to void the suggestion that he was guilty, what he was attempting to avoid was the suggestion that he was caught by the new provisions, which escalated the potential penalty considerably.  As I said, I think before, your Honours, on the other matters, I think my client got sentences in the realm of 15 months or something like that.  In relation to this matter, he got a penalty – because he got caught, swept up in the new provisions – of something like five years.  That was the context in which it appeared.

Your Honours, I do want to just raise one issue to do with the section 16AAC – and I do not want to go over old ground that I have already gone over. We do say that our interpretation of the way that section 16AAC works is more consistent with Pot being the appropriate way in which to view the operation of the sections.  We say it for this reason:  it makes no sense for the Court to take into account in its instinctive synthesis the questions of guilt and cooperation, and come up with a conclusion from that, and then have to somehow attenuate that in relation to decisions about the way that those two factors are dealt with in the possible reductions.  We say the way that Pot works is that that section is only enlivened if the person has had their sentence increased to four years, and that is why the reduction that is available to the person is calculated on that four-year period. 

Justice Edelman asked a question along the lines of, is this similar to State and Territory provisions which require an evaluation of the degree of cooperation and degree of guilt, as I understand what your Honour was putting. The simple answer is, no. As we said in our primary submissions, the section 16AAC does not actually provide a percentage, it provides an actual figure. The figure in this case is one‑quarter of four years. That is all that you can get. So, it is only sensible to apply that to four years. It is not sensible to apply that to any figure above four years. The other argument, as I have already put, if synthesis had taken you above four years, you would not need to engage with 16AAC.

GAGELER CJ:   So, what is the purpose of section 16AAC?

MR WHITE:   It is to ameliorate the situation where a person is on the four years.  I did want to take your Honours to the explanatory memorandum.  I will not get your Honours to turn it up, but I will just read it out to you, your Honours.  So, this is the explanatory memorandum for the relevant amending legislation.  At paragraph 213, it says:

The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the tables in section 6AAA and subsection 16AAB(2).

So, in other words, that is the way it works.  It is only available when you are on the minimum – in this case, four years, but the minimum could be whatever it is in the table for other offences – and it is to that that the calculation applies.

It does come back to a question asked by Justice Gleeson of my friend in terms of – I think your Honour was asking, if the sentencing judge has already considered the issue of guilt and cooperation in their instinctive synthesis, are they to consider it again?  The answer is, only in this situation, and they only get to consider it because the court is taking into

account the factors under section 16(2)(a).  That is why we put such emphasis on that contextual matter.

If there are no other matters, thank you, your Honours.

GAGELER CJ:   Yes, thank you, Mr White.  Mr Wilson, do you have something in reply?

MR WILSON:   If I could just have a moment?  Probably not.

GAGELER CJ:   You can certainly have a moment.

MR WILSON:   Just very briefly, in relation to the extrinsic material – I will not take your Honours through it – I commend your Honours to look at it very carefully – both the second reading speeches and the explanatory memorandum because, firstly, the reference to the case of Magaming does provide some support, of course, obviously on its face, for the respondent’s position.  But when one looks at what the actual provisions were that were introduced, they just do not fit.

GAGELER CJ:   Say that again, please?

MR WILSON:   When one looks at the actual provision that was imposed, it was not a minimum penalty.  For the reasons that I have already explained, it just does not fit.  It was not the same sort of scheme.  It was a very different legislative scheme.  In particular – and just before that reference to Magaming, the Attorney said, on the previous page – joint appeal book 1762:

Judicial discretion over the non‑parole period is retained, allowing the courts to take a range of sentencing considerations into account in determining a sentence of appropriate severity in all the circumstances of the case.

which seems to imply, in my submission – and there is something in the explanatory memorandum which is very similar, which has been dealt with in the written submissions – that those factors are not being taken into account, necessarily, in imposing the head sentence.

They have retained full judicial discretion in the non‑parole period to enable all of the circumstances of the case to be taken into account in a proper way – which tells against, effectively, a Bahar approach and in favour of a Pot approach, and somewhat ameliorates the unequal justice aspect of the Pot approach as it applies to this particular legislation because there can be – there is no lower limit at all on a non‑parole period.  There can be a non‑parole at the rising of the court.

Those are my submissions.  Thank you, your Honours.

GAGELER CJ:   Thank you, Mr Wilson.  The Court will reserve its decision in this matter and will adjourn until 10.00 am on Tuesday, 14 November.

AT 3.49 PM THE MATTER WAS ADJOURNED