Hurt v The King

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.