Hurt v The Queen

Case [2022] ACTCA 49


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Hurt v The Queen

Citation:

[2022] ACTCA 49

Hearing Date:

18 May 2022

DecisionDate:

30 September 2022

Before:

Loukas-Karlsson, Kennett and Rangiah JJ

Decision:

See [202]

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against sentence – statutory interpretation – where Commonwealth mandatory minimum sentencing regime applies – whether sentencing judge erred in applying the Bahar approach – ground not made out

APPEAL – CRIMINAL LAW – Appeal against sentence – child abuse material – whether sentencing judge erred in consideration of when ‘relevant conduct’ occurred for purposes of transitional regime – ground made out – offender resentenced

Legislation Cited:

Crimes Act 1914 (Cth) ss 4F, 16A, 16AAA, 16AAB, 16AAC

Criminal Code 1995 (Cth) ss 3BA, 3.1, 3.2, 4.1, 5.6, 474.6, 474.22, 474.22A
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) sch 6
Judiciary Act 1903 (Cth) s 68

Migration Act 1958 (Cth) ss 232A, 233C, 236B

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27

Allison (a pseudonym) v the Queen [2021] VSCA 308; 362 FLR 445
Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1
Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; 199 CLR 321
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Bahar v The Queen [2011] WASCA 249; 45 WAR 100
Bayu v The Queen [2013] HCATrans 144
Bin Radimin v The Queen [2013] NSWCCA 2230; 235 A Crim R 244
BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157; 162 FCR 234
Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; 180 FCR 11
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
DDP v Haidari [2013] VSCA 149; 230 A Crim R 134
Dui Kol v The Queen [2015] NSWCCA 150
Eldridge v Western Australia [2020] WASCA 66
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268
LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103; 402 ALR 297
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Magaming v The Queen [2013] HCA 40; 252 CLR 381
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Miller v The Queen [2016] HCA 30; 359 CLR 380
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021]…

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Hurt v The Queen [2022] ACTCA 49
Case
[2022] ACTCA 49
Decision Date

CaseChat Overview and Summary

Hurt appealed against a sentence imposed by a sentencing judge in the Supreme Court of Queensland. The appeal concerned the application of a Commonwealth mandatory minimum sentencing regime to offences involving child abuse material.

The appeal raised two primary legal issues. First, whether the sentencing judge erred in applying the approach established in *R v Bahar* to the mandatory minimum sentencing regime. Second, whether the sentencing judge erred in considering the timing of the "relevant conduct" for the purposes of a transitional regime applicable to the offences.

The Full Court of the Supreme Court of Queensland found that the sentencing judge did not err in applying the *Bahar* approach. However, the Court upheld the second ground of appeal, concluding that the sentencing judge had erred in their consideration of when the relevant conduct occurred for the purposes of the transitional regime. Consequently, the Court allowed the appeal, set aside the original sentence, and resentenced the offender.

Orders

Orders of the court

See [202]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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