Hurt v The Queen
[2022] ACTCA 49
•30 September 2022
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 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 R v Selu [2012] QCA 345 Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 Woodside Energy Ltd v Zaghloul [2015] FCAFC 135; 234 FCR 198 |
Texts Cited: | Bills Digest (Digest No 53 of 2019–20, 19 November 2019) |
Parties: | ACTCA 48 of 2021 Raymond James Choi Hurt (Appellant) The Queen (Respondent) ACTCA 50 of 2021 The Queen (Appellant) Raymond James Choi Hurt (Respondent) |
Representation: | Counsel J White SC ( Appellant/Cross Respondent) S McNaughton SC with B Narula ( Respondent/Cross Appellant) |
| Solicitors Legal Aid ACT ( Appellant/Cross Respondent) Commonwealth Director of Public Prosecutions ( Respondent/Cross Appellant) | |
File Numbers: | ACTCA 48 of 2021 ACTCA 50 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 16 September 2021 Case Title: R v Hurt (No 2) Citation: [2021] ACTSC 241 |
LOUKAS-KARLSSON J:
In 2011 in Bahar v The Queen [2011] WASCA 249; 45 WAR 100 (Bahar) the Court of Appeal of the Supreme Court of Western Australia made an assumption. That assumption was that a mandatory minimum penalty as contained in s 233C of the Migration Act 1958 (Cth) (Migration Act) was equivalent to a maximum penalty. That assumption, in my view, constitutes a false equivalence. For the following reasons I have come to the view that the assumption of equivalence between a mandatory minimum penalty and a maximum penalty is plainly wrong.
Introduction
I have had the benefit of reading, in draft form, the reasons for judgment of Kennett and Rangiah JJ (the majority judgment). These reasons assume a familiarity with the majority judgment and do not unnecessarily replicate the relevant background facts.
As outlined in the majority judgment, there are, in effect, four issues before the Court:
(a)How a sentencing judge should approach the mandatory minimum provisions contained in ss 16AAA, 16AAB and 16AAC of the Crimes Act 1914 (Cth) (Crimes Act) (what their Honours refer to as Offender issue 1);
(b)Whether the mandatory minimum provision applied to the possession of child abuse material charge (what their Honours refer to as Crown issue 1);
(c)Whether the sentence imposed by the sentencing judge was manifestly inadequate; and
(d)Whether the sentence imposed by the sentencing judge was manifestly excessive.
Kennett and Rangiah JJ found that the sentencing judge’s approach to the mandatory minimum provisions was correct, but that the sentencing judge erred in his application of the mandatory minimum provision by assessing the objective seriousness of the offence only by reference to the child abuse material downloaded after 23 June 2020.
In the result, there was no need for the majority to separately consider issues (c) and (d).
I agree with their Honours in relation to issue (b) for the reasons expressed in the majority judgment. As such, I agree that it is unnecessary to consider issues (c) and (d) and that the offender must be resentenced. For the reasons that follow, however, I do not agree with their Honours in relation to issue (a). In the result, I would impose a different sentence as part of the resentencing exercise.
Approach to mandatory minimum provisions
As outlined in the majority judgment there are two approaches that have been taken by Australian courts in relation to Commonwealth mandatory minimum sentencing provisions.
Under the first approach, a sentencing judge determines the appropriate sentence that would have been imposed but for the existence of the mandatory minimum. If the sentence is less than the minimum, the sentencing judge then imposes the statutory minimum penalty. This is the approach that was discussed in R v Pot (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011) (Pot) and will be referred to as the Pot approach.
The second approach is to treat the mandatory minimum as the lower bound of a sentencing “yardstick” and take this into account in the sentencing exercise. That is, the minimum penalty is reserved only for the lowest category of offending. This is the approach that was adopted by the Court of Appeal of the Supreme Court of Western Australia in Bahar in relation to s 233C of the Migration Act 1958 (Cth). I pause to emphasise that under the Bahar approach a sentencing judge will assess whether the case is in the “lowest category” of offending by taking into account all relevant sentencing considerations.
The sentencing judge in this case outlined significant concerns that he had with the Bahar approach but found that as a single judge he was bound by that approach. I will turn to consider the sentencing judge’s concerns in further detail later in these reasons. The central issue on this ground of appeal is whether the approach adopted in Bahar was “plainly wrong” such that this Court should depart from it and the cases that have followed it.
Both Pot and Bahar considered the mandatory minimum penalty contained (at that time) in s 233C of the Migration Act. Section 233C relevantly provided:
233CMandatory minimum penalties for certain offences
(1)This section applies if a person is convicted of an offence under section 233A … unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
(2)The court must impose a sentence of imprisonment of at least:
(a)8 years, if the conviction is for a repeat offence; or
(b)5 years, in any other case.
…
Relevantly for this appeal, ss 16AAB and 16AAC of the Crimes Act provide:
16AABSecond or subsequent offence
(1)This section applies in respect of a person if:
(a)the person is convicted of a commonwealth child sexual abuse offence (a current offence); and
(b)the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.
(2)Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty Item Column 1
Current offence
Column 2
Sentence of imprisonment
24 offence against subsection 474.22(1) of the Criminal Code 4 years 24A offence against subsection 474.22A(1) of the Criminal Code 4 years
16AACExclusions and reductions—minimum penalties
…
Reduction of minimum penalty
(2)A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or sub-s 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a)the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b)the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3)If a court may reduce a sentence, the court may reduce the sentence as follows:
(a)if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b)if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c)if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
(emphasis added)
There was no submission advanced by the appellant or respondent that the relevant mandatory minimum provisions in this case are distinguishable from those considered in Bahar. I agree. The relevant aspect of the mandatory minimum provisions is identical, namely that: “the court must impose a sentence of imprisonment of at least …”. There is no relevant distinction between ss 16AAB and 16AAC of the Crimes Act and s 233C of the Migration Act.
Accordingly, as the provisions are not distinguishable, and the question is one of the interpretation of Commonwealth legislation, the appellant correctly accepts that this Court is bound to follow the approach in Bahar unless persuaded that it is “plainly wrong”: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135].
For the reasons that follow, in my view, the approach in Bahar is plainly wrong and, applying the relevant principles of statutory construction, the approach in Pot should be applied to the federal mandatory minimum provision in this case.
Before outlining that analysis, it is convenient to summarise the reasoning in Bahar and the cases that have followed it.
How has the Bahar approach been interpreted and applied by subsequent intermediate appellate courts?
The Bahar approach can, relevantly, be found in the judgment of McLure P in Bahar (with whom Martin CJ and Mazza J agreed), at [53]–[56]:
The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.
Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.
The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise “category” of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the “bottom line”) is not dictated by the presence or absence of one or more mitigating factors.
Thirdly, as this court has previously recognised, a mandatory minimum term of imprisonment can create complications for reductions in sentence for mitigatory factors. For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty: Teakle v Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v Western Australia [2010] WASCA 33:
[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.
However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability [42]–[43].
Queensland
The Bahar approach was subsequently followed by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; 220 A Crim R 338 (Karabi), R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 (Nitu), R v Latif [2012] QCA 278 and R v Selu [2012] QCA 345 (Selu). Importantly, I note that no submissions were advanced in any of these cases that Bahar was plainly wrong. The only reference to whether Bahar is plainly wrong can be found in Karabi, in which Muir JA stated that such no such submission was advanced by the appellant. His Honour, nevertheless, went on to state that the Bahar approach was correct (at [35]).
In Nitu, the Court conveniently summarised its approach at [37]:
To summarise the position, R v Karabi adopted the principles expressed in Bahar v The Queen that “the statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied”, [Bahar v The Queen [2011] WASCA 249 at [54]] “the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending”, [Bahar v The Queen [2011] WASCA 249 at [55]] and “whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender.” [Bahar v The Queen [2011] WASCA 249 at [55]]
(footnotes included)
Victoria
The Victorian Court of Appeal followed the Bahar approach in DDP v Haidari [2013] VSCA 149; 230 A Crim R 134 at [43]. No submission was advanced to the Court that the approach in Bahar was plainly wrong.
New South Wales
In Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268 (Karim), the NSW Court of Criminal Appeal dealt with several appeals involving a challenge to s 233C of the Migration Act. The Court also dealt with a challenge to the correctness of the Bahar approach, and, relevantly, a submission was advanced on behalf of the appellant that Bahar was plainly wrong, justifying departure from it by the Court. Allsop P (as his Honour then was) set out his reasoning at [44] to [45]. Those paragraphs are extracted in full in Kennett and Rangiah JJ’s reasons. It is, however, worth noting the independent reason that led Allsop P (as his Honour then was) to prefer the Bahar approach at [45]:
There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], “[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect” (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.
The NSW Court of Criminal Appeal subsequently followed Bahar in Bin Radimin v The Queen [2013] NSWCCA 2230; 235 A Crim R 244 (Bin Radimin) and Dui Kol v The Queen [2015] NSWCCA 150 (Dui Kol).
In the 2015 NSW Court of Criminal Appeal decision of Dui Kol, Adams J (with whom Hoeben CJ at CL and McCallum J, as her Honour then was, agreed) found that NSW was bound by the Bahar approach due to the decision of the Court in Karim. However, Adams J (with McCallum J agreeing, Hoeben CJ expressly not agreeing with this aspect of the judgment) disagreed with the “correctness” of the approach while finding that the Court was bound to apply it: [11]. I will discuss this later in my reasons.
Earlier this year, the NSW Court of Appeal delivered judgment in R v Delzotto [2022] NSWCCA 117 (Delzotto). This was the first time that an intermediate appellate court delivered judgment on the question of applying the Bahar approach to ss 16AAA, 16AAB and 16AAC of the Crimes Act. There was no argument advanced that Bahar was plainly wrong, as the appeal proceeded on the basis that the relevant provisions in the Migration Act and the Crimes Act were distinguishable. This was rejected.
Western Australia
In R v Abbas [2019] WASCA 64; 277 A Crim R 105, the Court of Appeal of the Supreme Court of Western Australia applied Bahar and summarised the relevant principles at [66] as follows:
In Bahar, McLure P explained the correct approach to the mandatory minimum penalty. Her Honour concluded, relevantly, that:
(a)The mandatory minimum penalty, like the maximum penalty, is a legislative direction as to the seriousness of the offence [46].
(b)The observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v R , that ‘careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick’, are, on the face of it, equally applicable to mandatory minimum penalties [48]–[49].
(c)The general sentencing principles in the Crimes Act, as supplemented by common law principles, are framed at a level of generality for application within the boundaries of power established by the maximum penalty and the mandatory minimum penalty [54].
(d)The maximum penalty and the mandatory minimum penalty dictate the seriousness of the offence, for the purposes of s 16A of the Crimes Act, and they are the ceiling and floor respectively within which the sentencing judge has a discretion to which the general sentencing principles are to be applied [54].
(e)The question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending in question falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum penalty is appropriate [58].
(emphasis added)
What is meant by “plainly wrong”?
It is well accepted that a court of appeal should not depart from a decision (or series of decisions) of other intermediate appellate courts merely because it prefers a different construction or interpretation. Rather, decisions of other intermediate appellate courts must be followed unless the later court is persuaded that the decision is “plainly wrong”.
Recently, Allsop CJ outlined what is meant by the phrase “plainly wrong” in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 (FAK19) at [2]–[13]. As his Honour noted at [3] the phrase does not have a “fixed content of meaning”. His Honour also indicated at [7], [9] that:
The departure requires necessity for conviction as to error. As Chief Justice Gleeson said when Chief Justice of New South Wales in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100:
… it is generally accepted that before it is appropriate for an appellate court to overrule one of its earlier decisions it must entertain a strong conviction as to the incorrectness of the earlier decision.…
It is a mistake to fix upon one expression of some fixed content within the words “plainly wrong”. It does not just mean “obviously” wrong: Gett v Tabet 254 ALR at 565–566 [294]. In, if I may respectfully say, a most helpful discussion in Transurban 95 FCR at 560–561 the Court recognised the need to balance the risk of perpetuation of error in too rigid a stance in reconsideration of earlier decisions and the importance of the stable operation of the doctrine of precedent and the predictability of the law. The Court in Transurban referred at 560–561 to what had been said in Nguyen, Marlborough Gold and Chamberlain, amongst other cases. After referring to the concluding expression of principle by Dawson, Toohey and McHugh JJ in Nguyen as to the inappropriateness of intermediate appeal courts considering themselves strictly bound by their earlier decisions and the risk of too rigid an adherence to precedent thereby which may perpetuate error, the Court said at 95 FCR 561 [31]:
Beyond this principle, we do not think it possible, or even desirable, to formulate exhaustive criteria upon which this Court should act when asked to reconsider an earlier decision, for so much will depend upon the nature of the controversy, the strength of the arguments, and the particular circumstances attendant upon the case.
… (emphasis added)
It is worth setting out the statement of Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1990) 169 CLR 245 referred to by Allsop CJ. Their Honours stated at 270:
… rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.
In FAK19, the Full Federal Court outlined some relevant factors to consider in approaching the question of plainly wrong if the matter is one of statutory construction. These considerations include that “the error is clear or patent” (Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 (Treloar) at [28]), rather than “merely a difference of view as to meaning” (Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at [29]), and that it has caused “unintended and perhaps irrational consequences” (Treloar at [28]).
As Kennett and Rangiah JJ have noted, the meaning of “plainly wrong” varies depending on the factors present in a particular case. Such factors include, but are not limited to, consideration of “whether the earlier decision rested on principle carefully worked out and whether the earlier decision had been otherwise acted upon”: FAK19 at [10] (Allsop CJ) referring to Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [292]–[301].
In FAK19 the Full Federal Court was considering submissions advanced by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that a series of earlier Full Federal Court decisions were plainly wrong.
In the present case, Kennett and Rangiah JJ outlined that:
We would need to be very strongly convinced that the Bahar reasoning was wrong (not merely that the Pot approach was preferable) in order to be persuaded that Bahar should now be departed from, because of the length of time it has stood as authority and the extent to which it has been followed.
(emphasis added)
Their Honours continued, stating that the reasoning in Bahar “has been an established part of the Australian legal landscape for more than a decade, has been applied in several jurisdictions, and has withstood at least one previous direct challenge”. That factor, in their Honours’ view, was relevant to their consideration of whether the principles in Bahar are plainly wrong.
I do not agree that this is a case where the underlying principles have formed an established part of the Australian legal landscape for the following reasons.
While it is true that Bahar was decided over a decade ago, the principles in Bahar have rarely been considered in detail by intermediate courts of appeal. Unlike the Migration Act cases considered by the Full Federal Court in FAK19, there are comparatively fewer opportunities for intermediate appellate courts to consider federal sentencing principles. There are fewer still where a court of appeal has considered in detail mandatory minimum penalties.
A consideration of whether earlier decisions have rested on “principle carefully worked out” and “had been otherwise acted upon” necessarily involves the question of whether reasoning has been considered, and the extent of this consideration, by later courts. In my view, this is the proper interpretation of Allsop CJ’s remarks in FAK19 at [10] (referred to above at [30]).
This judgment is the second time that an intermediate court of appeal has considered the meaning of ss 16AAB and 16AAC of the Crimes Act. As stated earlier, the NSW Court of Criminal Appeal was the first intermediate court of appeal to deliver a decision considering the applicability of the Bahar approach to these sections, in Delzotto.
Another relevant factor is also the number of times a decision has been relied upon. For example, in FAK19 the Court was considering a challenge to several previous Full Court decisions which had been relied upon in hundreds of lower court cases.
That approach is consistent with the reasoning of the Full Federal Court in LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103; 402 ALR 297 in which the Court held that the decision of a majority of a previous Full Court in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; 180 FCR 11 (Brookfield) was plainly wrong.
This is in contrast to a consideration of only the length of time that a decision has stood. This factor alone says little about the quality of the reasons underlying the principles upon which a decision is founded.
In Woodside Energy Ltd v Zaghloul [2015] FCAFC 135; 234 FCR 198, in finding that a previous decision was not plainly wrong, the Court provided a “further important consideration” in that case at [42]:
It is apparent from the authorities provided to us that the Supreme Court of Western Australia is called upon not infrequently to construe the Compensation Act and has considerable experience and expertise in that regard. This Court would not lightly conclude that a decision of the Court of Appeal of the Supreme Court of Western Australia with such experience and expertise in relation to the construction of the Compensation Act, was “plainly wrong”.
In contrast, in Bahar, the Supreme Court of Western Australia was the first appellate court to interpret the relevant mandatory minimum sentencing provisions in the Migration Act. It is also worth noting that those provisions were the first federally legislated mandatory minimum sentencing provisions. As such, the above consideration does not apply. Indeed, this factor tends against an interpretation of plainly wrong which is unduly restrictive on this Court.
A review of the cases that have followed or adopted the reasoning in Bahar supports the view that it is not an established part of the Australian legal landscape. This is the case for the following reasons.
First, only one appellate court was asked to grapple with a submission that Bahar was plainly wrong, being the NSW Court of Criminal Appeal in Karim. Of the decisions that have followed Bahar, most have done so without an independent consideration of the principles of statutory interpretation underlying the decision, as no submissions were advanced that Bahar was plainly wrong (as I addressed earlier in these reasons).
Second, some of the Courts which have followed Bahar have levelled criticisms at the underpinning reasoning of McClure P. I note the disquiet amongst judges exists at both district and appellate court levels: see, for example, R v McCall [2022] NSWDC 78 at [52] and [58]; Dui Kol). I will consider those criticisms in more detail later in these reasons.
I pause to note that those concerns indicate that even amongst judges who are not satisfied that Bahar is plainly wrong, there are judges who are concerned with aspects of the reasoning underpinning the decision (including the sentencing judge in this case). In my view that is a matter relevant to an assessment of whether the case forms an established part of the Australian legal landscape.
Turning to the other matter identified by Allsop CJ. In my view, the principles outlined in Bahar are not “carefully worked out”. While the Court in Bahar relied upon well settled principles of statutory construction in its reasons, as several decisions have emphasised, the Court’s reasoning rests on an assumed equivalence between maximum and minimum penalties. There is nothing in the text, structure or context of the Migration Act or the Crimes Act that supports that equivalence. It is a false equivalence that undermines the reasoning of the Court in Bahar. I discuss this further below.
A further observation is worth noting. In my view, the nature of a case is a relevant factor to the meaning of plainly wrong.
As Greenwood J stated in BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157; 162 FCR 234 at [86]:
The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated
I agree with those observations.
The fundamental “issue” this case is concerned with is the nature of the formulation by which judges sentence individuals to a term of imprisonment. It concerns, above all, important questions concerning legality, judicial discretion, and penal laws. As the sentencing judge stated at [91]:
The imposition of criminal penalties is the most basic infringement of personal liberty. Whether described as the principle of legality or simply as a principle of interpretation which tends against an interpretation which expands the scope of penal laws, it is a principle which the legislature must be taken to be conscious of.
In my view, given the factors outlined above, this is not a case where an intermediate appellate court ought to be unduly deferential to earlier intermediate appellate court decisions: Miller v The Queen [2016] HCA 30; 359 CLR 380 at [128]. Rather, this Court should carefully assess the principles outlined by the Court in Bahar and the criticisms made of that approach by Supreme Court judges in both NSW and the ACT and assess whether the approach adopted in Bahar is plainly wrong.
Is the approach to mandatory minimum penalties adopted in Bahar “plainly wrong”?
At [54] of Bahar, McClure P stated:
The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.”
It is apparent from that passage that the interpretation adopted by the Court in Bahar rests upon an assumption, namely that Parliament intended that a mandatory minimum penalty be equivalent to a maximum penalty. If that assumption is plainly wrong, it necessarily follows that the reasoning of the Court in Bahar is plainly wrong.
The assumption was criticised by the sentencing judge in this case who stated at [82]:
In my respectful opinion, this reasoning assumes the correctness of the characterisation of a statutory minimum that it seeks to prove. It assumes that what it describes as a statutory minimum is a goalpost equivalent to the statutory maximum. Once that assumption is made there is no doubt that the reasoning is correct. However, the issue is whether that assumption can be justified by the statutory language used. It is notable that the judgment simply refers to a “statutory minimum” and hence, by that use of language, suggests an equivalence between the statutory minimum and statutory maximum. However, whether there is such an equivalence must be a question requiring detailed examination of the text of the statute and its context.
(emphasis added)
I agree with those observations. Whether a minimum sentence is equivalent to a maximum penalty is, ultimately, a normative question on which s 233C of the Migration Act is silent.
As the High Court outlined in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]:
[T]he task of statutory construction must begin with consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text …
These principles are derived from the High Court judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 149 CLR 355 at [69], [78]:
… the process of construction must always begin by examining the context of the provision that is being construed
These principles were further discussed in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 where Kiefel CJ, Nettle and Gordon JJ stated at [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
See also The Queen v A2 [2019] HCA 35; 269 CLR 507 at [37].
Despite the statement at [52] in Bahar claiming that the Court’s reasoning was driven by the statutory text, there is nothing in the text of s 233C of the Migration Act that supports the assumption made by the Court. As the sentencing judge stated at [80]:
… The reasons in Bahar do not disclose that any particular attention was paid to the language used, namely, that that a penalty of “at least” the specified length be imposed. Rather, the exercise of statutory interpretation appears to have been achieved more by reference to assumed context and purpose than by reference to the actual words used or any textual expression of the purpose of the legislation.
(emphasis added)
I agree with the observations concerning the text of what was then s 233C of the Migration Act made by the sentencing judge.
Similar observations have been made by Adams J (with whom McCallum J as her Honour then was agreed) in Dui Kol. In particular, his Honour stated at [12]:
Essentially, (and with unfeigned respect to the eminent judges who have thought otherwise) it is a mistake to import into s 233C a great deal more than the section, in terms, requires. There is nothing in the language of the section which suggests, let alone requires, that it be understood as applying the minimum sentence to cases in the least culpable category of seriousness. The section says nothing about seriousness.
Again, I agree with those observations. The only clear requirement imposed is that a sentence of “at least” a certain period is imposed. There is nothing in that text that suggests the minimum penalty must only be applied to offending of the least serious category. While the comments in Dui Kol are obiter, they offer a useful interpretative approach to what, as I have outlined above, is a question of statutory construction. While it is true that the observations are not binding on this Court, that does not mean that regard may not be had to those comments which reflect disagreement with the Bahar approach from two then-judges of the NSW Supreme Court.
Similarly, there is no statement in the explanatory memorandum for s 233C (or the provisions relevant to this appeal) that suggests that the legislature intended that a mandatory minimum is to be treated the same as a maximum penalty.
Nothing in the text, context or purpose of s 233C of the Migration Act states or requires that the mandatory minimum sentence is reserved for the least serious category offending. Nor is there any inference in the relevant explanatory memorandum that such an approach was intended in relation to the section.
It is evident to me that the reasoning of the Bahar approach relies upon an assumption which is not available from a proper approach to the text of the mandatory minimum provision in the Migration Act. I arrive at the same conclusion with regard to the equivalent provision contained in the Crimes Act, for reasons I will elaborate on below.
The equivalence between maximum and minimum penalties which underlies the Court’s reasoning in Bahar cannot be justified by the statutory language used. Therefore, the error can only be described as clear or patent, rather than merely a difference of view as to meaning (FAK19 at [18], quoting Treloar at 603 [28]–[29]). Further, this legislation has caused ‘unintended and perhaps irrational consequences’ (FAK19 at [18] quoting Treloar at 603 [28]) by resulting in broader proportionate increases to sentences that are not supported, in my view, by the statutory text.
It follows that in my view the reasoning in Bahar is plainly wrong and ought not be followed by this Court. For the same reason, the subsequent line of cases that have followed and applied Bahar should also not be followed by this Court.
The meaning of s 16AAB
Given my finding above that Bahar, and the cases that follow it, are plainly wrong, it is necessary to interpret the legislation before me.
In Dui Kol, Adams J undertook a process of statutory interpretation based upon the words of s 233C, at [12]:
Its ordinary meaning is that, whatever the degree of culpability which might, under the generally applicable law of sentencing, lead to a lesser sentence, the minimum mandatory sentence is to be imposed. A maximum penalty must be understood as meaning that, however grave the culpability of the offender might be, no greater penalty than the maximum may be imposed and is reserved for cases falling into the most culpable category. But there is no logical imperative which requires the minimum penalty to be applied only to cases falling into the least culpable category. The argument from symmetry, though beguiling, is by and large not a useful interpretative tool, legislation being what it is. The supposition that Parliament intended this outcome is a fiction and inconsistent with the Explanatory Memorandum.(emphasis added)
Adams J continued at [13]:
Accepting that the minimum sentence expresses the legislature’s assessment of seriousness, the section does not, in terms, require more to be done than to impose the mandatory minimum sentence where otherwise the sentence would be less harsh. The present construction erects unnecessary jurisprudence on what is, essentially, a simple arbitrary intervention in the sentencing process. I say “arbitrary“ because the minimum sentence takes no account of the actual circumstances of the offence (except, of course, for its essential elements) or the personal situation of the offender; it is, plainly enough, designed as a deterrent with all other considerations to be ignored.
(emphasis added)
The same analysis can be undertaken with regard to the legislation before the Court. There is no call to construct “unnecessary jurisprudence” on what is a “simple arbitrary intervention” in sentencing.
In my view, the approach to statutory construction undertaken by the sentencing judge in this matter at [77] to [93] is the correct way to interpret ss 16AAB and 16AAC. The plain meaning of the provision is to require sentencing judges to impose a sentence of “at least” the specified period. The text requires no more than that a sentencing judge assess all relevant sentencing considerations, come to their own view as part of the instinctive sentencing exercise as to the appropriate penalty and, if the penalty is less than the minimum sentence, impose the statutory minimum.
This interpretation accords with the broad discretion afforded to sentencing judges by s 16A of the Crimes Act, which sits alongside common law sentencing principles. The sentencing judge at [79] noted that s 16A is not expressly subject to the mandatory minimum sentence provisions of ss 16AAB and 16AAC. His Honour went on to state the following:
… the unqualified obligation in s 16A(1) of the Crimes Act remains to impose a sentence or make an order that is of “a severity appropriate in all the circumstances of the offence”. The mandatory minimum sentence provisions necessarily qualify s 16A in that they preclude non‑custodial penalties or penalties of less than the mandatory minimum but, subject to those necessary qualifications, do not deny the general obligation to make an order of a severity appropriate in all the circumstances. The note to s 16A, which refers to there being minimum penalties, is consistent with and would reinforce an interpretation that they were simply mandatory minimums. That is because first, the note only deals with minimum penalties and not with maximum penalties, suggesting a lack of symmetry. Second, the juxtaposition of the requirement for a sentence “of a severity appropriate in all the circumstances of the offence” and the terms of a note suggest that the note is operating to compel a minimum sentence but within a framework where the starting point is a sentence determined by the judge consistent with the general terms of s 16A(1) of the Crimes Act.
I agree with this analysis. In the present case, s 16AAB requires the court to impose a minimum sentence in circumstances where, subject to the exceptions in s 16AAC, a person is convicted of a particular offence, as listed in the table to s 16AAB. As with the relevant legislation in the Migration Act. In doing so, the section does no more than require a sentencing judge to impose a sentence of at least the minimum period specified for the offence.
Furthermore, while the explanatory memorandum and second reading speech indicate an intention to increase sentences, there is no indication that this was to be done by a proportionate increase to all sentences. Moreover, the language of the section supports the appellant’s interpretation as it invokes a positive requirement to impose a minimum penalty. As the sentencing judge outlined at [86]–[87]:
Sixth, the language of the explanatory memorandum does not provide support for the Crown’s interpretation over that contended for by the offender. So far as the general policy behind the legislation may be discerned from the explanatory memorandum and the second reading speech, it is clear that the intention was to increase sentences. However, it was not clear that this was to be done by a proportionate increase in all sentences as opposed to by eliminating the possibility of sentences below the threshold identified by the minimum sentence provisions.
Similarly, where the explanatory memorandum refers to the operation of s 16AAB of the Crimes Act, it refers (at [207]) to the court being “required to apply a minimum penalty of four years, subject to any reductions under proposed s 16AAC.” By emphasising the obligation to impose a minimum penalty it suggests that the provision is limited to doing just that, as opposed to achieving a proportionate increase across all penalties from a minimum threshold of four years.
(emphasis added)
In my view, the “mischief” to which the legislation is directed is the imposition of “inadequate” sentences by sentencing judges. That mischief is, in turn, addressed by requiring sentencing judges to impose a sentence of at least the specified period. This is not the approach adopted in Bahar.
The respondent submitted that Parliament ought to be presumed to have been aware of the Bahar approach in drafting ss 16AAB and 16AAC of the Crimes Act and this Court ought to find that the legislature intended that the Bahar approach would apply to those sections. This draws on the presumption that Parliament is aware of judicial rulings. I do not accept the respondent’s submission for the following reasons.
First, the presumption that Parliament is aware of judicial rulings is a weak one. Second, there is no reference in the explanatory memorandum to Bahar or any of the cases that have followed it. Third, the presence of the interpretive note inserted into s 16A(1) tends against the construction in Bahar as noted before. Fourth, and most importantly, to the extent that the presumption has any weight, in my view, the far more important presumption in the context of this appeal is the principle of legality. As I will now turn to, in my view, that principle tends against this submission. Absent clear words, this Court should not assume that the Bahar approach was intended.
In accordance with the principle of legality, were Parliament to have intended a general proportionate increase in sentences, Parliament would have done so only by clear and express language demonstrating unambiguous legislative intent. In my view, neither the text of the section nor the explanatory memorandum supports that interpretation.
The principle of legality operates as a bulwark against interference with fundamental rights in the absence of a clear expression of legislative intent. The principle of legality is, as the sentencing judge outlined at [91], a significant matter in favour of the appellant’s interpretation.
The strength and importance of the principle of legality depends on the nature of the right infringed by the legislation. As outlined by Edelman J in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [55]:
… [The principle of legality] usually represents the natural process of reasoning that the more important or fundamental a person's right, and the greater the alleged adverse effect on the right, the less likely it is that Parliament would have intended that effect, and the clearer the words that are required to achieve it. It is, perhaps unsurprisingly, a principle that is pertinent when considerations of the legality of executive action are concerned. Implications that are based upon principles of natural justice are important liberties that have been held only to be excluded by "plain words of necessary intendment", and not by "indirect references, uncertain inferences or equivocal considerations"[49]. [49] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [14]-[15], quoting respectively Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57 and The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396; [1958] HCA 6.
(footnotes included)
That the legislature intended to increase all sentences by the imposition of s16AAB can only be described as an “uncertain inference” (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [49]). Indeed, when regard is had to the explanatory memorandum, the far clearer inference is that Parliament merely intended to prevent a sentencing judge from imposing an “inadequate” sentence, inferentially sentences less than the mandated minimum period.
The Bahar approach has the effect of an overall increase in sentences for all offenders. If Parliament had intended this, then to adopt the language of Edelman J, clear words would be required. As I have outlined above, the Bahar approach is not supported by the language of the statutory section, which merely requires a court to sentence an offender to a sentence of imprisonment of “at least” a mandated period.
In my view, while mandatory minimum sentences require sentencing judges to impose greater sentences than may otherwise have been imposed but for the mandatory minimum provision, in interpreting mandatory minimum provisions, judges must take care to ensure that they do no more than Parliament has intended.
Turning to the independent reasons of Allsop P in Karim, to the extent that the principle of parity or equality in sentencing is offended by the operation of a mandatory minimum provision, that is a function of the statute and not of sentencing judges or intermediate appellate courts.
I pause here to address the issue of comments made by the High Court which the Prosecution contends support the Bahar approach to sentencing. In Magaming v The Queen [2013] HCA 40; 252 CLR 381 (Magaming) at [48] French CJ, Hayne, Crennan, Kiefel and Bell JJ stated the following:
In Markarian v The Queen, the plurality observed that "[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.
Further, at [105], Keane J stated:
The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity, and to determine whether a level of punishment should be enacted as a ceiling or a floor.’
The observations made about the operation of mandatory minimums were not made in the context of determining the relevant issue before this Court. The comments did not arise following argument and were made in a different context, and therefore are not determinative of the proper interpretation of mandatory minimum sentences arising out of the Migration Act or the Crimes Act. Adams J made similar comments in Dui Kol, noting the following at [15]:
In Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381; (2013) 302 ALR 461; (2013) 87 ALJR 1060, the Court dealt with the question whether the prescription of a mandatory minimum sentence for an offence under s 233C(1) was constitutional. French CJ, Hayne, Crennan, Kiefel and Bell JJ observed (at [48]), a propos whether the mandatory minimum penalty was arbitrary and non-judicial, that, as with a maximum available sentence constituting a yardstick of the upper range, “[the] prescription of a mandatory minimum penalty … fixes one end of the relevant yard stick“; see also Keane J at [103], [105]. However, I would not read these passages as directed to the distinction to which I have referred.
It is also important to address a further point which tends against a reliance on the obiter in Magaming as support for the interpretation advanced by the prosecution. The Bahar approach also raises concerns regarding parliamentary interference with judicial discretion in sentencing. McCallum J (as her Honour then was) in Dui Kol, referred to the High Court decision of Magaming, stated at [28]-[30]:
The analysis preferred by Adams J finds some resonance in the judgment of Keane J in Magaming at [107], where his Honour described as “ironic” the appellant’s invoking of the separation of powers to impugn the validity of the provisions fixing mandatory minimum sentences for certain people smuggling offences. Keane J said:
In truth, the institutional integrity of the judiciary would be compromised by accepting the argument that the validity of s 236B(3)(c) of the Act is conditional upon acceptance by a sentencing judge that the sentence enacted by the legislature is no more than is appropriate to that judge’s opinion of the culpability of the person convicted of the offence.
Those remarks reflect an analysis which would hold that a statutory mandatory minimum sentence, while removing the power of the sentencing judge to impose a lesser sentence, does not supplant the function of assessing the appropriate (proportionate) penalty for the offending under consideration. Common to the several judgments in Magaming is an acceptance that that is exclusively a judicial function, albeit one bounded (inter alia) by statutory requirements: see majority judgment at [47]; Keane J agreeing at [100]; and per Gageler J at [61]. The exercise of that exclusively judicial function is bound but not bent by the statute.
I appreciate that the High Court in Magaming did not directly address the correctness of that aspect of the judgment of the Court of Criminal Appeal (which, as noted by Allsop P at [40], was not central to the argument). Nevertheless, a measure of tension may be discerned between the unanimous premise of the judgments in Magaming and the principles in Bahar approved in Karim
(emphasis added)
I agree with her Honour’s reasoning above. There is nothing in the text of s16AAB, nor in the act as a whole, which expressly indicates that Parliament intended the judicial function of sentencing to be “bent” as opposed to “bound”. As counsel for the offender correctly submitted, clear and unambiguous language is required if such a limit on judicial discretion is intended by Parliament. Such language is absent in the current text of s 16AAB.
For the reasons outlined above, in the result, the approach to s 16AAB requires a sentencing judge to undertake an instinctive synthesis and come to their own view as to the appropriate sentence. If that sentence is less than the required minimum, that judge must then impose the statutory minimum as a starting point. To that starting point, and if relevant, the sentencing judge must then apply any relevant discount for a plea of guilty or assistance as required by s 16AAC.
I pause here to note that the respondent submitted that such an approach is “awkward”. I agree. It is awkward for a sentencing judge to have to assess their sentence as against a set minimum (in this case for example, a minimum of four years) and then turn to consider any discount for a plea of guilty or assistance to authorities which can then lower the sentence in accordance with s 16AAC. This is not the usual approach.
Indeed, such an approach is particularly “awkward” in the case of sentencing federal offenders as there is no general requirement at a federal level that a sentencing judge specify the quantum of the discount awarded for a plea of guilty (leaving aside the open issue as to whether state legislation on this point is picked up and applied by s 68 of the Judiciary Act 1903 (Cth)).
The respondent further submitted that this awkwardness tends against the interpretation I have found above. I do not accept that submission. Section 16AAC clearly creates some “awkwardness” for judges, including that it now in effect mandates the statement of the discount for a plea of guilty for some federal offences. That awkwardness is, however, a product of the statutory text and is not a matter that is relevant to the meaning of the text.
Further, it is not apparent to me how the awkwardness is resolved were the Bahar approach followed. “Awkwardness” on either approach is an inevitability of the statute’s operation.
Conclusion in respect of the approach a judge should take in applying ss 16AAB and 16AAC
As is apparent from the above, in my view, sentencing judges should do no more than apply the plain text of the legislative provisions. Namely, judges must ensure that they impose a sentence of “at least” the mandatory minimum.
In essence, a sentencing judge should apply all relevant sentencing factors (outside of the plea of guilty and the discount for assistance as required by the section) as part of the instinctive synthesis approach to determine the appropriate sentence. If that is less than the required minimum the judge should raise the sentence to the threshold.
It follows that, in my view, the sentencing judge erred by following (as his Honour was bound to do as a single judge) the Bahar approach. In this regard I do not agree with the reasons of Kennett and Rangiah JJ.
As I noted above, I agree with Kennett and Rangiah JJ that his Honour erred in assessing the seriousness of the offending conduct by only having regard to a portion of the material.
I turn now to consider the sentence I would have imposed.
Resentencing Exercise
I agree with Kennett and Rangiah JJ that the starting point for the transmission and access sentences was appropriate. I also agree that those sentences should be almost wholly concurrent with the possession offence (although I would have determined slightly more cumulation).
Using the approach to the minimum provision I have adopted above, I would have reached a lower starting point of four years and nine months imprisonment (noting the volume of material involved). This reflects a similar finding on seriousness as the sentencing judge judge before the adjustment his Honour made.
To that sentence I would have applied a 25 percent discount for the plea of guilty.
The sentences I would have imposed (factoring in the guilty plea discount) would have been:
(a)On the charge of possession of child abuse material, three years, six months and 22 days;
(b)On the charge of access of child abuse material, one year and three months; and
(c)On the charge of transmission of child abuse material, one year and three months.
Factoring in cumulation, the overall sentence I would have imposed for the Commonwealth offences would have been three years and nine months commencing on 1 March 2021 and expiring on 30 November 2024.
I note that for Commonwealth offences there is no “statutory or judicially determined “normal” ratio between the non-parole period and the total sentence”: R v Jousif [2017] NSWSC 1299; 325 FLR 108 at [315]. In my view, taking into account the circumstances of the case and what the minimum period of imprisonment should be, the appropriate non-parole period would be two years and one month (approximately 55 percent of the head sentence).
I would have imposed a non-parole period from 1 March 2021 to 31 March 2023.
Concluding remarks
Nothing in these reasons should be taken to suggest that the Commonwealth could not provide for a mandatory minimum regime that was in accordance with the approach adopted in Bahar. There was no argument advanced before this Court that such an approach would not be constitutional or that there is any relevant limitation on the Commonwealth government’s power to impose such a sentencing regime.
Were the Commonwealth to clearly legislate in such a way as to expressly adopt and require the Bahar approach then, of course, sentencing judges would be so bound. For the reasons I have outlined above, however, the legislation does not mandate the Bahar approach. Judges should do no more than the legislation requires.
To read into a mandatory minimum regime more than Parliament has expressly provided for and intended is, in my view, not the correct approach to sentencing in our courts.
KENNETT AND RANGIAH JJ:
Introduction
Raymond Hurt (the offender) pleaded guilty to three charges in the Magistrates Court and was committed to the Supreme Court for sentence. The offences for which guilt was accepted were:
(a)transmission of child abuse material contrary to s 474.22(1)(a)(ii) of the Criminal Code 1995 (Cth) (Criminal Code) (transmission offence);
(b)access of child abuse material contrary to s 474.22(1)(a)(i) of the Criminal Code (access offence); and
(c)possession of child abuse material contrary to s 474.22A(1) of the Criminal Code (possession offence).
The background facts are set out in the reasons of the primary Judge at [5]–[22].
Briefly, the transmission offence arose from the offender having downloaded a number of files including 357 images and seven videos to his mobile phone between 26 and 31 May 2020. The primary Judge described this as causing the material “to be transmitted to himself”. The access offence arose from the offender having accessed another 104 images, which were stored on a directory in his phone, on 4 and 5 June 2020.
The possession offence, which gives rise to the legal issues in this appeal, arose from the material that was found to be stored on the offender’s phone when a search warrant was executed at his house on 29 July 2020. That material comprised the 461 photos and seven videos covered by the transmission and access offences, together with 25 images and 48 videos that had come into the offender’s possession more recently.
It was an agreed fact that the 25 images referred to in the previous paragraph (the new images) had been obtained or accessed on or after 23 June 2020, while all of the other material had been obtained or accessed before that date. The significance of the date will emerge shortly.
The primary Judge assessed the objective seriousness of the offences by reference to the numbers and character of the images and videos. His Honour assessed the transmission offence as being in the mid-range of objective seriousness (at [31]), the access offence as being in the mid-range but at the lower end of that range (at [32]), and the possession offence as being in the mid-range (at [30]). However, as to the possession charge, complexities arose from the application of a minimum sentence provision that came into effect on 23 June 2020. Those complexities give rise to the main issues in this appeal.
Ultimately, the primary Judge sentenced the offender to a term of imprisonment of 15 months on the transmission offence; a further term of 15 months’ imprisonment on the access offence; and a term of four years’ imprisonment on the possession offence. These terms were partially concurrent with each other. The term of imprisonment for the possession offence was to end on 28 February 2025, the term for the access offence on 28 June 2025 and the term for the transmission offence on 28 October 2025.
Both the offender and the Crown appealed. Each appeal alleges a distinct error by the primary Judge in applying the minimum sentencing provisions referred to earlier, and thus raises an issue of statutory construction. These issues will be considered next. The offender also argues that the sentence was manifestly excessive, while the Crown argues that it was manifestly inadequate. These contentions will be addressed after the questions of construction have been resolved.
Offender’s issue 1: effect of the mandatory minimum sentence
The issue
Division 2 of Part 1B of the Crimes Act 1914 (Cth) (Crimes Act), which was first inserted in 1990, contains general sentencing principles for Commonwealth offences. Its core provision is s 16A, which provides (relevantly) as follows:
16AMatters to which court to have regard when passing sentence etc.—federal offences
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Note:Minimum penalties apply for certain offences―see sections 16AAA,16AAB and 16AAC.
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a)the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(ea)if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
(f)the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa)the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)if the person has pleaded guilty to the charge in respect of the offence:
(i) that fact; and
(ii) the timing of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(ja)the deterrent effect that any sentence or order under consideration may have on other persons;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(ma)if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(n)the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
(2AAA)In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a)when making an order—to impose any conditions about rehabilitation or treatment options;
(b)in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.
It is appropriate to note at this point that the matters mentioned in s 16A(2) do not include the maximum penalty specified by the legislature for the offence in relation to which sentence is being passed. However, courts in Australia routinely have regard to the statutory maximum in assessing, under s 16A(1), what order is “of a severity appropriate in all the circumstances of the offence”. This reflects the manner of exercise of the sentencing jurisdiction at common law. In Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian) the majority said (at [31]):
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Sections 16AAA, 16AAB and 16AAC were inserted into Division 2 by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (the 2020 Amending Act). They were contained in Part 1 of Schedule 6 to that Act, which commenced on 23 June 2020. They provide (relevantly) as follows (items and subsections not directly relevant in these proceedings are not shown):
16AAAMinimum penalties for certain offences
Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty Item Column 1
Offence
Column 2
Sentence of imprisonment
10 offence against section 471.22 of the Criminal Code 7 years 16AABSecond or subsequent offence
(1)This section applies in respect of a person if:
(a)the person is convicted of a commonwealth child sexual abuse offence (a current offence); and
(b)the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.
(2)Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty Item Column 1
Current offence
Column 2
Sentence of imprisonment
24 offence against subsection 474.22(1) of the Criminal Code 4 years 24A offence against subsection 474.22A(1) of the Criminal Code 4 years
16AACExclusions and reductions—minimum penalties
…
Reduction of minimum penalty
(2)A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or sub-s 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a)the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b)the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3)If a court may reduce a sentence, the court may reduce the sentence as follows:
(a)if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b)if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c)if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
Section 16AAB applied in the present case, as a result of earlier offending by the offender.
The 2020 Amending Act did not amend s 16A(1), but inserted the note that appears in the extract set out above. It also substituted the current form of s 16A(2)(g) for an earlier version, inserted s 16A(2)(ma) and (2AA), and made some minor consequential amendments. These changes to s 16A reflected other aspects of the 2020 Amending Act and do not have a bearing on the present issue.
The first issue in the offender’s appeal concerns the interaction between the prescription of a minimum penalty on the one hand and the Court’s sentencing discretion, embodied in s 16A, on the other. Where (as in the vast majority of cases) no minimum penalty is specified, a court will assess the seriousness of the offence and determine an appropriate sentence in a range that extends from taking no action to imposing the maximum penalty. The sentence imposed in an individual case will be at a point within that range that reflects the seriousness of the offending. Where a minimum is specified, two approaches are potentially available. One is to proceed in the manner just mentioned but then, if the resulting sentence is below the minimum, increase it to the minimum. The other is to treat the specified minimum as setting the base of the range of potentially appropriate sentences, so that the range extends from that point (for the least serious offence) to the maximum (for the most serious).
In many if not most cases, adopting the second approach rather than the first will increase the sentence that is imposed. Here, for example, the maximum penalty for the possession offence was 15 years’ imprisonment. Taking the first approach, a mid-range offence might attract a term of 7.5 years, which would be above the minimum and therefore not affected by it. Taking the second approach, however, the same offence would attract a term of 9.5 years (the midpoint between 4 and 15).
Authorities
The first approach was taken by Riley CJ in R v Pot (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011) (Pot) in sentencing an offender for a people smuggling offence under s 232A of the Migration Act 1958 (Cth) (Migration Act) as it then stood, which was subject to a minimum sentence specified by s 233C of that Act. This approach can therefore be conveniently referred to as the Pot approach. His Honour referred to earlier decisions in the Northern Territory where the same approach had been taken.
The Pot approach was rejected, and the second approach adopted, by the Court of Appeal of the Supreme Court of Western Australia in Bahar v The Queen [2011] WASCA 249; 45 WAR 100 (Bahar). The second approach can therefore be conveniently referred to as the Bahar approach.
Bahar also involved sentencing for an offence under s 232A of the Migration Act as it then stood, subject to the minimum penalty specified by s 233C. Section 233C used the same language as the current ss 16AAA and 16AAB of the Crimes Act: “the court must impose a sentence of imprisonment of at least …”. McLure P, with whom Martin CJ and Mazza J agreed, referred to s 16A of the Crimes Act and noted that it had been construed as incorporating common law principles of sentencing including the principle of “totality” (at [35]–[42]). Her Honour then said, at [46]:
Taking into account the statutory maximum penalty is well accepted and uncontroversial. The nomination of a statutory maximum penalty for a statutory offence has never to my knowledge been regarded as an inappropriate incursion or limitation on the scope of the judicial sentencing discretion. It is and always has been properly regarded as being within the sole purview and responsibility of the legislative arm of government. Statutory minimum penalties are less common and are often accompanied by critical judicial comment, curial and extra-curial: see Trenerry v Bradley (1997) 6 NTLR 175 at 187. However, a statutory minimum penalty, like a statutory maximum, is a legislative direction as to the seriousness of the offence. No-one has (yet) suggested that a minimum statutory penalty itself substantially impairs or is incompatible with the institutional integrity of the courts: see Palling v Corfield (1970) 123 CLR 52 at 58; R v Ironside (2009) 104 SASR 54.
After quoting the passage from the reasons of the High Court in Markarian that we have set out above at [121], her Honour observed:
Prima facie, that statement is equally applicable to minimum statutory penalties: see also Muldrock v The Queen (2011) 244 CLR 120 at [26]-[31].
Turning to the more detailed issues of statutory construction, McLure P then said, at [53] –[54]:
The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.
Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.
Secondly, the Director referred to authority for the proposition that, where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489, [15] (Fletcher) (French CJ, Hayne Kiefel, Gageler and Keane JJ). As noted in both of these cases, the validity of this presumption as a guide to legislative intention has been questioned, and it tends to be relied on only where there is something in the nature of the legislation or the legislative history to indicate an awareness on the part of the legislature of earlier authority on the meaning of the language that is being re-enacted. However, that is not necessarily a high hurdle. In Fletcher, for example, the Court gave some weight to the presumption on the basis that it was simply “difficult to imagine” that the earlier authorities “were not known to those involved in the field as interpretive decisions of considerable significance and likely to be applied nationally” (at [16]).
In the 2020 Amending Act, the Parliament inserted provisions of a kind whose effect on the sentencing discretion under s 16A had been established by a body of jurisprudence at intermediate appellate level. The new provisions use the same language as the provisions whose effect on the sentencing discretion had been considered in the earlier cases. Arguably, the particular form of words used in the minimum sentence provisions is not critical—rather, the issue is how s 16A(1) is to be understood as operating in response to an offence that has both maximum and minimum sentences—so that the case is not really one of re-enactment but one of consistent application of s 16A. On the other hand, however, the manner in which each minimum sentence provision interacts with s 16A(1) is an aspect of the operation of that provision, so that, where the legislature has used the same language as was used in provisions whose effect has been judicially considered, the presumption may have some work to do.
The basis for attributing actual knowledge about the Bahar line of cases to any individual legislator is slender. The only Parliamentary material referred to by the Director in this connection was Bills Digest (Digest No 53 of 2019–20, 19 November 2019), which analysed the Bill for the 2020 Amending Act. Bills Digests are prepared by the Parliamentary Library to assist Members and Senators in their consideration of Bills before the Parliament. As noted by the Director, Bills Digest No 53 refers at p 33 to the decision of the High Court in Magaming. However, this was in a part of the Digest dealing with questions of constitutional power; and, as noted earlier, the present issue was not before the High Court in that case and is only hinted at in the reasons of the Justices. The section dealing with the particular provisions under consideration here does not mention the Bahar line of cases or express any understanding one way or the other on the question of construction currently before the Court. Nor could it be said that minimum sentences are a topic frequently legislated upon, so that Members and Senators can be presumed to be acquainted with how particular forms of words are interpreted.
However, the statement in Fletcher at [16] strongly suggests that it is enough if the case law on the construction of a particular form of words is well known to persons working in the relevant field including those responsible for developing and drafting legislation. To similar effect, in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309, [81] (a passage quoted in Fletcher), McHugh J relied on an observation that:
[I]ndustrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions.
(emphasis added)
These observations cohere with statements of high authority to the effect that legislative purpose is to be identified “objectively”, rather than searching for the subjective intentions or understandings of any particular person (eg, Certain Lloyd’s Underwriters at [25]). On this understanding, the presumption that Parliament uses words consistently with the way the same words have been interpreted by the courts provides some support for the construction advanced by the Director. As in Fletcher, it is difficult to imagine that the language of the draft provisions in the Bill for the 2020 Amending Act was not developed by people familiar with the effect given to identical language in Bahar and the cases applying it.
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 in 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.
In the result, there was no error in the conclusion of the primary Judge at [94] that the Bahar approach was to be applied.
Crown’s issue 1: the effect of the application provision
The possession offence to which the offender pleaded guilty involved a single count alleging that, on 29 July 2020, he had possession of child abuse material and that he used a carriage service to obtain the material. There is no doubt, therefore, that the offender was in possession of child abuse material (being all of the images and videos referred to at [114] above) on a date after the commencement of s 16AAB. However, it was also an agreed fact that only 25 of the images (and none of the videos) had come into his possession after the commencement date. These circumstances gave rise to an issue before the primary Judge concerning the operation of item 3 in Part 1 of Schedule 6 to the 2020 Amending Act.
How the issue arises and its consequences
Item 3 of Schedule 6 provides as follows:
3Application provisions
(1)Subject to subitem (2), the amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part.
(2)Section 16AAB of the Crimes Act 1914, as inserted by this Part, 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 (regardless of whether the relevant previous conviction of the person for a child sexual abuse offence occurred before, on or after that commencement).
Item 3 provides that s 16AAB applies in relation to a conviction for a Commonwealth child sexual abuse offence where certain conditions are met. Thus, once a person is convicted of an offence of the relevant kind, s 16AAB either applies or does not apply, depending on the satisfaction of those conditions (which will be considered below). Depending on whether those conditions are satisfied, the relevant minimum sentence will either be applicable to the conviction considered as a whole or inapplicable.
This is, in our view, an inescapable consequence of the language of item 3. However, it does not appear to be how the matter was put to the primary Judge. His Honour recorded the submissions of the parties as follows (at [96]):
The offender contended that the transitional provisions had the effect that only those 25 images triggered the operation of the amended sentencing regime. The Crown contended that given that the charge related to possession on 29 July 2020, the new regime applied in relation to possession of all of the images and videos on that day.
The consequence of the submission for the offender was outlined in this way (at [102]):
[The] submission was only put on the basis that in assessing the objective seriousness for the purposes of the amended sentencing regime, regard should only be had to that material (the 25 photographs) that was obtained or accessed using a carriage service after 23 June 2020.
Underlying these submissions was a difference of view between the offender and the Crown as to what was “the relevant conduct” for the purposes of item 3(2). That issue will be addressed below. Our present concern is to identify the context in which that issue arises and the consequences of the competing positions. These matters appear to have been approached in the Court below in a manner that does not accord with the statutory text.
His Honour accepted the submissions of the offender and concluded, therefore, that “the increased penalties only apply to the offence insofar as it involved the 25 additional photographs” (at [106]). Consistently with the way the submission had been described, His Honour then treated this conclusion as affecting the assessment of the objective seriousness of the offending. Having initially assessed the possession charge as being in the mid-range of objective seriousness (at [30]), his Honour adjusted that assessment to the low end of the mid-range (at [108]). This part of the reasoning is brief and we have had some difficulty understanding how, as a matter of legal analysis, the application of a minimum sentence requirement to part of the conduct involved in an offence can lead to an adjustment of the objective seriousness of that offending.
Section 16AAB prescribes the minimum penalty that the court must impose for an “offence” of which a person has been “convicted”. In our view, it is simply not capable of applying in relation to part only of an offence. If such an outcome were textually available, the consequence would seem to be that the minimum penalty would apply in respect of part of the offending conduct (here, it was suggested, possession of 25 photographs) and the offender would need to be sentenced separately, and additionally, for the remainder. No party suggested that the provision was intended to operate in that way. Correspondingly, as we have noted above, the application provision in item 3(2) of Schedule 6 to the 2020 Amending Act gives s 16AAB operation in respect of a conviction, not in respect of particular conduct that forms part of an offence.
The submission that was acceded to by his Honour was, therefore, inconsistent with the terms of the Act.
In argument on the appeal, senior counsel for the offender supported the position taken below, but indicated (unsurprisingly) that his client would welcome a result in which s 16AAB did not apply to the possession offence at all. In further written submissions he embraced more fully the proposition that the application provision is “binary”. The Director pointed out that this position had not been advanced by the offender below, but accepted in her further written submissions that the Court would ultimately have to give effect to what it considers to be the correct construction of the provisions.
This is sufficient to mean that the Crown’s appeal should be upheld and the sentencing discretion should be exercised afresh. The available outcomes of the point that had been raised about the operation of the application provision were that s 16AAB did not apply (in which case the gravity of the offending was to be assessed on the basis that there was no fixed bottom end to the range of potential penalties), or that s 16AAB did apply (so that the gravity of the offending as a whole—which his Honour had assessed as being in the mid-range—was to be assessed on the basis that the range of potential penalties extended from four years to 15 years). The approach taken by the primary Judge does not accord with either of these outcomes.
However, for the sentencing process to be completed, it will be necessary to determine which of those outcomes is the correct one; that is, whether s 16AAB applies or does not apply in relation to the possession offence in this case. That, as we have noted, depends on how the reference to “the relevant conduct” in item 3 is to be construed. We turn to that issue next.
The relevant conduct
Identification of the “relevant conduct” in this case depends on an understanding of s474.22A of the Criminal Code, which is as follows.
474.22APossessing or controlling child abuse material obtained or accessed using a carriage service.
(1)A person commits an offence if:
(a)the person has possession or control of material; and
(b)the material is in the form of data held in a computer or contained in a data storage device; and
(c)the person used a carriage service to obtain or access the material; and
(d)the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2)Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3)If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a)Obtained or accessed the material; and
(b)Used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
There are three broad approaches that need to be considered.
The Crown emphasised, correctly, that item 3(2) applies in relation to the 35 diverse offences referred to in the table in s 16AAB. The phrase “the relevant conduct” needs to be given a construction that allows item 3(2) to apply sensibly across a range of offences, which may involve a variety of elements and may or may not involve specific proof by the prosecution of particular elements. In substance, the position of the Crown was that the “relevant conduct” is the conduct that is criminalised by the relevant offence-creating provision. That involves analysis of the elements of the offence, in the light of the overarching provisions of Part 2.2 of the Criminal Code.
Section 3.1 of the Criminal Code provides that an offence “consists of physical elements and fault elements”. Section 4.1 provides as follows in relation to the physical elements of an offence:
4.1Physical elements
(1)A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
“Conduct” is thus a term that is defined in the Criminal Code (albeit in a manner that is not obviously different from its ordinary meaning) and given work to do in the conceptual underpinning of the body of criminal law embodied in that Code. Thus, in the Crown’s submission, the offence for which a person has been convicted needs to be analysed in order to establish which of the elements of the offence are properly understood as comprising “conduct” according to the conceptual framework employed in the Criminal Code.
As to the analysis of s 474.22A of the Criminal Code, the Crown’s submission relies heavily on the analysis of the Victorian Court of Appeal in Allison (a pseudonym) v The Queen [2021] VSCA 308; 362 FLR 445 (Allison) at [40]–[47]. At [40], the Court identified the possession offence as having the following elements:
(i) The accused possessed or controlled material
Physical element: conduct
Fault element: intention
(ii) The material was in the form of data held in a computer or contained in a data storage device.
Physical element: circumstance
Fault element: recklessness
(iii) The accused used a carriage service to obtain or access the material.
Physical element: circumstance
Fault element: absolute liability
(iv) The material possessed was child abuse material
Physical element: circumstance
Fault element: recklessness
At [41], the Court expressly rejected a submission that the element in s 474.22A(1)(c)—that the accused used a carriage service to obtain or access the material—was a “conduct” element rather than a “circumstance” element, although the Court went on to say that this conclusion was not necessary for its decision.
Applying the reasoning in Allison (so the submission went), the only “conduct” criminalised by s 474.22A is the actual possession of the relevant material. This was, therefore, the “relevant conduct” for the purposes of item 3(2). The final step is that the offender engaged in this conduct (that is to say, he possessed all of the relevant material) after the relevant commencement date of 23 June 2020.
The submissions for the offender began by emphasising s 4F of the Crimes Act, which provides that, where a provision or law of the Commonwealth increases the penalty for an offence, the penalty as increased applies only to “offences committed after the commencement of that provision”. However, not only is that general principle capable of being overridden by specific provisions, but it begs the question when the relevant offence is properly said to have been “committed”.
The offender’s argument is broadly consistent with that of the Crown in that it refers to provisions in Part 2.2 of the Criminal Code for an understanding of what is meant by “conduct”. The argument parts company with that of the Crown when it reaches s 474.22A. In the offender’s submission, the element in sub-s (1)(c) is a “physical element of circumstance in which conduct occurred”.
If it is given that characterisation, the use of a carriage service to obtain the material is an aspect of the “conduct” that must be established in order to prove the offence, and thus part of the “relevant conduct” of which item 3(2) speaks.
As initially advanced by the offender, the next step would appear to involve identifying particular child abuse material and considering whether, for each item of such material, the conduct occurred before the relevant commencement date. For reasons explained above, we do not think that the offence can be disaggregated in this way. However, the offender’s argument can also lead to a different conclusion. That is that, when item 3(2) refers to the “relevant conduct”, it speaks of all of the conduct necessary to establish the offence that has been charged and proven (or the subject of a guilty plea). In this case, because the offender faced a single charge of possessing all of the material, the condition in item 3(2) could be met only if all of that material had been obtained by the use of a carriage service after the commencement date.
The third approach is that adopted by the primary Judge. His Honour did not find it necessary to engage in the characterisation of physical and fault elements required by the Criminal Code. He reasoned that s 474.22A contains, as an element of the offence, that “the person used a carriage service to obtain or access the material”; that that involves conduct having occurred in the past; and that that is sufficient to bring it within the “relevant conduct” that is “engaged in” for the purposes of item 3(2) (at [103]). The next step in his Honour’s reasoning was that the expression “conduct engaged in” requires that all of the conduct required to constitute the offence was engaged in after the relevant commencement date (at [104]). (Item 3(2) does not use the expression “conduct engaged in”. Rather, it requires that “the relevant conduct was engaged in” on or after a particular day. We take his Honour to be referring to the expression “relevant conduct”, which can plausibly be read as referring to all of the conduct required to constitute the offence.)
The subject matter of item 3 is convictions for particular Commonwealth offences, all of which are created by provisions of the Criminal Code. The Criminal Code is, as its name suggests, a code. As well as creating offences, in a way that spells out with some care the elements of each offence, it includes in Chapter 2 a set of principles that assist in identifying what needs to be proved in order for criminal guilt to be established.
The elements of an offence are divided into “physical elements” and “fault elements”. For a person to be found guilty of an offence, it is necessary to prove each of the relevant physical elements, together with one of the applicable fault elements (if a fault element is required) for each of those physical elements: s 3.2. As to physical elements, as we have noted, a distinction is drawn in s 4.1 between “conduct” and “a circumstance in which such conduct, or a result of conduct, occurs”. That distinction matters because, if the law creating an offence does not specify a fault element for a physical element, the relevant fault element for conduct will be intention, whereas the relevant fault element for a circumstance will be recklessness: s 5.6. Section 474.22A itself is an example of a provision where, for some physical elements, fault elements are not specified.
The Criminal Code and the Crimes Act should, so far as possible, be read together as a harmonious body of law. The Crimes Act exhibits an awareness of the Criminal Code by, for example, expressly applying the principles in Chapter 2 of the Criminal Code to the offences that it creates: s 3BA. We therefore consider that a provision such as item 3, whose enactment postdates that of the Criminal Code, should be understood to use basic expressions such as “conduct” consistently with their usage in the Criminal Code. On that basis, we would read the expression “the relevant conduct” in item 3(2) as referring to the acts or omissions comprised in each of the conduct elements of the relevant offence.
The elements of the offence created by s 474.22A are in sub-s (1). It is not in doubt that para (a) describes an element of conduct. Nor is it in doubt that paras (b) and (d) describe elements of circumstance. The contest between the parties is as to the nature of para (c).
It is significant that, whereas para (a) is expressed in the present tense, para (c) is expressed in the past tense. This indicates that the offence is committed when the accused does the thing referred to in para (a) (provided the relevant fault element is present, and the relevant circumstances are also present). Possession or control of material of the relevant kind is the conduct that is criminalised. Paragraph (c) refers to something that has happened before, and lies in the background to, the conduct described in para (a). The text of sub-s (1) therefore favours the view that para (c) describes an element of circumstance rather than of conduct.
Two aspects of the statutory context support this view.
(a)First, “accessing” child abuse material (one of the acts referred to in para (c)) is clearly a conduct element in the separate offence created by s 474.22. There, it is described in the present tense as one of the types of conduct that is criminalised. This serves to emphasise that, when s 474.22A(1) refers to having “accessed” or “obtained” the material in a particular way, it is describing part of the setting in which the conduct in para (a) occurs.
(b)Secondly, s 474.22A(2) provides that absolute liability applies to para (1)(c); and s 474.22A(3) reverses the onus of proof in relation to that element. Thus, the prosecution is relieved of the necessity to prove that the material was obtained or accessed using a carriage service, and it will not avail the accused to show that none of the fault elements referred to in Division 5 of Part 2.2 was present when the obtaining or accessing occurred. These provisions are not logically inconsistent with the element described in para (c) being one of conduct. However, they reinforce the impression that, in creating a distinct offence of possession of child abuse material, Parliament was treating the anterior obtaining of that material as a background circumstance rather than as part of the conduct intended to be criminalised.
It was also submitted for the Crown that para (c) is a “jurisdictional element”, in that the purpose of its inclusion is only to bring the provision within Commonwealth legislative power. It is no doubt usually (although possibly not always) the case that an element included only to attract Commonwealth legislative power will be characterised as one of circumstance. For example, in the offence of interference with telecommunications facilities under s 474.6 of the Criminal Code, the fact that the relevant facility is owned by an entity engaged in telecommunications activity is described as a physical element of circumstance. However, here, the element of circumstance that attracts Commonwealth power is that the obtaining or accessing of material happened by way of a carriage service. That tells us nothing about whether the obtaining or accessing itself is to be regarded as an element of conduct or circumstance.
The analysis of s 474.22A that we prefer is consistent with the view expressed in Allison at [40]–[41]. Although that view does not form part of the ratio of the case, the point was evidently the subject of argument and the conclusion reached by the Court should therefore not be lightly departed from. The same view, however, was recently endorsed in R v Delzotto [2022] NSWCCA 117 at [60]–[66] and does appear to have been a necessary step in the reasoning in that case. We would only depart from that reasoning if persuaded that it was clearly wrong.
For these reasons, the analysis of s 474.22A propounded by the Crown is to be preferred. The “conduct” element of the offence is the possession or control of the relevant material. Further, possession of the material at any time is sufficient: there is no stipulation that the material needs to have been in the possession of the accused for any particular period. For the offence to be made out, it was sufficient for the Crown to prove (or for the offender to admit) that the offender possessed the material on 29 July 2020 as alleged in the indictment, so long as the elements of circumstance (going to the nature of the material, and the means by which it had been obtained) were also proved or admitted. The “relevant conduct” for the purposes of item 3(2) (ie, the acts or omissions sufficient to constitute the conduct element of the offence) was thus “engaged in” on 29 July 2020, after the relevant commencement date. This is the case notwithstanding that some of the same conduct, involving most of the same material, had also been engaged in before that date.
The result is that s 16AAB applied to the conviction for the possession offence, so as to require the court to impose a head sentence of at least four years imprisonment (subject to the possible effect of s 16AAC).
Manifestly excessive or manifestly inadequate
The conclusions we have reached above mean that the primary Judge erred in principle. The offender will need to be re-sentenced on the basis that (contrary to his Honour’s approach) the minimum sentence set out in s 16AAB is applicable to the conviction on the possession charge as a whole. Its effect is not mitigated or adjusted as a result of the fact that most of the relevant child abuse material had been downloaded before s 16AAB came into effect. Neither party sought to have the matter remitted to a single Judge for re-sentencing and it is appropriate that this Court should determine the appropriate sentence.
Even though separate sentences were pronounced for the three offences, his Honour plainly (and appropriately) considered them as aspects of a single sentencing exercise. Regard had to be had to the issue of totality and (relatedly) the extent to which the three sentences should be concurrent; and a single nonparole period was determined. Thus, the error that we have identified infected the whole exercise. It will be necessary for the offender to be re-sentenced for all three offences.
This makes it unnecessary, and somewhat artificial, to give detailed consideration to whether the sentences imposed were manifestly excessive (as the offender contended) or manifestly inadequate (as the Crown contended). We simply note that, while there is some force in the criticisms made of the sentences from both directions, we do not think the case reaches the threshold for appellate intervention identified in R v Pham [2015] HCA 39; 256 CLR 550, [28(7)] (French CJ, Keane and Nettle JJ):
having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
We have, however, considered the various criticisms made in the parties’ submissions in coming to our view as to what sentences should be imposed.
Re-exercise of discretion
Objective seriousness
We agree with the primary Judge’s analysis of the objective seriousness of the offending, including the conclusions expressed at [30]–[32] (which we have summarised above). In the light of our conclusions on the Crown’s issue 1 above, we do not downgrade the seriousness of the possession offence in the way that his Honour did at [107]. We also agree with his Honour’s analysis of the offender’s subjective circumstances at [33]–[44].
Noting the minimum sentence of four years for the possession offence and the maximum of 15 years, and taking into account the volume and nature of the material in the possession of the offender, we would adopt a starting point of six years rather than five (cf the primary Judge at [120]). Like his Honour, we would be inclined to apply a 25 per cent discount for the plea of guilty.
Applied to a six year starting point, that discount does not reduce the sentence below the statutory minimum of four years. We read the expression “reduce a sentence” in s 16AAC(3) as referring to reducing a sentence below the applicable minimum sentence pursuant to s 16AA(2) (since, normally, taking into account a guilty plea is part of the synthesis required under s 16A(1) and (2) rather than a distinct statutory process of reducing a sentence). On that reading, the limit that s 16AAC(3)(a) imposes on the extent of the reduction is not engaged here.
We would not disturb the head sentences for the transmission and access offences which the primary Judge determined at [122]–[123], but we approach the issue of cumulation differently. As noted by his Honour, the 104 photographs involved in the access charge were a subset of the material involved in the possession charge. His Honour considered that a degree of cumulation was appropriate because of “the limited way in which the 104 photographs are to be taken into account in assessing the objective gravity of the possession charge”. That premise reflects reasoning which, as explained above, we regard as erroneous. We would therefore make the sentences for the possession and access charges almost wholly concurrent. His Honour appears to have relied on the same reasoning in relation to the transmission charge. Again, we prefer a larger overlap on the basis that the material involved in the transmission offence overlaps to a large extent with the material involved in the possession offence (which has been fully taken into account in assessing the objective seriousness of that offence).
We agree with the primary Judge’s reasons for setting a relatively short nonparole period (at [126]) and will follow the same course, taking into account the longer aggregate head sentence that we have arrived at.
The orders of the Court will be:
(1)The appeal in ACTCA 50 of 2021 is allowed.
(2)The appeal in ACTCA 48 of 2021 is dismissed.
(3)Orders 3, 4, 5 and 6 made on 16 September 2021 are set aside and in lieu thereof the following orders are made:
(a)On the charge of possession of child abuse material contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CC2020/9077), the offender is convicted and sentenced to imprisonment for four years and six months, from 1 March 2021 to 31 August 2025.
(b)On the charge of access of child abuse material contrary to s 474.22(1)(a)(i) of the Criminal Code 1995 (Cth) (CC2020/9078), the offender is convicted and sentenced to imprisonment for one year and three months, from 1 July 2024 to 30 September 2025.
(c)On the charge of transmission of child abuse material contrary to s 474.22(1)(a)(ii) of the Criminal Code 1995 (Cth) (CC2021/1079), the offender is convicted and sentenced to imprisonment for 15 months from 1 August 2024 to 31 October 2025.
(d)The nonparole period in relation to the Commonwealth offences starts on 1 March 2021 and ends on 30 April 2023.
| I certify that the preceding two hundred and two [202] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: |
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Amendments
| 28 March 2023 | Replace [53]-[58] with [53]-[56] | Paragraph: [17] |
| Replace [28] with [28]-[30] | Paragraph: [90] | |
| Replace [10] with [121] | Paragraph: [130] | |
| Replace [23] with [134] | Paragraph: [144(d)] | |
| Replace [3] with [114] | Paragraph: [158] | |
| Amend typographical citation errors | Paragraphs: [18], [49], [57], [58], [83], [132], [137], [141] and coversheet |
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