R v Hurt (No 2)

Case [2021] ACTSC 241


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hurt (No 2)

Citation:

[2021] ACTSC 241

Hearing Dates:

25 June 2021 and 2 September 2021

DecisionDate:

16 September 2021

Before:

Mossop J

Decision:

See [127]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – Commonwealth and Territory offences – breach of Territory good behaviour order and Commonwealth recognizance order – good behaviour order imposed for Territory possession of child exploitation material offence – resentenced – suspended portion of the sentence imposed – recognizance order imposed for Commonwealth distribution of child pornography offence – resentenced – no action taken on breach – further Commonwealth offences of possessing, accessing and transmitting child abuse material – terms of imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – where Commonwealth mandatory minimum sentencing regime applies in relation to possession offence – application of mandatory minimum penalties where some of the material subject to the possession offence was accessed or obtained prior to regime coming into effect – general approach to the application of the Commonwealth mandatory minimum sentence regime for child sex offences

Legislation Cited:

Combating Child Sexual Exploitation Legislation Amendment Act 2019 (Cth)

Crimes Act 1900 (ACT), s 65
Crimes Act 1914 (Cth), ss 3, 4F, 16, 16A, 16AAA, 16AAB, 16AAC, 19, 20A(5)(b)(iii)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), schedule 6, part 1, item 3
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Crimes (Sentencing) Act 2005 (ACT), s 65
Criminal Code 1995 (Cth), ss 4.1 473.1, 474.19 (repealed), 474.22A, 474.22

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

Cases Cited:

Atherden v The State of Western Australia [2010] WASCA 33

Bahar v The Queen [2011] WASCA 249; 45 WAR 100
Bayu v The Queen [2013] HCATrans 144
CDPP v Munn [2021] VCC 1038
DPP v Lunson [2021] VCC 1051
Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268
Dui Kol v R [2015] NSWCCA 150
Magaming v The Queen [2013] HCA 40; 252 CLR 381
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Delzotto [2021] NSWDC 325
R v Home Secretary; Ex parte Simms [2000] 2 AC 115
R v Karabi [2012] QCA 47; 220 A Crim R 338
R v Large [2021] NSWDC 429
R v Latif; ex parte Cth DPP [2012] QCA 278
R v Nitu [2012] QCA 224; [2013] 1 Qd R 459

R v Pot (Unreported, Northern Territory Supreme Court, Riley CJ, 18 January 2011)

Parties:

The Queen ( Crown)

Raymond Hurt ( Offender)

Representation:

Counsel

D Berents ( Crown)

G Meikle (25 June 2021) and J White SC (2 September 2021) ( Offender)

Solicitors

Commonwealth Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Offender)

File Numbers:

SCC 61 of 2019

SCC 55 of 2021

MOSSOP J:

Introduction

  1. The offender, Raymond Hurt, was sentenced by me on 6 June 2019 for the…

Continue reading R v Hurt (No 2)

Sign in free to access the full text

Details
AGLC
R v Hurt (No 2) [2021] ACTSC 241
Case
[2021] ACTSC 241
Decision Date

CaseChat Overview and Summary

The appeal in R v Hurt (No 2) was heard by the Supreme Court of the Australian Capital Territory, where the defendant, Hurt, sought to appeal against his sentence. Hurt had previously been convicted of possession of child exploitation material under the laws of the Australian Capital Territory, for which he received a good behaviour order. Subsequently, he was convicted under the Commonwealth Criminal Code for distributing child pornography and possessing, accessing, and transmitting child abuse material. He was given a recognizance order for the distribution offence and a sentence of imprisonment for the possession, access, and transmittal offences. Hurt breached his good behaviour order and recognizance order, leading to his resentencing. The court was required to determine the appropriate sentences for the breach of the good behaviour order and recognizance order, and the applicability of the mandatory minimum sentencing regime for the possession offence.

The court examined the legal issues concerning the breach of the good behaviour order and recognizance order, and the applicability of the mandatory minimum sentencing regime. It was necessary to consider the principles of resentencing in the context of breach of orders, and whether the mandatory minimum sentencing regime should apply to the possession offence where some of the material was accessed prior to the regime's commencement. The court assessed the principles of sentencing, proportionality, and the objectives of punishment, taking into account the defendant's history, rehabilitation prospects, and the seriousness of the offences.

The court determined that the defendant's breach of the good behaviour order warranted resentencing, and the suspended portion of the original sentence was activated. Regarding the recognizance order, the court found that no action was necessary as the defendant had not breached the conditions. Concerning the mandatory minimum sentencing regime, the court held that it applied to the possession offence, despite some material being accessed prior to the regime's commencement. The court considered the seriousness of the offences, the defendant's history, and the principles of sentencing, ultimately imposing a term of imprisonment.

The court made orders for the defendant's imprisonment, taking into account the breach of the good behaviour order and the application of the mandatory minimum sentencing regime for the possession offence. The court also considered the defendant's rehabilitation prospects and the need for deterrence and denunciation in its sentencing decision.

Orders

Orders of the court

See [127]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.