R v Hurt (No 2)
[2021] ACTSC 241
•16 September 2021
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 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 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
The offender, Raymond Hurt, was sentenced by me on 6 June 2019 for the following two offences.
(a)For the offence of possessing child exploitation material (contrary to s 65 of the Crimes Act 1900 (ACT)), he was given a sentence of 15 months’ imprisonment, which was suspended after having served eight months’ imprisonment upon entry into a good behaviour order for a period of 18 months (the 2019 Territory sentence). The 18-month period ran from 5 February 2020 to 4 August 2021.
(b)For the offence of using a carriage service for distribution of child pornography material (contrary to s 474.19 of the Criminal Code 1995 (Cth)) he was required to enter a recognizance to be of good behaviour for a period of two years with security in the sum of $1000 (the 2019 Commonwealth sentence).
Unfortunately, the offender committed further offences during the operation of the good behaviour order and the recognizance. He was also in breach of the good behaviour order as a result of failing to comply with directions that he had been given under his good behaviour order.
As a result of information received by the Australian Federal Police about the uploading or transmission of suspected child abuse material through the Snapchat application, police conducted a search of the offender’s residence in Hawker on 29 July 2020. They conducted a recorded conversation with him in which he made various admissions and they found child abuse material on his phone. He was arrested and his phone seized. It was subsequently forensically analysed so as to identify child abuse material within the meaning of s 473.1 of the Criminal Code. Two relevant applications were found either installed or previously installed on the phone. They were the Kik messenger application and the MEGA cloud storage application. Child abuse material was identified. It is this material which has led to three new charges:
(a)transmission of child abuse material contrary to 474.22(1)(a)(ii) of the Criminal Code (maximum penalty 15 years);
(b)access of child abuse material contrary to s 474.22(1)(a)(i) of the Criminal Code (maximum penalty 15 years); and
(c)possession of child abuse material contrary s 474.22A(1) of the Criminal Code (maximum penalty 15 years).
He has pleaded guilty to those charges in a Magistrates Court and was committed to the Supreme Court for sentence.
Chronology of breach and further offending
The offender breached the good behaviour order imposed in relation to the 2019 Territory Sentence by failing to comply with directions of the Director-General as well as by committing further offences. He breached the recognizance imposed on the 2019 Commonwealth Sentence by his further offending.
As a condition of the good behaviour order entered into in relation to the 2019 Territory sentence, the offender was required to attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed. He was directed to attend the ACT Corrective Services’ Sex Offender Treatment Program (SOTP). He was also directed to organise counselling with Everyman Men’s Accommodation and Support Services.
On 27 May 2020 the offender was exited from the SOTP for failing to meet attendance requirements. He failed to attend a scheduled SOTP session on 12 March 2020. On 23 March 2020 he attended a SOTP session and provided medical certificates stating that he was “unfit for work” from 12-17 March and 19-21 March 2020. He received a verbal warning that if he continued to not attend the SOTP then he may be exited from the program and his good behaviour order returned to court.
The offender was excused from the following SOTP session as he advised that he had “flu‑like symptoms”, although he failed to provide ACT Corrective Services with medical documentation of this by 1 April, as directed. On 2 April 2020 he provided Corrective Services with a medical certificate stating that he was “unfit for work” from 30 March‑1 April 2020.
He failed to attend SOTP sessions on 7 April, 9 April, 30 April and 4 May 2020. On 11 May 2020 he attended an SOTP session and received a formal written direction not to exit or cause himself to be exited from the ACT Corrective Services SOTP. He signed the direction and confirmed that he understood the consequences of failing to comply with the direction. He then failed to attend SOTP sessions on 14 May, 18 May, 21 May and 25 May 2020. He also failed to report for a supervision appointment on 25 May and failed to notify of his inability to do so. After the offender was exited from the program, he sent ACT Corrective Services email correspondence including a medical certificate stating that he was unfit for work from 18-27 May 2020.
In relation to the Everyman counselling service, an employee of the service indicated that Everyman had attempted to contact the offender on 16 April 2020 to schedule a counselling appointment but that he did not return the call. On 28 May 2020 a case manager at Everyman stated that the offender had very limited engagement with the service and no successful weekly check ins. The case manager confirmed that the offender had not contacted the service since 29 May 2019.
The forensic analysis of the offender’s phone (which was seized by police on 29 July 2020) showed that between 26 and 31 May 2020 the offender had downloaded a number of files from various websites onto his mobile phone. The child abuse material downloaded was 357 images and seven videos from 20 different websites. This gives rise to the contravention of s 474.22(1)(a)(ii) of the Criminal Code causing child abuse material to be transmitted to himself.
The forensic analysis of the offender’s mobile phone showed that another 104 images which were stored in a directory entitled “Album” on the SD card of his phone had been accessed on 4 and 5 June 2020. The Agreed Statement of Facts (paragraph 22) sets out filenames for 11 of the files which are clearly indicative of the files being child abuse material. The accessing of the 104 images gives rise to the contravention of s 474.22(1)(a)(i) of the Criminal Code, using a carriage service to access child abuse material. Accessing the child abuse material involves using a carriage service to connect to the relevant server or platform where the child abuse image or video is located and can be directly viewed by the offender.
The charge of possessing child abuse material contrary to s 474.22A(1) of the Criminal Code arises from the material that was located on the phone that was possessed by the offender at the time of the execution of the search warrant at his house. The phone had a 64 GB microSD card installed within it and on that SD card were 129 images (the 104 images in a directory titled “Album” the subject of the accessing charge and another 25 in a directory titled “Other”) and 48 videos identified as child abuse material. Stored on the mobile phone itself were a further 357 images identified as child abuse material (the subject of the transmitting offence).
The different offences and the material the subject of those offences may be summarised as follows:
Date Offence Material 26-31 May 2020 Transmission 357 photos
7 videos
4-5 June 2020 Access 104 photos 29 July 2020 Possession 104 photos (same as above)
25 photos (new)
357 photos (same as above)
48 videos (new)
The parties agreed that:
(a)the 25 photos possessed on 29 July 2020 were all obtained or accessed on or after 23 June 2020; and
(b)the 48 videos possessed on 29 July 2020 were all obtained or accessed prior to 23 June 2020.
Necessarily, by reason of the dates of the transmission and access offences, the 104 photographs and 357 photographs that were the subject of both those offences and the possession offence were obtained or accessed prior to 23 June 2020.
The date of 23 June 2020 is of significance because it is the date upon which certain legislative amendments referred to later in these reasons took effect.
In summary, it was uncontroversial that the only material the subject of the possession offence that was obtained on or after 23 June 2020 was the 25 photographs.
On 29 July 2020, the offender was charged with the three further offences. He has remained in custody since that date.
He was first before the court on the 8 August 2020 in relation to the breach of the supervision requirements under the 2019 Territory sentence. On that occasion the proceedings were adjourned because of the pending further charges.
He pleaded guilty to the three new offences on 4 March 2021.
Sentencing submissions were made on 25 June 2021. At the request of the offender, directions were made relating to the filing of further submissions and the matter was listed for further argument on 2 September 2021. Further submissions were made on that date. Subsequent to that hearing, the Crown filed an application seeking to have a case stated to the Court of Appeal. That application was heard on 16 September 2021. I declined to do so because, having regard to the prospects of one or other of the parties appealing from my sentence, I considered that it was more efficient to decide the matter and let any appeals run their course, rather than further delay the finalisation of the sentence.
Statutory provisions
As at the dates of the transmission (26-31 May 2020) and access offences (4-5 June 2020), the Criminal Code provided:
474.22Using a carriage service for child abuse material
(1) A person commits an offence if:
(a)the person:
(i)accesses material; or
(ii)causes material to be transmitted to himself or herself; or
(iii)transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv)solicits material; and
(aa)the person does so using a carriage service; and
(b)the material is child abuse material.
Penalty:Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a)intention is the fault element for the conduct referred to in paragraph (1)(a);
(b)recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note:For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note:For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
The term “access” was defined in s 473.1 of the Criminal Code to include the displaying of material by a computer and the copying or moving of the material to any place in a computer or data storage device.
As at the date of the possession offence (29 July 2020), s 474.22A of the Criminal Code provided:
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.
Objective gravity
The nature of the child abuse material possessed is described in the Agreed Statement of Facts as follows:
25. A review of the [child abuse material] showed that the children depicted in the images and videos were between the ages of 3 and 12 years.
26. The images and videos generally depicted a focus on the genitalia of the children, forced anal and oral rape of prepubescent female children by adult males, children engaged in sexual acts with animals and children subjected to abuse by being bound and gagged.
27. 71% of the material depicted children under the age of 10, the majority of which depicted prepubescent female children between the ages of 3 and 8 years who were subject to oral, vaginal and anal penetrative rape by adult males.
28. The material contained no less than 100 separate child victims.
There are further descriptions of the acts depicted in the images or videos at paragraphs [8], [9] and [22] of the Agreed Statement of Facts. During the course of the sentencing hearing, I viewed a selection of images or screenshots from the videos and they were consistent with the description set out above.
There was no separate description of the 25 photographs that were involved in the possession offence. I was not asked to separately view those 25 photographs. I have proceeded on the basis that those photographs were consistent with the nature of the material described at [26] above.
The following matters are relevant to an assessment of the objective seriousness of the possession charge:
(a)The nature and content of the material and the gravity of the sexual activity depicted is as described above.
(b)The number of items or images possessed is significant, although obviously there are cases with much larger volumes of material. I accept the submission by the Crown that the content of the material and its degree of depravity is a more important focus than the volume.
(c)It is significant in this case that the material overall discloses more than 100 separate children involved in sexual acts.
(d)There is no evidence that the material was possessed for the purposes of sale, further distribution or that the offender would profit in any way from the possession of the material.
(e)The length of time which the material was possessed is not fully disclosed by the Agreed Statement of Facts. There is no evidence that it was possessed for any longer than from 26 May 2020. It is clear from the agreed facts and the admissions made by the offender that the possession of the material was not a result of a spontaneous or short-term impulse. Rather, the facts disclose the use of multiple platforms to obtain the material, the downloading of a program to access it and the creation of an account within that program to permit the downloading to occur.
(f)The offences were committed while the offender was subject to a good behaviour order and a recognizance requiring good behaviour. That he was on such conditional liberty is an aggravating factor. It is also more serious when one considers that he was also subject to supervision at the time and must have been acutely aware of the conditional nature of his liberty arising from previous similar offending.
Having regard to these matters, I would assess the possession charge as being in the mid‑range of objective seriousness for this offence although, as will become apparent, there are complexities arising from the change in the sentencing regime that took effect on 23 June 2020 (see below at [106]).
The transmission charge relates to a subset of the material which is the subject of the possession charge. The 357 photographs are the subject of the possession charge, but the seven videos are different from the 48 videos the subject of the possession charge. Given the lesser volume, it is less serious. However, having regard to the other matters referred to above, I would still characterise it as being in the mid-range of objective seriousness.
The access charge relates to a subset of the material which is the subject of the possession charge, being only the 104 photographs. When the factors referred to above are taken into account, I would also place it in the mid-range of objective seriousness, although at the lower end of that range.
Subjective circumstances
The subjective circumstances of the offender are principally disclosed by a pre-sentence report dated 21 June 2021. In some respects, the facts so disclosed differ from the facts that I found for the purposes of sentencing the offender on the last occasion. Those differences are relatively minor. Where there is a conflict, I have based my findings on the material that was before me on this occasion.
The offender is 34 years old. He was 33 years old at the time of the offending conduct. He was born in South Korea and was adopted at the age of four months by an Australian couple. There were two other children in the family. There were some problems at home when he was younger due to arguments over family rules. He moved out of home at the age of 16. His mother is deceased, having died of breast cancer. His relationship with his father and two siblings is strained as a result of his offending conduct.
He has three daughters from a previous relationship, aged 11, 9 and 7 years old. He continues to have some telephone contact with his children.
At the time of his arrest on the current charges, he was living in accommodation provided through the Everyman organisation.
He completed Year 11 at school. Prior to his arrest, he was last employed in April 2020. The evidence is not sufficient to establish whether he lost that job due to COVID-19 or as a result of poor attendance.
He has a past history of alcohol abuse, which he reported ceasing at the age of 20 years old. He has been a user of cannabis. He has also used methylamphetamine but the evidence as to the extent of his use is conflicting.
He has a tendency to isolate himself. He suffers from depression and anxiety. He has not taken up opportunities for counselling or psychiatric treatment.
In relation to his attitude to the offending, the author of the pre-sentence report referred to his lack of acceptance of a link between his viewing of the material and any increase in demand for its production. The author reported that he showed little insight into the offending behaviour, recognising that the offending was wrong only because of its illegality, rather than because of its impact upon the children involved.
In a letter to the court (exhibit 3) the offender recorded that at the time of being interviewed for the pre-sentence report his mental health was in a low state and he was unable to fully articulate his views. The letter articulated a greater understanding of the effects of the production of child exploitation material. He explained that he found that much of the material in the SOTP to be focused upon direct contact between offenders and their victims, an area where he has had no legal problems or issues. He said that at the time of the offending he was experiencing suicidal ideation and was under the influence of alcohol and drugs. He had lost his job and his relationship with his family, was in financial difficulty and found the reporting requirements of the child sex offenders register “extremely overwhelming and demoralising”. He said he “felt hopeless and useless in society”. He said he had “an addiction to pornographic and sexually related material” which contributed to his offending to some degree.
The author of the pre-sentence report assessed him as being at a medium to high risk of general reoffending. His risk factors include lack of accommodation, unemployment, alcohol and illicit substance use, mental health and poor attitudes towards his offending behaviour. He is identified as having few protective factors due to minimal pro social supports. The author identified that the offender claimed that the threat of a custodial term would deter him from further offending. The author assessed the identified means of avoiding further offending as being “unrealistic and ineffective”.
Obviously, the opinion of the pre-sentence report author concerning the offender’s lack of insight into his offending conduct and the attitude reflected in the letter to the court are starkly different. I treat the evidence in the letter with considerable caution as it was not given on oath or affirmation as it might have been, and hence, it was unable to be tested. While it expresses appropriate understanding of the nature and impact of his offending, it is not possible to be confident that the statements truly reflect the offender’s views or indicate that the possibility of rehabilitation is anything other than guarded.
Overall, I accept the opinion of the author of the pre-sentence report that the offender is of a medium to high risk of general reoffending. The factors identified in the pre-sentence report as well as the history of reoffending mean that this characterisation is appropriate.
Requirements of mandatory minimum sentencing regime
Statutory provisions
From 23 June 2020, the relevant provisions of the Crimes Act 1914 (Cth) were 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—that fact;
(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;
(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.
(2A) …
(2AA) …
(2B) …
(3) Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.
(4) For the purposes of a reference in this Part to a family, the members of a person’s family are taken to include the following (without limitation):
(a)a de facto partner of the person;
(b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 3;
(c)anyone else who would be a member of the person’s family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family.
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
[Items in table deleted.]
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
… 24A offence against subsection 474.22A(1) of the Criminal Code 4 years … 16AACExclusions and reductions—minimum penalties
People aged under 18
(1) Section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
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 subsection 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.
The mandatory minimum sentence regime was introduced as a result of amendments made by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (the 2020 Amending Act). That Act was assented to on 22 June 2020 and the relevant parts of that Act which provided for a regime of minimum sentences came into effect on 23 June 2020. Those amendments included the insertion of ss 16 AAA-16AAC.
Within schedule 6 of the 2020 Amending Act which made the relevant amendments was item 3 which provided:
3 Application 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).
Section 4F of the Crimes Act is a generally applicable provision dealing with increases in maximum penalties. It provides:
4FEffect of alterations in penalties
(1)Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.
(2)Where a provision of a law of the Commonwealth reduces the penalty or maximum penalty for an offence, the penalty or maximum penalty as reduced extends to offences committed before the commencement of that provision, but the reduction does not affect any penalty imposed before that commencement.
Areas of contention
There were two areas of contention between the parties as to the operation of these provisions:
(a)First, whether reasoning similar to that in Bahar v The Queen [2011] WASCA 249; 45 WAR 100 (Bahar) should be applied in relation to the mandatory minimum sentencing regime for the possession offence or whether an approach more consistent with the obiter remarks of Adams and McCallum JJ in DuiKol v R [2015] NSWCA 150 (Kol) should be adopted.
(b)Second, whether the amended maximum penalty could apply in relation to all of the material the subject of the possession offence, in circumstances where some of that material was accessed prior to the date when the amended penalty regime came into effect. This depended upon the interpretation of the offence provision and the operation of the transitional provisions relating to the amendments.
First issue - effect of minimum term provisions
The operation of a Commonwealth mandatory minimum sentencing regime was explained in Bahar. That was a case which involved a mandatory minimum sentence for people smuggling contrary to s 232A of the Migration Act 1958 (Cth). Section 233C provided mandatory minimum sentences and mandatory minimum non-parole periods for persons who were 18 years or over. The mandatory minimums varied depending upon whether the person was a first offender or a repeat offender. McClure P (with whom Martin CJ and Mazza J agreed) explained that both the statutory maximum and statutory minimum penalty must be taken into account in determining the appropriate penalty. Her Honour said (at [46], [48]-[49]):
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.
…
The High Court in Markarian v The Queen (2005) 228 CLR 357 referred to the role and relevance of maximum statutory penalties. 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.
Prima facie, that statement is equally applicable to minimum statutory penalties: see also Muldrock v The Queen (2011) 244 CLR 120 at [26]-[31].
Her Honour then went on (at [53]-[54]) to deal with the specific issues of statutory construction that arose from the existence of the mandatory minimum penalty:
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.
Her Honour recognised that mandatory minimum terms may create complications for reductions in sentences for mitigatory factors. She referred to the judgment of Wheeler JA in Atherden v The State of Western Australia [2010] WASCA 33 at [43] in which her Honour said:
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.
The explanation given by McClure P involved a rejection of the approach that had been adopted by Riley CJ in R v Pot (Unreported, Northern Territory Supreme Court, 18 January 2011) (Pot) which characterised the mandatory minimum penalty as something which was only to be applied at the end of the sentencing process if, having determined the appropriate sentence without regard to the mandatory minimum, the sentence that would have otherwise been imposed was less than that minimum.
The decision in Bahar was followed by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; 220 A Crim R 338, R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 and R v Latif; ex parte Cth DPP [2012] QCA 278.
It was in that context that a five-judge bench of the New South Wales Court of Criminal Appeal considered both the issue of statutory interpretation and the constitutionality of a regime of mandatory minimum sentences. In Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268 (Karim) the court followed the approach set out in Bahar and rejected a constitutional challenge to mandatory minimum sentencing. The judgment of Allsop P did not merely involve following Bahar and the decisions of the Queensland Court of Appeal which had followed that approach because those decisions were not plainly wrong. His Honour’s reasons incorporate a positive endorsement of it (at [44]):
In my view, no argument was put that undermined or threw into sufficient doubt the reasoning of McClure P on what is, essentially, a question of statutory construction. … The most, in my view, that can be said here is that the view of Riley CJ [in Pot] … is one that is open and, with respect, arguable. Nevertheless, its arguability does not convince me of any error in the approach taken in four intermediate Court of Appeal decisions in two States of the Commonwealth on a matter of statutory interpretation …
One of the cases considered as part of the decision in Karim was that of Mr Magaming. He appealed to the High Court in relation to the constitutionality of the mandatory minimum sentence regime. That challenge was unsuccessful: Magaming v The Queen [2013] HCA 40; 252 CLR 381 (Magaming).
On the same day that Magaming was granted special leave, another of the cases that the New South Wales Court of Criminal Appeal had considered in Karim was refused special leave: see Bayu v The Queen [2013] HCATrans 144. That application for special leave sought to raise the statutory interpretation point. The issue that was put to the court was a contest between the Bahar approach and the Pot approach. The brief reasons for refusing a grant of special leave included:
The essential question it raises is whether the construction of the provisions adopted by the Court of Appeal of the Supreme Court of Western Australia in Bahar and Ors v The Queen[2011] WASCA 249, which was applied by the Court of Appeal of the Supreme Court of New South Wales in this case and has been consistently applied by the Court of Appeal of the Supreme Court of Queensland, is correct. The decision of the New South Wales Court of Appeal and the decision upon which it rests go to a question of statutory interpretation. It is not attended with sufficient doubt, in our opinion, to warrant the grant of special leave. Special leave will be refused.
The result of this series of cases was to leave Bahar as authoritative in relation to the operation of the mandatory sentencing provisions of the Migration Act.
In Kol, a sentence appeal relating to people smuggling under s 233C of the Migration Act, the New South Wales Court of Criminal Appeal followed the approach in Bahar, as it was bound to do. However, Adams J (with whom McCallum J agreed) made obiter dicta comments challenging the rationale of Bahar in that case. The fundamental point made by Adams J was that the language of the provision (s 233C of the Migration Act) did not require treating the mandatory minimum as reserved for the least serious category of case: at [12]. The Bahar interpretation “artificially distorts the sentences upwards”: at [13]. His Honour said that 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: at [13]. His Honour identified that the advantage of the Pot interpretation was the one which did “least violence the fundamental principles of criminal justice”: at [14]. Finally, his Honour made reference to the additional reason given by Allsop P in Karim at [45] that “equal justice” favoured the Bahar interpretation. Adams J pointed out that the principle of parity has never justified an increase of a comparative sentence but only a decrease: at [16].
The concern expressed by Adams J was that the Bahar approach has the effect of increasing all sentences across the range of seriousness and not just those that would otherwise have fallen below the statutory minimum. The contention of Adams J appears to be that the language of the section was such that it did not compel the interpretation in Bahar and, having regard to the nature of the legislation, it should not be interpreted so as to increase sentences across the range of gravity unless that was compelled by the language of the provision, which, in his Honour’s opinion, it was not.
Notwithstanding the persuasive force of the dicta of Adams J in Kol, the decision does not alter the authority of the earlier decision of Bahar or the decisions of other intermediate Court of Appeal which followed it.
Since the new sentencing regime has come into effect, its operation has been considered in a number of sentencing decisions.
The first was R v Delzotto [2021] NSWDC 325 (Delzotto). In that case, Grant DCJ distinguished the legislation considered in Bahar. His Honour said that the legislation did not provide that the statutory minimum sentences created a predetermined base point from which sentences are to be imposed or that the minimum sentence was to apply only in cases falling at the lowest end of the spectrum of seriousness.
The approach in Delzotto was followed in R v Large [2021] NSWDC 429 at [46].
In DPP v Lunson [2021] VCC 1051 Judge Lacava adopted the approach in Bahar at [25].
In CDPP v Munn [2021] VCC 1038 Judge Tinney accepted an approach consistent with Bahar. However, his Honour did not accept that the reductions in s 16AAC(2) of the Crimes Act were reserved only for the least serious instance of the offence: at [66].
Contrary to the position that appears to have been adopted in some earlier cases, the Crown, in this case, did not contend that the reductions allowed by s 16AAC(2) and (3) of the Crimes Act only applied if the penalty imposed is the minimum penalty permitted. That was a proposition stated in the explanatory memorandum but does not fit with the operation of the provisions.
Summary of contentions
The respective contentions can be summarised as follows:
The Bahar approach
The Crown treats the setting of a minimum term of imprisonment as providing a guidepost in the same way that a maximum penalty provides a guidepost. The sentencing exercise therefore operates within the legislative guideposts. That means that subject to s 16AAC(2)-(3) of the Crimes Act, the instinctive synthesis must reach a result within the guideposts.
In dealing with the matter in this way, considerable work must be done by the court’s conception of the inherent nature of a maximum or minimum penalty. It is accepted that a maximum penalty provides a guidepost within which the appropriate sentence must be determined, rather than merely an arbitrary cut-off of the maximum penalty which may be imposed. The Crown says that by enacting a minimum penalty the legislature has engaged in the same exercise. That is the conclusion which was reached in Bahar. It requires considerable weight to be placed upon the inherent nature of maximum and minimum sentences because the words used by the legislature do not expressly state that this is to be the consequence of the specification of a minimum sentence.
In support of this interpretation is the fact that these sentencing provisions have been incorporated into the core provisions of the Crimes Act in relation to sentencing. According to this submission, the legislature must be taken to have understood that the provisions of ss 16AAA-16AAC would need to be read with s 16A of the Crimes Act so as to create a coherent whole, rather than having the mandatory minimum sentence provisions be read in a manner which was not consistent with the unqualified terms of s 16A.
The alternative approach
The alternative approach is reflected in the decision in Pot, the obiter dicta remarks of Adams and McCallum JJ in Kol and the decision in Delzotto. That approach focuses on the language of the section and the absence of any language which expressly states that minimum sentences are to be applied in cases in the least culpable category of seriousness. It focuses on the language of the section which provides that a court must impose a sentence of imprisonment “of at least” the specified period. It draws the distinction between the approach taken to a maximum sentence and a minimum sentence and rejects the need for symmetry of approach. It emphasises that 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. In those circumstances it says that it is wrong to erect unnecessary jurisprudence upon what is essentially a simple arbitrary intervention in the sentencing process. Such an interpretation involves minimising the intrusion upon the principle of individualised justice and emphasising that offenders are not to be sentenced by the legislature, but by the courts.
The argument contends that the remarks made by members of the High Court in Magaming at [48] and [105] about mandatory minimum penalties operating as legislative yardsticks arose in a different context and did not involve determining the issue in question. Finally, the argument rejects the independent reason put forward by Allsop P in Karim at [45] because to allow that principle to affect the interpretation of the section would be to avoid the problem of unequal outcomes by unjustly increasing the harshness of penalties.
This approach sees the incorporation of the mandatory minimum sentence provisions within the Crimes Act and close to s 16A as not detracting from the argument. That is because s 16AAB should be read as far as possible consistently and harmoniously with the requirement under s 16A to impose a sentence that is of severity “appropriate to all the circumstances”, rather than by reference to proportionate increases in sentence from a minimum term.
This approach is supported by the principle of legality, insofar as that principle requires the legislature to make sufficiently clear its intention to encroach upon, inter alia, personal freedoms, and hence be politically accountable for that encroachment. Thus, where the language of a statutory provision is not sufficiently clear, it should not be interpreted in a way that increases the gravity of criminal penalties imposed.
Decision
I am not satisfied that the approach identified in Bahar is correct but consider I am obliged to follow it. That rather unsatisfying position is reached for the following reasons.
First, the words used by the legislature do not make it express that the minimum and maximum sentences reflect a range within which proportionate sentences must be set. The language itself leaves open an alternative interpretation that the minimum is a floor on the sentence that may be imposed, but not a floor that is only applicable in a case warranting the most lenient sentence and hence requiring other sentences to fit proportionately within the range of sentences up to the maximum penalty.
Section 16AAA of the Crimes Act provides that “the court must impose a sentence of imprisonment of at least the period”. The use of this expression does not suggest that the specified minimum is indicative of the bottom end of a range. The legislative command is that the sentence must be at least of a particular length. It is more consistent with a minimalist command, rather than the establishment of a range within which a proportionate sentence must be set. The language of s 16AAB of the Crimes Act is similar.
Second, notwithstanding that the mandatory minimum sentence provisions have been inserted within the core sentencing provisions of the Crimes Act, s 16A is not made expressly subject to the mandatory minimum sentence provisions of ss 16AAA and 16AAB. Thus, 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.
Third, in substance, the approach adopted in Bahar is that it is inherent in the nature of a minimum penalty that it identifies the sentence to be imposed in a case warranting the most lenient sentence, rather than an arbitrarily fixed minimum to be applied after the determination of what would otherwise be the appropriate sentence. 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. At the core of the reasoning was the conclusory statement that “the seriousness of an offence is to be determined by taking into account both the statutory maximum penalty as well as any statutory minimum penalty.” As to the statutory minimum penalty the judgment says (at [46]): “However, a statutory minimum penalty, like a statutory maximum, is a legislative direction as to the seriousness of the offence.” There is then reference to statutory minimum penalties in Western Australia such as those provided for wilful murder. When the reasons turn to the “detailed issues of statutory construction” (at [50]) the reasons identify (correctly) that it was “unequivocally clear” that the Commonwealth Parliament intended to deprive the judicial officer of the power to impose a non-custodial sentence or a power to impose a sentence of less than five years (at [53]).
The critical part of the reasoning in the judgment is (at [54]) as follows:
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.”
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.
Fourth, the discount provisions in s 16AAC(2)-(3) of the Crimes Act are effectively neutral. Whichever interpretation is adopted, a judge is required to identify a starting point for the sentence that does not take into account any discount for the plea of guilty or cooperation with authorities. From that starting point, ss 16AAC(2)-(3) are then applied and may permit the minimum sentence to go below that which is specified. The existence of that regime for discounts below the minimum term does not favour one or other of the interpretations. For example, adopting the Crown’s approach, if the starting point was that a sentence of four years and six months (54 months) was appropriate but a discount of 25 per cent of the minimum sentence of four years on account of the plea of guilty was to be applied, the sentence would be reduced to three years and six months (42 months). On the offender’s approach, the discount provisions would still work. If the appropriate sentence without regard to discounts was two and half years (30 months), s 16AAB of the Crimes Act would require that the sentence be at least four years (48 months) but if a 25 per cent discount was required on account of the plea of guilty then that would be reduced to three years (36 months). As a consequence, the existence of the regime for discounts does not provide a basis for preferring one interpretation over another.
It must, however, be accepted that the provision of this regime for discounts can be seen as a response by the drafter of the legislation to the issue raised in Bahar at [56], where specific reference was made to the complications created by a statutory minimum term for mitigatory factors such as pleas of guilty. That is suggestive of the proposition that the legislation was drafted in light of the accepted interpretation in Bahar, although that is not clearly reflected in the extrinsic material.
Fifth, it must be accepted that there is value in theoretical coherence of a sentencing regime. The Crown’s interpretation, while achieving significant and unavoidable increases in penalties imposed, would do so within a framework that reflected the individual circumstances of the case. It would therefore avoid the crowding effect that would arise upon the offender’s interpretation where a range of cases that would otherwise have different penalties imposed would have the mandatory minimum penalty imposed. Avoiding this was what gave rise to Allsop P’s additional reason in Karim. However, the conceptual elegance of the Crown’s approach is achieved at a very high cost. It was that cost which was emphasised by Adams J. It is therefore an interpretive consideration of only marginal significance.
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.
In explaining the operation of s 16AAC of the Crimes Act, the explanatory memorandum makes a statement (at [213]) that:
The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the tables in section 16AAA and subsection 16AAB(2).
As pointed out above, the Crown does not submit that this accurately reflects the operation of the provisions. However, the significance for present purposes is that this statement is incorrect whichever interpretation is adopted. If the Crown’s position is adopted, it is incorrect because the reduction provisions can apply even in circumstances where the starting point before the application of discounts is substantially higher than the minimum sentence. For example, a four year and nine months sentence may be reduced under s 16AAC by 25 per cent of the minimum term (one year) so that the ultimate penalty imposed is three years and nine months. That is inconsistent with what is said in the passage quoted above. On the offender’s interpretation, the provision would operate in the same way where the starting point was above the statutory minimum.
Seventh, so far as the second reading speech is concerned, the general rhetoric about short jail terms and sentences that do not involve a single day in prison are equally if not more consistent with the offender’s interpretation because they reflect a desire to avoid non-custodial sentences and to ensure a minimum period for the head sentence. There is nothing in the second reading speech consistent with an intention to achieve a generalised increase in sentences as opposed to ensuring a minimum threshold. The following extracts illustrate this approach:
The depraved individuals who prey on these most vulnerable members of our community for their own sexual gratification or financial gain are too often handed short jail terms and are released into the community without any supervision, or worse still, without serving a single day in prison.
…
Sentencing reforms
…
In the last financial year, 39 per cent of Commonwealth child sex offenders walked away with a non-custodial sentence following their convictions for child sex crimes. In the majority of cases in the last five years where offenders did receive sentences of actual imprisonment, the most common total sentence was just 18 months with six months of being served in custody.
Too often, child sex offenders spend insufficient time in custody to undergo even treatment programs or receive any significant rehabilitation before being eligible for release back into the community. Further, upon their release, many are not subject to parole or any other form of supervision, posing a continuing threat to community safety.
This bill addresses this unacceptable situation by introducing a sentencing presumption in favour of actual imprisonment, rebuttable only in exceptional circumstances. This will reduce the number of wholly suspended sentences being handed down for Commonwealth child sex offenders. [This relates to the amendments to the recognizance release provisions in s 20 of the Crimes Act.]
The bill introduces minimum terms of five to seven years for the most serious child sex offences. [This is a reference to s 16 AAA] This represents approximately 25 per cent of the available maximum penalty for such offences. Recidivist child sex offenders will also face minimum sentences from one to four years across the spectrum of child sex offences at the Commonwealth level. [This is a reference to s 16AAB]
In all cases judges will retain complete discretion in the setting of the minimum amount of time the offender spends in custody. This will ensure they retain broad capacity to tailor sentences that foster rehabilitation and allow for suitable post-release supervision of offenders. This means that offenders should no longer be released unconditionally back into the community and will instead be supervised and subject to strict conditionsꟷensuring the best outcomes for community safety.
Judges will also retain discretion to deviate from the minimum terms set statutorily by up to 25 per cent each, to allow for the recognition of early guilty pleas and cooperation with law enforcement. This is an important provision to ensure we do not disincentivise demonstrations of remorse by offenders that facilitate the administration of justice.
(Emphasis added.)
Eighth, the principle of legality is a significant matter tending in favour of the interpretation suggested by the offender. 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. The constitutional rationale behind the principle of legality was explained in R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131 as follows:
[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
These comments appear particularly apt in the present case where neither the text nor the extrinsic material indicate that the Commonwealth Parliament has clearly grasped the full implications of the interpretation contended for by the Crown and hence accepted political accountability for such legislation.
In conclusion, having regard to the language used and the purpose of the provisions as expressed in the explanatory memorandum and second reading speech, it cannot be said that the provisions necessarily imply the approach contended for by the Crown. Nor is it inherent and hence necessarily implied by the concept of a requirement that a term of imprisonment of “at least” a specified length be imposed that the whole of the spectrum of available sentences be adjusted in the way contended for by the Crown. Further, the provisions will operate effectively whichever interpretation is adopted. Having regard to the fact that the language of the provisions is more consistent with the offender’s interpretation and the principle that penal legislation such as this should be interpreted in a manner consistent with the legislature accepting political accountability for its decisions, but for the decision in Bahar and subsequent cases, it would be appropriate to interpret the provisions in the manner contended for by the offender.
Notwithstanding the conclusion that I would have reached in the absence of the decision in Bahar and the cases which have followed it, I cannot find a principled basis upon which to depart from those decisions. While obviously the legislation is different, the relevant statutory command, that is, a command to impose a sentence of “at least” a specified number of years is the same in the Crimes Act as it was in the Migration Act. Given the level of generality at which the Western Australian Court of Appeal dealt with the matter and the uniform acceptance of that approach by other intermediate courts of appeal, I do not consider that it is open for me as a single judge to depart from that approach. Therefore, I consider that I am bound to follow the approach articulated in Bahar and apply it in the context of s 16AAB of the Crimes Act.
Second issue - operation of transitional provisions
This issue arises in relation to the subject matter of the possession charge. The issue arises because some of the photos and videos the subject of the charge entered the possession of the offender prior to the 2020 Amending Act coming into effect on 23 June 2020. The issue that arises is whether, and to what extent, the sentencing provisions enacted by the 2020 Amending Act could be applied.
As pointed out above, the possession charge covered a range of collections of images and videos. Only 25 of those images came into the possession of the offender after 23 June 2020. The 104 photos, 357 photos and 48 videos all came into the possession of the offender prior to 23 June 2020. 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 submissions on behalf of the offender analysed the elements of s 474.22A(1) as follows:
(a)a person (A) obtained or accessed material (physical element of conduct);
(b)the material is child abuse material (physical element of circumstance);
(c)A used a carriage service to obtain or access the material (physical element of circumstance in which conduct occurred);
(d)A has possession or control of the material (physical element of conduct); and
(e)The material is in the form of data held in a computer, et cetera (physical element of circumstance in which conduct occurred).
The offender pointed to the words “conduct engaged in” in item 3 of part 1 of schedule 6 of the 2020 Amending Act (set out at [47] above) and submitted that given that element (c) set out above occurred prior to 23 June 2020, not all of the “conduct engaged in” occurred on or after the commencement of the relevant provisions of the 2020 Amending Act.
He also pointed to the general provision in s 4F of the Crimes Act (set out at [48] above).
As a consequence, he submitted that it would only be in relation to the 25 images that the new mandatory minimum penalties apply.
The Crown, on the other hand, submitted that the gravamen of the offence was the possession of the child abuse material. It submitted that the element of using the carriage service to obtain or access material is a physical element of circumstance and not a conduct element. It noted that there is no fault element as absolute liability attaches to the physical element. It submitted that the carriage service element is simply there to enliven Commonwealth constitutional power to legislate in respect of this subject matter. The submissions suggested that the court should find that “the non-substantive nature” of the element is such that it would not be considered to be “conduct engaged in” for the purposes of the transitional provision. It submitted that any commonality of conduct or concern about double counting could be addressed through issues of totality and the principles outlined in Pearce v The Queen [1998] HCA 57; 194 CLR 610.
It is important to note that the offender did not submit that the amended penalty regime could have no application at all to the sentence because some of the conduct engaged in, namely, use of the carriage service to obtain the 104 photographs, the 357 photographs and the 48 videos occurred prior to 23 June 2020. Rather, 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. Similarly, the Crown did not contend that if its interpretation was rejected then the consequence would be that the amended penalty regime had no application to the sentence. I have determined the issues arising in relation to the sentence on the basis that they were identified by the parties.
Decision
In my view, this question is resolved by the language of item 3 of part 1 of schedule 6 and the terms of the offence provision. It is not necessary for these purposes to engage in the characterisation of physical and fault elements required by the Criminal Code. Section 474.22A contains the element that “the person used a carriage service to obtain or access the material”. That involves conduct. It is conduct in the past. It is past conduct which qualifies the circumstances in which possession is criminalised. For the purposes of s 4.1 the Criminal Code, it may be characterised as a physical element being a circumstance in which the possession occurs. However, the language of the transitional provision does not draw a distinction between different types of physical element. It simply refers to “conduct engaged in”. In this respect, it may be contrasted with s 4F of the Crimes Act which turns on when the “offences [were] committed”.
The most straightforward reading of the expression “conduct engaged in” is to require that all of the conduct required to constitute the offence was engaged in after the relevant date. That is because element (a) and element (c) each refer to conduct. The fact that element (c) can be characterised, for the purposes of other provisions of the Criminal Code, as past conduct which gives rise to a circumstance in which the subsequent conduct occurs does not provide a sufficient reason to confine the concept of conduct to the last required conduct or to the principal conduct required to establish the offence. The imposition of a requirement that the conduct be “substantive” or the “gravamen” of the offence is not something which arises from the language used and is not something which it is necessary to read into the provision to give it a reasonable operation.
I do not consider that the imposition of absolute liability by s 474.22A(2) or the legal burden placed upon a defendant by s 474.22A(3) alters the approach to the words “conduct engaged in”.
As a consequence, I accept the submissions made on behalf of the offender that the increased penalties only apply to the offence insofar as it involved the 25 additional photographs.
Neither party contended that this presented any impediment to sentencing the offender. The submission made on behalf of the offender was that it only affected the assessment of the objective seriousness of the offending. Because of my interpretation of the operation of item 3 of part 1 of schedule 6, I have treated the offending as being at the low end of the mid-range that I identified earlier (see [30] above).
Cumulative sentence provisions - s 19(5) of the Crimes Act
Section 19(5) of the Crimes Act prevents any concurrency between a term of imprisonment imposed for a Commonwealth child sex offence and an uncompleted term of imprisonment imposed for another Commonwealth child sex offence or a State or Territory registrable child sex offence. Commonwealth child sex offence includes offences under subdivisions D and F of Division 474 of the Criminal Code: see s 3 of the Crimes Act. Subdivision D includes ss 474.22 and 474.22A. Section 474.19 (the relevant provision for the 2019 Commonwealth sentence) was repealed by the Combating Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) which came into effect on 21 September 2019. Prior to its repeal, s 474.19 was within subdivision D.
For the purposes of s 19(5) of the Crimes Act, the Australian Capital Territory is a “State”: see s 16 of the Crimes Act.
“State or Territory registrable child sex offence” is defined in s 3 of the Crimes Act so that it picks up an offence involving child abuse material that results or may at any time have resulted in the offender’s name being on the register kept under the Crimes (Child Sex Offenders) Act 2005 (ACT).
The definition is such that it is not expressly limited to a State or Territory offence but rather identifies an offence which is registrable on a State or Territory child protection offender register. Both of the offences of which the offender was previously convicted are registrable offences under the Crimes (Child Sex Offenders) Act.
Section 19(6) of the Crimes Act provides that s 19(5) does not apply if the court is satisfied that imposing the sentence in a different manner would still “result in sentences that are of a severity appropriate in all the circumstances”. However, s 19(7) requires that reasons be given for a sentence that permits concurrency.
The repeal of s 474.19, the provision pursuant to which the offender was given the 2019 Commonwealth sentence, gives rise to a question as to whether that sentence presently falls within the scope of s 19(5) of the Crimes Act because it is no longer “Commonwealth child sex offence” within the meaning of the definition as it is no longer within subdivision D of division 474. As I have pointed out above, the provision would be covered by the definition of “State or Territory registrable child sex offence” because the language of the definition can cover current and former Commonwealth offences and the Crimes (Child Sex Offenders) Act still includes s 474.19 as a registrable offence.
It may be that the structure of s 19(5) of the Crimes Act, which refers separately to a “Commonwealth child sex offence” and to a “State or Territory registrable child sex offence”, is intended to exclude the former from the scope of the latter. That might have the effect that the repeal of s 474.19 excluded the 2019 Commonwealth sentence from the operation of s 19(5). However, in the absence of submissions by the parties on this issue and having regard to the conclusion that I have reached in any event (see [121] below), it is not necessary to go into this issue any further.
Sentences
The offender presents as a sad and isolated person. He appears to lack direction. He displayed a lack of motivation or capacity to pursue his rehabilitation once released, notwithstanding that he was subject to supervision. He returned to committing offences within a few months of being released from custody on the 2019 Territory sentence. That earlier sentence of imprisonment was not sufficient to deter further significant offending. His prospects of rehabilitation remain guarded. He is no longer entitled to the leniency that he was at the time of the earlier sentences.
Territory possession charge
Under s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) it is necessary to cancel the good behaviour order and to either impose the suspended portion of the sentence or to resentence the offender. In my view, having regard to the nature of the further offending and the failure to comply with supervision obligations under the earlier order, the appropriate course to adopt is simply to impose the suspended portion of the sentence.
Commonwealth distribution charge
In relation to the charge of using a carriage service to distribute child pornography material, having regard to the nature of that charge, the penalty imposed in 2019 and to the other sentences to be imposed upon the offender, the appropriate course under s 20A(5)(b)(iii) of the Crimes Act is to take no further action.
New offences
So far as the new offences are concerned, general deterrence would usually be the primary sentencing consideration given the prevalence child exploitation material and its wide distribution via the Internet. However, in this case, because of the previous offending and the failure of the sentences to deter the offender from further offending, specific deterrence must also play a significant role.
It is not necessary to repeat the rationale for the criminalisation of the possession of child exploitation material. It is sufficient to observe that the maximum penalty for the offence is lengthy and that the legislature has, by setting a mandatory minimum sentence, given a legislative direction as to the gravity of that offending and the framework within which sentences are to be set.
In relation to the charge of possessing child abuse material, the relevant starting point is a sentence of five years’ imprisonment. This is reduced by one year to four years. This represents a reduction of 20 per cent on account of the plea of guilty. It is the maximum that is permitted under s 16AAC(3)(a). That is because the permitted reduction referred to in that section is “up to 25% of the period specified in column 2 of the applicable item in the relevant table”. It is therefore tied to the minimum sentence which in this case is of four years. That allows a reduction of up to 25 per cent if the mandatory minimum term is being imposed but reduces the permitted percentage discount, where the sentence imposed is above the mandatory minimum, but close enough to it, to require the engagement of s 16AAC(2)-(3) if it were to permit a sentence below the mandatory minimum. Had it not been for this limitation, I would have reduced the sentence by 25 per cent on account of the plea of guilty.
This sentence will be wholly cumulative upon the imposed portion of the 2019 Territory sentence. That is because the offending is completely separate and any issues of totality can be dealt with through the relationship between the three sentences for the new offending. It is because I have reached that conclusion that it was not necessary to resolve any interpretation issues that might arise in relation to s 19(5) of the Crimes Act arising out of the repeal of s 474.19 of the Criminal Code (see [114] above).
So far as the charge of using a carriage service to access child abuse material is concerned, the material the subject of this charge is a subset of the material that is subject to the possession charge. No mandatory minimum term applies because this offence was committed prior to 23 June 2020. The sentence will be a sentence of 15 months’ imprisonment, reduced from 20 months on account of the plea of guilty. Given the limited way in which the 104 photographs are to be taken into account in assessing the objective gravity of the possession charge, it is appropriate that there be a degree of cumulation of this sentence upon the sentence for possession. The sentence will be cumulative as to four months but otherwise concurrent.
Finally, so far as the charge of using a carriage service to cause child abuse material to be transmitted to himself, the material the subject of this charge partially overlaps with the material the subject of the possession charge. That is because 357 photographs are covered by the possession charge but the seven videos are not. A sentence of 15 months’ imprisonment will be imposed, reduced from 20 months on account of the plea of guilty. For the same reason as the earlier charge, a degree of cumulation is appropriate and it will be cumulative upon the previous charges as to four months but otherwise concurrent.
The net effect of the new sentences is a sentence of imprisonment of four years and eight months. Combined with the imposition of the suspended sentence of seven months this gives a total sentence of five years and three months. Pursuant to s 19(6)-(7) of the Crimes Act, I am satisfied that imposing the sentences in the manner that I have with a significant degree of concurrency will still result in sentences that are of a severity appropriate in all the circumstances. The reasons for that are that:
(a)no concurrency has been introduced as between the new offences and the old offence, recognising that they involved completely separate conduct;
(b)in relation to the new offences, there is substantial overlap in the material that was transmitted, accessed and possessed;
(c)the minimum sentence requirements that apply in relation to the possession charge give rise, by themselves, to a sentence of significant severity; and
(d)to fully accumulate the sentences would impose a crushing sentence upon the offender.
Non-parole period
It is not necessary to set a non-parole period in relation to the imposition of the balance of the Territory sentence as the sentence is less than 12 months (treating for the purposes of s 65 of the Crimes (Sentencing) Act 2005 (ACT) the suspended sentence being imposed as only that part of the overall sentence which was suspended). It is necessary to set a non-parole period in relation to the new Commonwealth offences.
A non-parole period is the minimum period which the court considers it necessary that the offender actually serve in prison in order to fulfil the purposes of sentencing. In my view, the purposes of sentencing will be satisfied by the setting of a non-parole period in relation to the new Commonwealth offences of 25 months. This represents approximately 45 per cent of the aggregate head sentence for the new Commonwealth offences. It means that the offender will be required to serve at least 32 months prior to becoming eligible for release (seven-month Territory sentence plus 25-month Commonwealth non-parole period), approximately 51 per cent of the overall sentence. A shorter than usual non-parole period is appropriate having regard to the service of the Territory sentence prior to the commencement of the non-parole period, in order to accommodate the possibility that the offender makes good progress with rehabilitation programs in prison and in order to give the offender and the community the benefit of having a significant period subject to some form of supervision upon release.
Orders
The orders of the Court are:
1. On the charge of intentionally possessing child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT) (CC2019/477), the good behaviour order entered into as a result of order 2 made on 6 June 2019 is cancelled and the suspended sentence of seven months’ imprisonment is imposed starting on 29 July 2020 and ending on 28 February 2021.
2. On the charge of using a carriage service to distribute child pornography material contrary to s 474.19 of the Criminal Code 1995 (Cth) (CC2019/1959), pursuant to s 20A(5)(b)(iii) of the Crimes Act 1914 (Cth) the court takes no action.
3. 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 starting on 1 March 2021 and ending on 28 February 2025.
4. 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 15 months commencing on 29 March 2024 and ending on 28 June 2025.
5. 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 starting on 29 July 2024 and ending on 28 October 2025.
6. The non-parole period in relation to the Commonwealth offences starts on 1 March 2021 and ends on 30 March 2023.
| I certify that the preceding one hundred and twenty‑seven [127] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 29 September 2021 |
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