Hurt v The King; Hurt v The King; Delzotto v The King [2024] HCA 8

Does the mandatory minimum sentence provision in s 16AAB of the Crimes Act 1914 (Cth) (‘Crimes Act’) operate in a similar way to a specified maximum sentence? How does the construction of this provision interact with the fact that the policy of statutory minimum sentences is a matter for the legislature? When is s 16AAB capable of applying to an offence of possessing or controlling child abuse material contrary to s 474.22A(1) of the Criminal Code (Cth) (‘Code’)?

These issues were considered by the High Court in Hurt v The King; Hurt v The King; Delzotto v The King [2024] HCA 8.

The legislative provisions

On 23 June 2020, the Crimes Act was amended by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), which introduced new sentencing provisions, including s 16AAB, which, subject to narrow exceptions, created minimum terms of imprisonment upon conviction for the second or subsequent commission by an offender of certain child sexual abuse offences.

Section 16AAB of the Crimes Act provides, in effect, that if a person is convicted of a Commonwealth child sexual abuse offence listed in the table provided in s 16AAB(2) and the person has been convicted previously of a child sexual abuse offence then, subject to exceptions in s 16AAC, the court must impose at least the minimum sentence of imprisonment prescribed in the table for that offence.

One of the offences for which a minimum sentence of four years is provided, is that contrary to s 474.22A(1) of the Code. Section 474.22A(1) provides that a person commits an offence if:

1. the person has possession or control of material;

2. the material is in the form of data held in a computer or contained in a data storage device;

3. the person used a carriage service to obtain or access the material; and

4. the material is child abuse material.

Each appellant was convicted and sentenced for contravening s 474.22A and each had been previously convicted of a child sexual abuse offence.

Whether the mandatory minimum sentence applied even though the proscribed material had been obtained or accessed using a carriage service prior to 23 June 2020

The applicable transitional provision relevantly provides that s 16AAB applies in relation to a conviction for a ‘Commonwealth child sexual abuse offence’ where the ‘relevant conduct’ was ‘engaged in’ on or after 23 June 2020.

This issue was whether ‘conduct engaged in’ meant the ‘conduct’ specified in both ss 474.22A(1)(a) (‘the person has possession or control of material’) and 474.22A(1)(c) (‘the person used a carriage service to obtain or access the material’) so that if only one aspect of the ‘conduct’ occurred before 23 June 2020, the amendments do not apply.

Gageler CJ and Jagot J resolved this issue against the appellants, holding that within the context of the Code, ‘conduct’ that was ‘engaged in’ and that was ‘relevant’ to the offence means the doing of an act specified in s 474.22A(1)(a) (‘the person has possession or control of material’) and not the specified circumstance in s 474.22A(1)(c) (‘the person used a carriage service to obtain or access the material’). The offence criminalises a person’s possession or control of child abuse material that has been (at any time) obtained or accessed by the person using a carriage service: at [14]–[24].

Edelman, Steward and Gleeson JJ also found that s 16AAB was capable of applying to both appellants. Their Honours held that ‘relevant conduct’ was concerned only with acts rather than the results of those acts or the circumstances in which they occur. Their Honours explained that the concern of the ‘circumstance’ element is not to identify the centrally harmful behaviour that s 474.22A(1) is intended to criminalise (namely, a person’s act of possession or control of child abuse material) but is rather concerned to provide a source of jurisdiction for the Commonwealth Parliament to enact the offence pursuant to s 51(v) of the Constitution (relevantly, legislative power to enact laws with respect to ‘postal, telegraphic, telephonic, and other like services’). This element was a ‘composite expression that creates a single circumstance for jurisdictional reasons’: at [79]–[84].

Whether the mandatory minimum sentence operates as a yardstick in a similar way to a specified maximum sentence

Gageler CJ and Jagot J held that the Commonwealth Parliament intended the statutory minimum sentence to function as a yardstick. Their Honours reasoned that the statutory minimum is ‘adapted to the function of acting as a yardstick representing the least worst category of case for which a sentence of imprisonment is required (before applying any potential discounts for a guilty plea or cooperation with law enforcement agencies) against which the case before the court can be assessed’: at [33]. Further, s 16AAB(2) (and s 16AAA) ‘presupposes’ both conviction and that the court has decided, first, to impose a sentence of imprisonment and second, that the sentence of imprisonment is not to be subject to any direction under s 20(1)(b) of the Crimes Act (which enables a court to convict and sentence the person to imprisonment but direct that the person be released upon giving security): at [35].

Their Honours explained that ‘if a person was 18 years or more when the “current offence” was committed, is convicted of that offence, is to be subjected to a sentence of imprisonment, and is not to be subject to an order for release under and in accordance with s 20(1)(b), then the minimum sentence provision in s 16AAB(2) is engaged’ and is ‘the yardstick representing the Commonwealth Parliament’s view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured’: at [39]. Further, the prescribed reduction to the minimum penalties in ss 16AAC(2)–(3) ‘is available to all offenders who have pleaded guilty or who have cooperated with law enforcement agencies whether that reduction would decrease the sentence below the statutory minimum or not’: at [39].

The argument that interpreting the minimum penalty provision as a yardstick ‘artificially distorts the sentences upwards’ was held to be, in essence, ‘a complaint about the policy of imposing a statutory minimum sentence for an offence’ which is ‘a matter for the legislature, not the courts’: at [46]. The intention of the Commonwealth Parliament that the statutory minimum sentence function as a yardstick and that the statutory minimum increase the number and length of sentences of imprisonment for Commonwealth child sex offences was clear from the Attorney-General’s second reading speech: at [41], [43].

Edelman, Steward and Gleeson JJ noted that the intended operation of the amendments was summarised ‘in detail’ in the second reading speech, in which, inter alia, the Attorney-General had quoted from Magaming v The Queen (2013) 252 CLR 381: at 396 [48] that ‘a mandatory minimum penalty fixes one end of the relevant yardstick’ and had added that the mandatory minimum penalties ‘set a sentencing yardstick for judges sentencing Commonwealth child sex offenders’: at [88]. Their Honours rejected the argument that there was an absence of legislative purpose to increase sentence generally, noting the remarks during the second reading speech including the need to ‘shift sentencing practices’ (at [92]) and this was reinforced by the unlikelihood that Parliament could be taken to have intended the inconsistent consequences and potential denial of equal justice that would arise if the minimum sentences did not serve as a yardstick. This was so because ‘the same sentence might be given for one offender who committed the same offence as another but whose conduct and circumstances were objectively much less serious’: at [93].

Conclusion

It is now clear that the legislative function of statutory minimum sentences is to restrict sentencing power to the minimum period of imprisonment and, subject to exceptions, to provide a yardstick representing the least worst possible case warranting imprisonment against which the case before the court can be measured. As Gageler CJ and Jagot J explained, the ‘policy of imposing a statutory minimum sentence for an offence is a matter for the legislature, not the courts’: at [46]. Further, the minimum sentence in s 16AAB is capable of application to an offence contrary to s 474.22A(1) if the offender has possession or control of the proscribed material on or after 23 June 2020, even if that material was obtained or accessed using a carriage service prior to that date.