Hurt v The King

On appeal from the Supreme Court of the Australian Capital Territory and the Supreme Court of New South Wales

J White SC with K V Lee for the appellant in C7/2023 an C8/2023 (instructed by Legal Aid ACT)

R J Wilson SC with T D Anderson SC and N J Broadbent for the appellant in S44/2023 (instructed by Legal Aid NSW)

J T Gleeson SC and K M J Breckweg with C J Tran for the respondent in each matter (instructed by Commonwealth Director of Public Prosecutions)

North Australian Aboriginal Justice Agency appearing as amicus curiae, limited to its written submissions

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Criminal law - Sentencing - Appeal against sentence - Minimum sentences - Where s 16AAB of Crimes Act 1914 (Cth), inserted by Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("Amendment Act"), provided for minimum terms of imprisonment, subject to limited exceptions, for offences - Where offences included s 474.22A(1) of Criminal Code (Cth) ("Possessing or controlling child abuse material obtained or accessed using a carriage service") - Where elements of offence included, relevantly, "the person has possession or control of material" and "the person used a carriage service to obtain or access the material" - Where transitional provision in Amendment Act required "relevant conduct ... engaged in" to take place on or after commencement of amendments, including insertion of s 16AAB - Whether minimum sentence provides yardstick for calculation of appropriate penalty in addition to restricting sentencing power - Whether "relevant conduct" concerns only "conduct" element of offence or also "circumstance in which conduct ... occurs".

Words and phrases - "appropriate penalty", "appropriate term of imprisonment", "child sexual abuse offence", "conduct", "double function", "engaged in", "relevant conduct", "restriction on power", "sentencing", "sentencing discretion", "statutory minimum sentence", "yardstick".

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6, items 3, 9.

1. GAGELER CJ AND JAGOT J. Each appellant was convicted and sentenced for contravening s 474.22A of the Criminal Code (Cth) ("the Criminal Code"), titled "Possessing or controlling child abuse material obtained or accessed using a carriage service". Each contends that his sentence is subject to vitiating error.
2. First, the appellants contend that the minimum sentence provision which was applied to each appellant's sentence, s 16AAB of the Crimes Act 1914 (Cth) ("the Crimes Act"), does not apply to them given the terms of the applicable transitional provision. Second, and if the minimum sentence provision does apply to them, the appellants contend that the appeal courts below misapplied the provision in reasoning that the specified minimum sentence reflects the Commonwealth Parliament's identification of the relative seriousness of a contravention of s 474.22A of the Criminal Code in a similar way to a specified maximum sentence.
3. Neither ground of alleged error is sustainable. The appeals must be dismissed.

Construction of the applicable transitional provision

1. Section 16AAB, together with ss 16AAA and 16AAC, was inserted into the Crimes Act by item 2 of Sch 6 to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("the Amendment Act"). These provisions commenced on 23 June 2020.[1] Section 16AAB provides that:

"(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."

1. Item 9 of Sch 6 to the Amendment Act inserted into the table in s 16AAB(2) item 24A as follows: Minimum penalty

Column 1 Column 2 Item Current offence Sentence of imprisonment

... ... ...

24A offence against subsection 474.22A(1) of the Criminal Code 4 years

... ... ...

1. Item 3 ("Application provisions") of Sch 6 to the Amendment Act is the applicable transitional provision. It is in these terms:

"(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)."

1. As item 3 is in Pt 1 of Sch 6 to the Amendment Act, the words "on or after the commencement of this Part" in item 3(1) and (2) mean on or after 23 June 2020. Accordingly, item 3(1) provides that, relevantly, 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.
2. Section 474.22A of the Criminal Code, which was inserted by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) and which commenced on 21 September 2019,[2] provides that:

(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

(2) Absolute liability applies to paragraph (1)(c).

(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:

(b) used a carriage service to obtain or access the material."

1. The appellants argue that, as item 3(1) of Sch 6 to the Amendment Act provides that the "amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part", the amendments cannot apply to a conviction for an offence against s 474.22A if "the person used a carriage service to obtain or access the [child abuse] material" before 23 June 2020. In other words, the appellants contend that the "conduct engaged in" means "conduct" specified in both s 474.22A(1)(a) ("the person has possession or control of [child abuse] material") and s 474.22A(1)(c) ("the person used a carriage service to obtain or access the [child abuse] material"). The appellants' case is that if both classes of specified "conduct" occurred on or after 23 June 2020, the amendments (including s 16AAB) apply. If, however, one class of the "conduct" forming an element of the offence occurs before 23 June 2020, the amendments do not apply.
2. The issue of statutory construction which this argument raises matters because, in the case of one appellant, Mr Hurt, the charges of which he was convicted and on the basis of which he was sentenced for offences against s 474.22A included child abuse material that he had used a carriage service to obtain before 23 June 2020. In the case of the other appellant, Mr Delzotto, the charges of which he was convicted and on the basis of which he was sentenced for offences against s 474.22A all involved child abuse material that he had used a carriage service to obtain before 23 June 2020.
3. The statutory construction issue must be resolved against the appellants.
4. The operative part of the applicable transitional provision in item 3 of Sch 6 to the Amendment Act is item 3(1) ("the amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part"). Item 3(2), which refers to s 16AAB applying "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", is performing a different function. First, s 11B(2) of the Acts Interpretation Act 1901 (Cth) operates so that the terms "Commonwealth child sexual abuse offence" and "child sexual abuse offence" as used in item 3(2) of Sch 6 to the Amendment Act have the meaning given in the Crimes Act. Second, the key words in item 3(2) are those which appear in the parentheses, "(regardless of whether the relevant previous conviction of the person for a child sexual abuse offence occurred before, on or after that commencement)". The function of item 3(2) is to make clear that s 16AAB(1)(b) ("the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence"), on which the operation of s 16AAB depends, involves a conviction of any child sexual abuse offence at any time irrespective of the day on which "amendments made by this Part", as referred to in item 3(1) of Sch 6, commenced (that is, 23 June 2020). It follows that the relevant words are "conduct engaged in" in item 3(1) of Sch 6, and the words "where the relevant conduct was engaged in" in item 3(2) of Sch 6 must take the same meaning as the words "conduct engaged in".

"Paragraph 474.22A(1)(c) will require that the child abuse material was obtained or accessed by the defendant by the use of a carriage service. The use of a carriage service provides the relevant connection to the legislative power under section 51(v) of the Australian Constitution. ... [A]bsolute liability as outlined in section 6.2 of the Criminal Code will apply to paragraph 474.22A(1)(c) as it is a particular physical element, being the jurisdictional element of the offence. The jurisdictional element of the offence is not central to the conduct or the culpability for the offence."

1. There is no reason to assume or infer that the Second Reading Speech and the Explanatory Memorandum do other than accurately convey the precise intention of the Commonwealth Parliament - the new offence is to criminalise 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.
2. Contrary to the appellants' submissions, s 4F of the Crimes Act, which is a general transitional provision regulating when an increased or decreased penalty operates, is immaterial. That section operates on all increases or decreases in penalty for an offence. There is nothing surprising about the Commonwealth Parliament having decided to include a specific transitional provision for the suite of legislative reforms of which s 16AAB of the Crimes Act forms one part.
3. For these reasons, the appellants' construction of item 3 of Sch 6 to the Amendment Act in its application to s 474.22A of the Criminal Code must be rejected. The appeal courts below did not err in that respect.

1. Section 16AAB(1) of the Crimes Act establishes a temporal sequence which must exist to trigger the application of s 16AAB(2). The conviction of a "child sexual abuse offence" (meaning an offence defined to be a child sexual abuse offence in s 3(1) of the Crimes Act, which includes "a Commonwealth child sex offence" and "a State or Territory registrable child sex offence") must have occurred "at an earlier sitting" than the person's conviction of a "Commonwealth child sexual abuse offence" - the latter defined as the "current offence". If that temporal sequence is satisfied then, on the conviction of the person for the current offence, the specified minimum sentence provision is engaged.
2. Given that this temporal sequence is required by the terms of s 16AAB(1) to trigger the application of s 16AAB(2), it is irrelevant that the requirement may act in an arbitrary manner on one or other offender depending on the timing of the charge, the hearing, and the conviction of the child sexual abuse offence as defined in s 3(1) of the Crimes Act and the current offence as referred to in s 16AAB(1) of that Act. That potential arbitrariness of timing is inherent within the legislative provisions and therefore cannot be assumed or inferred to convey any direction or suggestion to a court about the application of the minimum sentence provision. The appellants' attempt to rely on the potential arbitrary operation of s 16AAB(2), in distinction from s 16AAA, must be rejected. Section 16AAA applies to any specified offence against a provision of the Criminal Code even if it is a first offence.
3. It was not in dispute that when a statute specifies a maximum sentence the specified maximum has two functions. It confines the power of the court to impose any sentence greater than the maximum. It also informs the sentencing process by conveying the Commonwealth Parliament's view of the relative seriousness of the offence. In Markarian v The Queen, for example, Gleeson CJ, Gummow, Hayne and Callinan JJ said that "careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick".[16] In other words, the maximum sentence reflects the Commonwealth Parliament's view of the appropriate sentence for the worst possible case constituting the offence.

"(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 court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."

1. A statutory minimum sentence and a statutory maximum sentence are each "circumstances of the offence" and "circumstances of the case" of fundamental importance for the purposes of ss 16A(1) and 17A(1). A statutory minimum sentence and a statutory maximum sentence have to be considered in deciding if there is no sentence other than imprisonment that is "appropriate in all the circumstances of the case" and, if so, a sentence that is "of a severity appropriate in all the circumstances of the offence". To refuse to consider a statutory minimum sentence in deciding if there is no sentence other than imprisonment is appropriate in all the circumstances of the case and, if so, what sentence to impose or what order to make is irreconcilable with the directions in ss 16A(1) and 17A(1) of the Crimes Act. A statutory minimum sentence and a statutory maximum sentence are also "other matters" which a court must take into account by s 16A(2).
2. Accordingly, ss 16A(1) and (2) and 17A(1) do not speak against a statutory minimum sentence functioning as a yardstick representing the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. To the contrary, they direct consideration of the statutory minimum sentence at all steps in the sentencing process, as opposed to the appellants' case, which confines the function of the statutory minimum sentence to a final check on the term of any sentence of imprisonment by operation of which any sentence below the mandated minimum must be increased to the minimum (before applying any discount for a guilty plea or cooperation with law enforcement agencies). In directing the consideration of the statutory minimum sentence at all steps in the sentencing process, the statutory minimum sentence is thereby 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.
3. The other "available sentences" referred to in s 17A(1) include, for example, the orders for which provision is made in: (a) s 19B(1) of the Crimes Act, which provides that, if satisfied that a charge is proved, the court may dismiss the charge or discharge the person without proceeding to conviction upon the person giving security by recognizance or otherwise ensuring compliance with specified conditions; (b) s 20(1)(a) of the Crimes Act, which enables a court to convict a person of an offence but order the release of the person without passing sentence on the person, upon the person giving security by recognizance or otherwise ensuring compliance with specified conditions; and (c) s 20(1)(b) of the Crimes Act, which enables a court to convict a person of an offence and sentence the person to imprisonment but direct, by order, that the person be released, upon giving the same kind of security, in accordance with the applicable criteria specified in s 20(1)(b)(i) to (iii).

(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."

1. Contrary to the appellants' submissions, the use of the expression in s 16AAC(3)(a) to (c), "if the court is taking into account" either a guilty plea or cooperation with law enforcement agencies, indicates nothing about the proper approach to the statutory minimum sentence. Nor does the fact that these are also required considerations under s 16A(2)(g) and (h).
2. Section 16A(2AAA), which requires the court also to consider the objective of rehabilitating the person, including, in determining the length of any sentence or non‑parole period, sufficient time for the person to undertake a rehabilitation program, reinforces that the required approach is for the statutory minimum sentence to be considered throughout the sentencing process, and not just as a final step in the process if the sentence to be imposed is imprisonment - ignoring the statutory minimum sentence to that point - and the length of that sentence of imprisonment happens to be less than the statutory minimum sentence. The same understanding applies to s 16A(3), which requires the court to have regard to the nature and severity of the conditions that may be imposed on an offender under a sentence or order when determining the application of, relevantly, s 19B(1) or s 20(1) of the Crimes Act.
3. These provisions undoubtedly make the application of the statutory minimum sentence more complex than the application of a statutory maximum sentence. Again, however, they do not mean that the statutory minimum sentence is incapable of acting as a meaningful 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. They mean only that there are more steps involved. In summary, if a person was 18 years or more when the "current offence" was committed,[17] 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 - the minimum sentence 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. The sentence is to be determined recognising that yardstick as part of the synthesis of all other relevant factors. If the person has pleaded guilty or cooperated with law enforcement agencies, the court may reduce the sentence below the four year minimum (appropriate for the least worst possible case warranting imprisonment satisfying the qualifications described) in accordance with s 16AAC(3). Contrary again to the appellants' submissions, the reduction in s 16AAC(2) and (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.

1. The principal issue in these appeals concerns the operation of s 16AAB of the Crimes Act 1914 (Cth), which provides for a minimum term of imprisonment, subject to limited exceptions, for offences including possession of child abuse material under s 474.22A(1) of the Criminal Code (Cth). On one approach, the minimum serves a double function: (i) restricting sentencing power to the minimum period of imprisonment, subject to the exceptions; and (ii) providing a yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion. As a yardstick that imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, the minimum term operates to increase the appropriate term of imprisonment generally for that offence. This double function approach has now been adopted generally by trial and intermediate appellate courts throughout Australia.
2. The contrary approach treats the minimum as serving only the first function and therefore operating only as a restriction on power. This different approach, which frees the sentencing judge from the constraint of applying the minimum term as a yardstick, operates only to restrict sentencing power, to increase the term of imprisonment to the minimum term in any case in which the sentencing judge would otherwise have sentenced the offender to less than the minimum term. This alternative approach finds limited support in obiter dicta of some primary sentencing judges and in dissenting reasons in some appellate courts, including in the present appeals.
3. A threshold issue that arises in each of the present appeals concerns whether s 16AAB is applicable to convictions in circumstances in which a transitional provision provides that the "relevant conduct ... engaged in" must take place on or after the commencement of amendments including the insertion of s 16AAB into the Crimes Act. This threshold issue requires consideration of whether the "relevant conduct" concerns only the "conduct" element of the offence within the meaning of s 4.1(1) of the Criminal Code (relevantly here, possession of child abuse material) or whether the "relevant conduct" also includes another element of the offence that is "a circumstance in which conduct ... occurs" within s 4.1(1) (here, using a carriage service to obtain or access the material).
4. A majority of the Court of Appeal of the Supreme Court of the Australian Capital Territory (Kennett and Rangiah JJ) and a unanimous Court of Criminal Appeal of New South Wales (Adamson J; Beech-Jones CJ at CL and R A Hulme J agreeing) held that: (i) the relevant conduct was the possession of child abuse material and, for each conviction, the appellant had possession of the material after the commencement date for s 16AAB; and (ii) the approach that should be followed, which has now been adopted generally by trial and intermediate appellate courts across Australia, is that which treats the minimum term of imprisonment as serving the double function of generally restricting sentencing power as well as providing a yardstick, corresponding with the maximum term of imprisonment, for the exercise of the sentencing discretion.

The central legislative provisions and the two issues

1. 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) ("the Amending Act"). The Amending Act introduced new sentencing provisions[37] including s 16AAB, a provision which, subject to narrow exceptions, created minimum terms of imprisonment for the second or subsequent commission by an offender of certain child sexual abuse offences, including possession of child abuse material.
2. Sub-sections (1) and (2) of s 16AAB of the Crimes Act provide, in effect, that if a person is convicted of a Commonwealth child sexual abuse offence 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 a particular minimum sentence of imprisonment if the person is convicted of an offence listed in the table provided in s 16AAB(2).
3. One of the offences for which provision is made in the table, for which a minimum sentence of four years is provided,[38] is s 474.22A(1) of the Criminal Code. Section 474.22A(1) provides that an offence is committed by a person when four requirements are satisfied: (a) the person has possession or control of material; (b) the material is in the form of data held in a computer or contained in a data storage device; (c) the person used a carriage service to obtain or access the material; and (d) the material is child abuse material.
4. The Amending Act contains a transitional provision, item 3 of Sch 6, which provides:

"(1) Subject to subitem (2), the amendments made by this Part [Pt 1 of Sch 6] 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)."

1. Parts 1 and 3 of Sch 6, which include the minimum term provided for s 474.22A(1), commenced on 23 June 2020 ("the commencement date").[39]
2. The threshold issue that arises on these appeals concerns the meaning of "relevant conduct ... engaged in" in item 3(2) of Sch 6. In particular, if the relevant conduct includes every act that must be done for the purposes of an offence, then the relevant conduct for the purposes of s 474.22A(1) of the Criminal Code is not merely the act of having possession or control of child abuse material (s 474.22A(1)(a)) but also includes the act of using a carriage service to obtain or access the material (s 474.22A(1)(c)). An alternative approach, submitted by the respondent to the appeals, is that the meaning of the words "relevant conduct ... engaged in" should be interpreted consistently with the use of the word "conduct" in the definition of a physical element of an offence in the Criminal Code. On this approach, "conduct" relevantly describes the doing of an act and is distinct from both the result of an act and the circumstances in which an act occurred.[40] The "conduct" in s 474.22A(1) of the Criminal Code in this sense would be merely the act of having possession or control of child abuse material.
3. The principal issue that arises on these appeals concerns the operation of the minimum sentence provision in s 16AAB. Two options have been recognised for that operation. The first option, supported by the respondent to the appeals, treats the minimum as serving a double function as a restriction on power and also as a yardstick for the calculation of the appropriate penalty. In its operation as a yardstick, the minimum sentence functions as the opposite of the maximum sentence. The second option, supported by the appellants, treats the minimum as operating only as a restriction on the power of the sentencing judge. This second option would mean that the typical process for determining a sentence would be largely unchanged, although if the sentencing judge determines that a sentence should be imposed that is lower than the minimum then, subject to any exceptions, the sentence must be increased to the minimum.

1. Mr Hurt pleaded guilty to three offences committed in 2020 involving, respectively, transmitting,[41] accessing,[42] and possessing[43] child abuse material. His conviction for the possession offence, under s 474.22A(1), concerned three categories of child abuse material: (i) 357 photos and seven videos that were also the subject of the transmission offence (involving Mr Hurt transmitting that material to himself); (ii) a further 104 photos that were also the subject of the access offence (involving Mr Hurt accessing material stored on his phone); and (iii) an additional 25 photos and 48 videos that had come into Mr Hurt's possession after the commission of the transmission and access offences.
2. Mr Hurt's conviction for the possession offence was based upon his possession of the child abuse material on 29 July 2020 when a search warrant was executed at his home. But although this act of possession of the child abuse material occurred after the commencement date, 23 June 2020, it was agreed at Mr Hurt's sentencing hearing in the Supreme Court that, in respect of the possession offence, only the group of 25 photos had been obtained or accessed by use of a carriage service after the commencement date.
3. The primary sentencing judge (Mossop J) concluded that the use by Mr Hurt of a carriage service to obtain or access the relevant material involved "conduct" for the possession offence under s 474.22A(1) within the meaning of the transitional provision. His Honour treated the references to "conduct ... engaged in" in the transitional provision as meaning every act that must be done for the commission of the offence. Accordingly, his Honour only applied the minimum sentencing provisions in s 16AAB of the Crimes Act to that aspect of the possession offence concerning the 25 photographs accessed after the commencement date.
4. Despite expressing considerable reservations about the double function approach, the primary sentencing judge adopted that approach to s 16AAB of the Crimes Act as a matter of precedent when sentencing Mr Hurt for the possession offence. But the primary sentencing judge only applied the yardstick function of s 16AAB to the 25 photos in the third category of the possession offence.
5. The starting point for the primary sentencing judge was a sentence of five years' imprisonment, which was reduced for Mr Hurt's plea of guilty. The primary sentencing judge would have made a reduction of 25 per cent (15 months) but considered that s 16AAC(3)(a) restricted the maximum discount for a plea of guilty to a discount of one year. Hence, his Honour imposed a penalty of four years' imprisonment. Mr Hurt's total sentence for the transmission, access and possession offences, with some degree of accumulation, was three days less than four years and ten months' imprisonment, with a non-parole period of two years and one month.

1. On 25 June 2021, Mr Delzotto was convicted on his plea of guilty of two offences concerning child abuse material, respectively offences of accessing,[44] and possessing,[45] child abuse material. The accessing offence concerned six videos and one picture, with two similar offences taken into account under s 16BA of the Crimes Act. The possession offence concerned 142 videos and 2,511 images.
2. Mr Delzotto had previously been convicted of child sexual abuse offences within the meaning of s 16AAB.[46] Before the primary sentencing judge in the District Court of New South Wales (Judge Grant), no issue was raised by Mr Delzotto or the Crown about the operation of the transitional provision. The primary sentencing judge did not refer to this issue and assumed that the terms of s 16AAB of the Crimes Act applied to Mr Delzotto's possession offence under s 474.22A(1) of the Criminal Code.
3. The primary sentencing judge rejected the double function approach to s 16AAB and treated s 16AAB as merely a restriction on power. The starting point for the sentence imposed for the access offence was two years and two months, which was reduced to 18 months' imprisonment after a discount of 25 per cent for Mr Delzotto's plea of guilty and five per cent for his co-operation. The starting point for the sentence imposed for the possession offence was four years, which was reduced to two years and nine months' imprisonment after a discount of 25 per cent for Mr Delzotto's plea of guilty and five per cent for his co-operation. The aggregate sentence imposed for both offences, after partial concurrency, was three years and three months with a non-parole period of two years and two months.
4. On his appeal to the Court of Criminal Appeal of New South Wales against sentence, Mr Delzotto submitted that the Crown could not prove that all of his "relevant conduct" for the purposes of the transitional provision was engaged in on or after the commencement date. In particular, he submitted that the Crown had not shown that the child abuse material had been obtained or accessed by Mr Delzotto on or after 23 June 2020 using a carriage service. The Court of Criminal Appeal held that the "relevant conduct" referred to in the transitional provision was the conduct element of an offence, separate from the circumstances in which the act occurred, which in s 474.22A(1) of the Criminal Code was the possession of child abuse material. Since Mr Delzotto's conviction under s 474.22A(1) was for possession on 1 July 2020, the entirety of the relevant conduct occurred after the commencement date.

The threshold issue: the "relevant conduct" for the purpose of the transitional provision

1. On these appeals, the appellants initially submitted that the "relevant conduct ... engaged in" in item 3(2) of Sch 6 means everything done by each appellant that is necessary for the commission of the offence and, therefore, extends to all aspects of the requirement in s 474.22A(1)(c), namely each appellant's use of a carriage service to obtain or access the child abuse material.
2. An ordinary or natural reading of "relevant conduct ... engaged in" could, in some contexts, involve the broad interpretation advanced by the appellants. In other contexts, an ordinary or natural meaning might be consistent with the narrower Crown submission that the expression is concerned only with acts rather than the results of those acts or the circumstances in which they occur. In the context of the transitional provision, the better meaning of the expression is the narrower one.
3. The narrower meaning is consistent with the closely related provisions of the Criminal Code upon which the Crimes Act operates. Section 4.1(2) of the Criminal Code relevantly defines "engage in conduct" as including to "do an act" and s 4.1(1) provides that "[a] physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs". The effect of s 4.1 is therefore that a distinction must be drawn between acts done by a person and the circumstances in which those acts are done.
4. The requirements of s 474.22A(1)(c) are circumstances rather than conduct. The concern of 474.22A(1)(c) is not to identify the centrally harmful behaviour that s 474.22A(1) is intended to criminalise, namely a person's acts of possession or control of child abuse material (s 474.22A(1)(a)). Rather, para (c) is concerned to provide a source of jurisdiction for the Commonwealth Parliament to enact the offence.[47] Consistently with that jurisdictional nature, absolute liability attaches to s 474.22A(1)(c),[48] and the element of using a carriage service to "obtain or access" the material is presumed to exist if the prosecution proves beyond reasonable doubt the other elements of the offence in s 474.22A(1).[49] As was said in the Explanatory Memorandum to the legislation that introduced s 474.22A:[50]

"The use of a carriage service provides the relevant connection to the legislative power under section 51(v) of the Australian Constitution ... [A]bsolute liability as outlined in section 6.2 of the Criminal Code will apply to paragraph 474.22A(1)(c) as it is a particular physical element, being the jurisdictional element of the offence. The jurisdictional element of the offence is not central to the conduct or the culpability for the offence."

1. In oral argument, the appellants appeared to accept that the requirement in s 474.22A(1)(c) of the use by a person of a carriage service was not "conduct" but was merely a circumstance that provided the constitutional basis of power for the provision. But the appellants submitted that the use of the carriage service "to obtain or access the material" was conduct and not merely a circumstance. There is no justification for a bifurcation of s 474.22A(1)(c) in this way. The "use[] [of] a carriage service to obtain or access the material" is a composite expression that creates a single circumstance for jurisdictional reasons. If the provision were bifurcated, it would be hard to see any role for a separate element of obtaining or accessing material that had to be proved in addition to proving that the material was (intentionally) possessed. Indeed, the possession offence in s 474.22A(1) contrasts with a separate offence concerning "access" in s 474.22(1)(a)(i). As the Court of Appeal of the Supreme Court of Victoria said in Allison (a pseudonym) v The Queen,[51] the possession offence in s 474.22A differs from the access offence because, unlike the possession offence, for the access offence "the Crown must prove that the accused intentionally accessed the material and was reckless as to whether it was child abuse material".
2. The requirements of s 474.22A(1)(c) were the only elements of s 474.22A(1) that were not proved or accepted to have occurred or applied in relation to the appellants' offending on or after the commencement date. In each case, the conduct comprising possession or control of the child abuse material was proved or accepted to have occurred after that date. It follows that, by reason of the transitional provision, s 16AAB was capable of application to both appellants for the commission of the possession offences.

The principal issue: minimum sentences under the Crimes Act

1. The immediate context in which the principal issue of interpretation arises, concerning the minimum sentences provided by s 16AAB, is 16A(1) of the Crimes Act, which provides:

"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."

1. Section 16A(2) provides for a list of matters that the court must take into account if relevant and known to the court. Those matters include, by s 16A(2)(g), the fact of a plea of guilty, the timing of the plea and the degree to which that fact and the timing resulted in a benefit to the community, or any victim of, or witness to, the offence. They also include, by s 16A(2)(h), any co-operation with law enforcement agencies in the investigation of the offence or of other offences.
2. This typical regime for sentencing is modified by ss 16AAA and 16AAB, which provide for minimum sentences of imprisonment for certain offences. The section relevant to these appeals is s 16AAB, which provides for minimum sentences for certain second or subsequent offences where the person has previously been convicted of a child sexual abuse offence. Since each of the appellants had been convicted previously of a child sexual abuse offence, and since the "current offence" of which they were convicted under s 474.22A(1) was a "child sexual abuse offence" within s 16AAB(1), the terms of s 16AAB(2) applied:

"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."

1. The intended operation of the amendments to the Crimes Act was summarised in detail in the Second Reading Speech of the Amending Act. During the Second Reading Speech, after debate, the Attorney-General drew an analogy between the new minimum sentences and the "mandatory minimum penalties for people-smuggling offences [which] impose a mandatory minimum non-parole period as well as a mandatory minimum head sentence".[52] The Attorney-General quoted from the decision of this Court in Magaming v The Queen:[53]

"In Markarian v The Queen, the plurality observed that '[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks'. The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick."

The Attorney-General added, "[t]hese mandatory minimum penalties, consistent with the principle that I've just read from, set a sentencing yardstick for judges sentencing Commonwealth child sex offenders".[54]

1. At the time that s 16AAB was enacted, the yardstick approach to minimum penalties had been adopted consistently throughout Australia in relation to the "people-smuggling offences", to which the Attorney-General referred, in the Migration Act 1958 (Cth).[55] Although the Supreme Court of the Northern Territory initially departed from that approach,[56] that Court had subsequently followed the rest of Australia.[57]
2. Despite the clarity of the parliamentary intention to adopt the minimum sentence as a yardstick as manifested in the Second Reading Speech, and despite the consistency throughout Australia regarding the same yardstick approach as taken under the Migration Act, the appellants submitted that the intent of the Commonwealth Parliament was that the minimum sentences in s 16AAB should serve only to restrict sentencing power and not to operate as a yardstick. The appellants relied on four submissions: (i) an asserted lack of legislative purpose to increase sentences generally; (ii) the presence of the note to s 16A(1) and a sentence in the Explanatory Memorandum; (iii) the existence, and operation, of exceptions to the prescribed minimum sentences; and (iv) the principle of legality. Each of these submissions can be addressed in turn. None detracts sufficiently, if at all, from the clear and unequivocal parliamentary intention manifested in the Second Reading Speech.

(i) A lack of legislative purpose to increase sentences generally

1. The appellants submitted that Parliament could not have intended to adopt the prescribed minimum sentences as a yardstick, since the effect of a minimum yardstick for an offence would be a tendency to increase sentences generally for the prescribed offences and, the appellants asserted, there was no evidence of a legislative purpose to increase sentences generally for the prescribed offences.
2. The appellants' assertion of a lack of a legislative purpose to increase sentences generally for the offences prescribed by s 16AAB is contradicted by the Second Reading Speech of the Attorney-General. During that speech, the Attorney-General remarked that the government was "fed up with lenient sentencing practices that fail to protect the community from child sex offenders".[58] Later in the speech he referred to the need to "shift sentencing practices" and "send a clear message that society will not tolerate sexual crimes against children and to ensure that criminal penalties appropriately reflect the gravity of the offending".[59]
3. The unlikelihood of a lack of legislative purpose to increase sentences generally is 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. "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."[60] If the minimum sentences prescribed did not serve as a yardstick then 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. The first offender might be sentenced to, say, two years' imprisonment and the second offender might be sentenced to four years' imprisonment. Without the minimum sentences serving as a yardstick, both sentences would be four years' imprisonment. As Allsop P said of a similar example in Karim v The Queen,[61] "[t]he statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice".

(ii) The note to s 16A(1) and the sentence in the Explanatory Memorandum

1. The appellants submitted that the note to s 16A(1) of the Crimes Act and a sentence in the Explanatory Memorandum supported the general sentencing practice without any imposed minimum sentence as a yardstick and with s 16AAB imposing only a subsequent limit on sentencing power.
2. The note to s 16A does not support this submission. The note provides merely that "[m]inimum penalties apply for certain offences - see sections 16AAA, 16AAB and 16AAC". The note follows a typical practice of alerting the reader to other provisions. It says nothing about the application of provisions such as s 16AAB or the relationship between s 16AAB and s 16A.
3. The same is true of the sentence in the Explanatory Memorandum relied upon by the appellants. That sentence provides that "despite section 16A(1), there will be applicable minimum penalties for certain Commonwealth child sex offences under proposed sections 16AAA, 16AAB and 16AAC".[62] The sentence says nothing about how the minimum penalties modify the general sentencing practice that would otherwise have applied under s 16A(1).

(iii) The existence and scope of exceptions to the prescribed minimum sentences

1. Senior counsel for Mr Hurt and for Mr Delzotto submitted that the prescribed minimum sentences could not be a yardstick in the way that a maximum sentence is a yardstick because there are exceptional situations in which the court is not bound by the minimum sentence.
2. The first circumstance asserted to be exceptional was the class of cases in which the court exercises its powers under s 19B, s 20(1)(a) or s 20(1)(b) of the Crimes Act. The position of the appellants in relation to s 20(1)(a) was not uniform. In Mr Hurt's written submissions it was suggested that a recognizance release order under s 20(1)(a) was an exception to the application of the minimum penalty provisions. But in oral submissions, senior counsel for Mr Delzotto conceded that s 16AAB "would operate to override a capacity to make an order under [s] 20(1)(a)". For the reasons below, these issues need not be resolved on these appeals.
3. The exercise of a power under s 19B to discharge an offender without proceeding to conviction is not an exception to s 16AAB(2) at all. It is simply a circumstance where the provision does not apply. Section 16AAB(2) will only apply if the requirements of s 16AAB(1) are satisfied, including that the person is convicted.[63] The existence of circumstances where the prescribed minimum sentence under s 16AAB does not apply reveals nothing about the proper approach to be taken when it does apply.
4. The same is true of the exercise of power under s 20(1)(a), which concerns the court's power to order an immediate release on conditions without passing sentence. If no sentence is passed then the provision is not an exception to a sentencing requirement of a minimum sentence. Hence, it is unnecessary on these appeals to consider any further the operation of s 20(1)(a) or to resolve any tension between the operation of s 20(1)(a) and s 16AAB.
5. As to s 20(1)(b), this provision empowers the court to sentence a person to imprisonment but order release upon security, including immediate release in exceptional circumstances for a person convicted of Commonwealth child sex offences.[64] But this provision is concerned with the point of release, not with the sentence imposed. It does not alter the prescribed minimum sentence. Hence, it is not necessary on these appeals to consider the detail of the operation of s 20(1)(b), when read together with ss 19AF(1) and 19AC in relation to sentences imposed by reference to s 16AAB.

1. The principle of legality is a long-established principle of statutory interpretation which generally requires that a court be satisfied of a clear parliamentary intention before concluding that legislation abrogates common law rights, privileges or liberties.[66] The principle is one that will "vary with the context in which it is applied".[67] The required clarity increases the more that the rights are "fundamental" or "important" and the greater the abrogation of the rights to which the interpretation would lead.[68] But the principle of legality is ultimately only a principle of interpretation, concerned with the intention that Parliament is taken to have. It has therefore been said that the principle of legality "at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked".[69]
2. The sentencing context in which the appellants seek to rely on the principle of legality in these appeals is one in which, on any interpretation, the purpose of the provisions is to reduce liberty. The principle still has some force against an interpretation that treats the prescribed minimum sentences as yardsticks leading generally to a greater average sentence and greater abrogation of liberty.[70] But that limited force in the context of s 16AAB cannot overcome the clear and unequivocal legislative intention that the prescribed minimum sentences serve as a yardstick.

1. Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 2(1), table items 7 and 9. See also s 2(1), table item 1, which identifies the commencement date as 22 June 2020 for ss 1 to 3 and anything not otherwise covered in the commencement table. ↑

2. Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth), s 2(1), table item 4. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 24 July 2019 at 823. ↑

Australia, House of Representatives, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Explanatory Memorandum at 2 [3]. ↑

Australia, House of Representatives, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Explanatory Memorandum at 4 [17] (emphasis added). ↑

Australia, House of Representatives, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Explanatory Memorandum at 4 [18] (emphasis added). ↑

Australia, House of Representatives, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Explanatory Memorandum at 43 [144] (emphasis added). ↑

(2005) 228 CLR 357 at 372 [31]. Similar statements appear in Muldrock v The Queen (2011) 244 CLR 120 at 133 [31] and Magaming v The Queen (2013) 252 CLR 381 at 396 [48], 413‑414 [104]. ↑

(2005) 228 CLR 357 at 372 [30], cited in Magaming v The Queen (2013) 252 CLR 381 at 396 [48]. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 2019 at 4163. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2445. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2445. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2445. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2448. ↑

eg, R v Pot (unreported, Supreme Court of the Northern Territory, 18 January 2011), adopting the approach favoured by the appellants; cf Bahar v The Queen (2011) 45 WAR 100 and Karim v The Queen (2013) 83 NSWLR 268, adopting the approach favoured by the Crown. ↑

Dui Kol v The Queen [2015] NSWCCA 150 at [12]. ↑

Dui Kol v The Queen [2015] NSWCCA 150 at [13]. ↑

Dui Kol v The Queen [2015] NSWCCA 150 at [14]. ↑

Lowe v The Queen (1984) 154 CLR 606; Green v The Queen (2011) 244 CLR 462. ↑

30. Australia, House of Representatives, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, Explanatory Memorandum at 46 [197]. ↑

Garth v The Queen (2016) 261 A Crim R 583 at 588 [24]. ↑

cf R v Hurt [No 2] (2021) 294 A Crim R 473 at 490 [75], 494 [91]‑[93]; Hurt v The Queen (2022) 18 ACTLR 272 at 292‑293 [79]‑[85]. ↑

Bropho v Western Australia (1990) 171 CLR 1 at 18. ↑

eg, Webb v O'Sullivan [1952] SASR 65 at 66; Boulton v The Queen (2014) 46 VR 308 at 340 [140]. ↑

eg, Karim v The Queen (2013) 83 NSWLR 268 at 282‑283 [45]. ↑

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6. ↑

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6 item 9. ↑

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 2(1), Sch 6 items 7-9. ↑

46. A subsequent challenge by Mr Delzotto to this point was rejected by the Court of Criminal Appeal and was not reagitated in this Court. ↑

47. See Constitution, s 51(v) and Criminal Code (Cth), Dictionary (definition of "carriage service") read with Telecommunications Act 1997 (Cth), s 7 (definition of "carriage service"). ↑

50. Australia, House of Representatives, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Explanatory Memorandum at 43 [144]. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 2019 at 4163. ↑

(2013) 252 CLR 381 at 396 [48] (footnotes omitted), quoted in Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 2019 at 4163. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 2019 at 4164. ↑

See Bahar v The Queen (2011) 45 WAR 100 at 113 [58]; R v Karabi (2012) 220 A Crim R 338 at 345 [35]; R v Latif; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 278 at [20], [22]; R v Selu; Ex parte Director of Public Prosecutions (Cth) [2012] QCA 345 at [29]; R v Nitu [2013] 1 Qd R 459 at 473 [36]-[37]; Director of Public Prosecutions (Cth) v Haidari (2013) 230 A Crim R 134 at 144 [40]; Karim v The Queen (2013) 83 NSWLR 268 at 282 [44]. ↑

See R v Pot (unreported, Supreme Court of the Northern Territory, 18 January 2011). ↑

R v Deacon (2019) 282 A Crim R 329 at 337 [17]. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2445. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 15 October 2019 at 4162-4163. ↑

Wong v The Queen (2001) 207 CLR 584 at 608 [65] (emphasis in original). ↑

62. Australia, House of Representatives, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, Explanatory Memorandum at 46 [197]. ↑

Australia, House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2446; see also Australia, House of Representatives, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, Explanatory Memorandum at 48 [210], [213]. ↑

Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437-438. See also Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 307-311 [307]-[314]. ↑

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 328 [19], citing Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284 [36]. See also Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310 [312]. ↑

Stephens v The Queen (2022) 273 CLR 635 at 653 [34]. See also Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at 623 [159]. ↑

Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310-311 [314]. ↑

North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 582 [11]. ↑