Hurt v The Queen [2022] ACTCA 49 | Case summary | Zoe

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Hurt v The Queen [2022] ACTCA 49

[2022] ACTCA 49

Court of Appeal (ACT)|2022-09-30|Before: Loukas-Karlsson, Kennett and Rangiah JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2022-09-30

Before

Loukas-Karlsson, Kennett and Rangiah JJ

Catchwords

APPEAL – CRIMINAL LAW – Appeal against
sentence – statutory interpretation – where Commonwealth mandatory
minimum sentencing regime applies
– whether sentencing judge erred in

Source

Original judgment source is linked above.

Catchwords

APPEAL – CRIMINAL LAW – Appeal againstsentence – statutory interpretation – where Commonwealth mandatoryminimum sentencing regime applies– whether sentencing judge erred inapplying the Bahar approach – ground not made outAPPEAL – CRIMINAL LAW – Appeal againstsentence – child abuse material – whether sentencing judge erred inconsideration of when ‘relevantconduct’ occurred for purposes oftransitional regime – ground made out – offender resentenced

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Authorised report: (2022) 18 ACTLR 272

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL Case Title: Hurt v The Queen

Citation: [2022] ACTCA 49

Hearing Date: 18 May 2022

Decision Date: 30 September 2022

Before: Loukas-Karlsson, Kennett and Rangiah JJ

Decision: See [202]

Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – statutory interpretation – where Commonwealth mandatory minimum sentencing regime applies – whether sentencing judge erred in applying the Bahar approach – ground not made out APPEAL – CRIMINAL LAW – Appeal against sentence – child abuse material – whether sentencing judge erred in consideration of when ‘relevant conduct’ occurred for purposes of transitional regime – ground made out – offender resentenced

Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Allison (a pseudonym) v the Queen [2021] VSCA 308; 362 FLR 445 Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; 199 CLR 321 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Bahar v The Queen [2011] WASCA 249; 45 WAR 100 Bayu v The Queen [2013] HCATrans 144 Bin Radimin v The Queen [2013] NSWCCA 2230; 235 A Crim R 244 BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157; 162 FCR 234 Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; 180 FCR 11 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR DDP v Haidari [2013] VSCA 149; 230 A Crim R 134 Dui Kol v The Queen [2015] NSWCCA 150 Eldridge v Western Australia [2020] WASCA 66 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268 LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103; 402 ALR 297 Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 Magaming v The Queen [2013] HCA 40; 252 CLR 381 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Miller v The Queen [2016] HCA 30; 359 CLR 380 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 Nguyen v Nguyen (1990) 169 CLR 245 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 R v Abbas [2019] WASCA 64; 277 A Crim R 105 R v Delzotto [2021] NSWDC 325 R v Delzotto [2022] NSWCCA 117 R v Jousif [2017] NSWSC 1299; 325 FLR 108 R v Karabi [2012] QCA 47; 220 A Crim R 338 R v Latif [2012] QCA 278 R v McCall [2022] NSWDC 78 R v Nitu [2012] QCA 224; [2013] 1 Qd R 459 R v Pham [2015] HCA 39; 256 CLR 550 R v Pot (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011) R v Selu [2012] QCA 345 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 149 CLR 355 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 The Queen v A2 [2019] HCA 35; 269 CLR 507 Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 Woodside Energy Ltd v Zaghloul [2015] FCAFC 135; 234 FCR 198

The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail. Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied. The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise “category” of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the “bottom line”) is not dictated by the presence or absence of one or more mitigating factors. Thirdly, as this court has previously recognised, a mandatory minimum term of imprisonment can create complications for reductions in sentence for mitigatory factors. For example, on occasions it will not be possible to allow a usual discount for a mitigatory factor, such as a plea of guilty: Teakle v Western Australia (2007) 33 WAR 188 [19]. As Wheeler JA explained in Atherden v Western Australia [2010] WASCA 33: [I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason. However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability [42]–[43].

In Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268 (Karim), the NSW Court of Criminal Appeal dealt with several appeals involving a challenge to s 233C of the Migration Act. The Court also dealt with a challenge to the correctness of the Bahar approach, and, relevantly, a submission was advanced on behalf of the appellant that Bahar was plainly wrong, justifying departure from it by the Court. Allsop P (as his Honour then was) set out his reasoning at [44] to [45]. Those paragraphs are extracted in full in Kennett and Rangiah JJ’s reasons. It is, however, worth noting the independent reason that led Allsop P (as his Honour then was) to prefer the Bahar approach at [45]: There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], “[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect” (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.
The NSW Court of Criminal Appeal subsequently followed Bahar in Bin Radimin v The Queen [2013] NSWCCA 2230; 235 A Crim R 244 (Bin Radimin) and Dui Kol v The Queen [2015] NSWCCA 150 (Dui Kol).
In the 2015 NSW Court of Criminal Appeal decision of Dui Kol, Adams J (with whom Hoeben CJ at CL and McCallum J, as her Honour then was, agreed) found that NSW was bound by the Bahar approach due to the decision of the Court in Karim. However, Adams J (with McCallum J agreeing, Hoeben CJ expressly not agreeing with this aspect of the judgment) disagreed with the “correctness” of the approach while finding that the Court was bound to apply it: [11]. I will discuss this later in my reasons.
Earlier this year, the NSW Court of Appeal delivered judgment in R v Delzotto [2022] NSWCCA 117 (Delzotto). This was the first time that an intermediate appellate court delivered judgment on the question of applying the Bahar approach to ss 16AAA, 16AAB and 16AAC of the Crimes Act. There was no argument advanced that Bahar was plainly wrong, as the appeal proceeded on the basis that the relevant provisions in the Migration Act and the Crimes Act were distinguishable. This was rejected.

Their Honours continued, stating that the reasoning in Bahar “has been an established part of the Australian legal landscape for more than a decade, has been applied in several jurisdictions, and has withstood at least one previous direct challenge”. That factor, in their Honours’ view, was relevant to their consideration of whether the principles in Bahar are plainly wrong.
I do not agree that this is a case where the underlying principles have formed an established part of the Australian legal landscape for the following reasons.
While it is true that Bahar was decided over a decade ago, the principles in Bahar have rarely been considered in detail by intermediate courts of appeal. Unlike the Migration Act cases considered by the Full Federal Court in FAK19, there are comparatively fewer opportunities for intermediate appellate courts to consider federal sentencing principles. There are fewer still where a court of appeal has considered in detail mandatory minimum penalties.
A consideration of whether earlier decisions have rested on “principle carefully worked out” and “had been otherwise acted upon” necessarily involves the question of whether reasoning has been considered, and the extent of this consideration, by later courts. In my view, this is the proper interpretation of Allsop CJ’s remarks in FAK19 at [10] (referred to above at [30]).
This judgment is the second time that an intermediate court of appeal has considered the meaning of ss 16AAB and 16AAC of the Crimes Act. As stated earlier, the NSW Court of Criminal Appeal was the first intermediate court of appeal to deliver a decision considering the applicability of the Bahar approach to these sections, in Delzotto.
Another relevant factor is also the number of times a decision has been relied upon. For example, in FAK19 the Court was considering a challenge to several previous Full Court decisions which had been relied upon in hundreds of lower court cases.
That approach is consistent with the reasoning of the Full Federal Court in LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103; 402 ALR 297 in which the Court held that the decision of a majority of a previous Full Court in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147; 180 FCR 11 (Brookfield) was plainly wrong.
This is in contrast to a consideration of only the length of time that a decision has stood. This factor alone says little about the quality of the reasons underlying the principles upon which a decision is founded.
In Woodside Energy Ltd v Zaghloul [2015] FCAFC 135; 234 FCR 198, in finding that a previous decision was not plainly wrong, the Court provided a “further important consideration” in that case at [42]:

In contrast, in Bahar, the Supreme Court of Western Australia was the first appellate court to interpret the relevant mandatory minimum sentencing provisions in the Migration Act. It is also worth noting that those provisions were the first federally legislated mandatory minimum sentencing provisions. As such, the above consideration does not apply. Indeed, this factor tends against an interpretation of plainly wrong which is unduly restrictive on this Court.
A review of the cases that have followed or adopted the reasoning in Bahar supports the view that it is not an established part of the Australian legal landscape. This is the case for the following reasons.
First, only one appellate court was asked to grapple with a submission that Bahar was plainly wrong, being the NSW Court of Criminal Appeal in Karim. Of the decisions that have followed Bahar, most have done so without an independent consideration of the principles of statutory interpretation underlying the decision, as no submissions were advanced that Bahar was plainly wrong (as I addressed earlier in these reasons).
Second, some of the Courts which have followed Bahar have levelled criticisms at the underpinning reasoning of McClure P. I note the disquiet amongst judges exists at both district and appellate court levels: see, for example, R v McCall [2022] NSWDC 78 at [52] and [58]; Dui Kol). I will consider those criticisms in more detail later in these reasons.
I pause to note that those concerns indicate that even amongst judges who are not satisfied that Bahar is plainly wrong, there are judges who are concerned with aspects of the reasoning underpinning the decision (including the sentencing judge in this case). In my view that is a matter relevant to an assessment of whether the case forms an established part of the Australian legal landscape.
Turning to the other matter identified by Allsop CJ. In my view, the principles outlined in Bahar are not “carefully worked out”. While the Court in Bahar relied upon well settled principles of statutory construction in its reasons, as several decisions have emphasised, the Court’s reasoning rests on an assumed equivalence between maximum and minimum penalties. There is nothing in the text, structure or context of the Migration Act or the Crimes Act that supports that equivalence. It is a false equivalence that undermines the reasoning of the Court in Bahar. I discuss this further below.
A further observation is worth noting. In my view, the nature of a case is a relevant factor to the meaning of plainly wrong.
As Greenwood J stated in BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157; 162 FCR 234 at [86]:

Again, I agree with those observations. The only clear requirement imposed is that a sentence of “at least” a certain period is imposed. There is nothing in that text that suggests the minimum penalty must only be applied to offending of the least serious category. While the comments in Dui Kol are obiter, they offer a useful interpretative approach to what, as I have outlined above, is a question of statutory construction. While it is true that the observations are not binding on this Court, that does not mean that regard may not be had to those comments which reflect disagreement with the Bahar approach from two then-judges of the NSW Supreme Court.
Similarly, there is no statement in the explanatory memorandum for s 233C (or the provisions relevant to this appeal) that suggests that the legislature intended that a mandatory minimum is to be treated the same as a maximum penalty.
Nothing in the text, context or purpose of s 233C of the Migration Act states or requires that the mandatory minimum sentence is reserved for the least serious category offending. Nor is there any inference in the relevant explanatory memorandum that such an approach was intended in relation to the section.
It is evident to me that the reasoning of the Bahar approach relies upon an assumption which is not available from a proper approach to the text of the mandatory minimum provision in the Migration Act. I arrive at the same conclusion with regard to the equivalent provision contained in the Crimes Act, for reasons I will elaborate on below.
The equivalence between maximum and minimum penalties which underlies the Court’s reasoning in Bahar cannot be justified by the statutory language used. Therefore, the error can only be described as clear or patent, rather than merely a difference of view as to meaning (FAK19 at [18], quoting Treloar at 603 [28]–[29]). Further, this legislation has caused ‘unintended and perhaps irrational consequences’ (FAK19 at [18] quoting Treloar at 603 [28]) by resulting in broader proportionate increases to sentences that are not supported, in my view, by the statutory text.
It follows that in my view the reasoning in Bahar is plainly wrong and ought not be followed by this Court. For the same reason, the subsequent line of cases that have followed and applied Bahar should also not be followed by this Court.

In my view, the “mischief” to which the legislation is directed is the imposition of “inadequate” sentences by sentencing judges. That mischief is, in turn, addressed by requiring sentencing judges to impose a sentence of at least the specified period. This is not the approach adopted in Bahar.
The respondent submitted that Parliament ought to be presumed to have been aware of the Bahar approach in drafting ss 16AAB and 16AAC of the Crimes Act and this Court ought to find that the legislature intended that the Bahar approach would apply to those sections. This draws on the presumption that Parliament is aware of judicial rulings. I do not accept the respondent’s submission for the following reasons.
First, the presumption that Parliament is aware of judicial rulings is a weak one. Second, there is no reference in the explanatory memorandum to Bahar or any of the cases that have followed it. Third, the presence of the interpretive note inserted into s 16A(1) tends against the construction in Bahar as noted before. Fourth, and most importantly, to the extent that the presumption has any weight, in my view, the far more important presumption in the context of this appeal is the principle of legality. As I will now turn to, in my view, that principle tends against this submission. Absent clear words, this Court should not assume that the Bahar approach was intended.
In accordance with the principle of legality, were Parliament to have intended a general proportionate increase in sentences, Parliament would have done so only by clear and express language demonstrating unambiguous legislative intent. In my view, neither the text of the section nor the explanatory memorandum supports that interpretation.
The principle of legality operates as a bulwark against interference with fundamental rights in the absence of a clear expression of legislative intent. The principle of legality is, as the sentencing judge outlined at [91], a significant matter in favour of the appellant’s interpretation.
The strength and importance of the principle of legality depends on the nature of the right infringed by the legislation. As outlined by Edelman J in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [55]:

I agree with her Honour’s reasoning above. There is nothing in the text of s16AAB, nor in the act as a whole, which expressly indicates that Parliament intended the judicial function of sentencing to be “bent” as opposed to “bound”. As counsel for the offender correctly submitted, clear and unambiguous language is required if such a limit on judicial discretion is intended by Parliament. Such language is absent in the current text of s 16AAB.
For the reasons outlined above, in the result, the approach to s 16AAB requires a sentencing judge to undertake an instinctive synthesis and come to their own view as to the appropriate sentence. If that sentence is less than the required minimum, that judge must then impose the statutory minimum as a starting point. To that starting point, and if relevant, the sentencing judge must then apply any relevant discount for a plea of guilty or assistance as required by s 16AAC.
I pause here to note that the respondent submitted that such an approach is “awkward”. I agree. It is awkward for a sentencing judge to have to assess their sentence as against a set minimum (in this case for example, a minimum of four years) and then turn to consider any discount for a plea of guilty or assistance to authorities which can then lower the sentence in accordance with s 16AAC. This is not the usual approach.
Indeed, such an approach is particularly “awkward” in the case of sentencing federal offenders as there is no general requirement at a federal level that a sentencing judge specify the quantum of the discount awarded for a plea of guilty (leaving aside the open issue as to whether state legislation on this point is picked up and applied by s 68 of the Judiciary Act 1903 (Cth)).
The respondent further submitted that this awkwardness tends against the interpretation I have found above. I do not accept that submission. Section 16AAC clearly creates some “awkwardness” for judges, including that it now in effect mandates the statement of the discount for a plea of guilty for some federal offences. That awkwardness is, however, a product of the statutory text and is not a matter that is relevant to the meaning of the text.
Further, it is not apparent to me how the awkwardness is resolved were the Bahar approach followed. “Awkwardness” on either approach is an inevitability of the statute’s operation.

The background facts are set out in the reasons of the primary Judge at [5]–[22].
Briefly, the transmission offence arose from the offender having downloaded a number of files including 357 images and seven videos to his mobile phone between 26 and 31 May 2020. The primary Judge described this as causing the material “to be transmitted to himself”. The access offence arose from the offender having accessed another 104 images, which were stored on a directory in his phone, on 4 and 5 June 2020.
The possession offence, which gives rise to the legal issues in this appeal, arose from the material that was found to be stored on the offender’s phone when a search warrant was executed at his house on 29 July 2020. That material comprised the 461 photos and seven videos covered by the transmission and access offences, together with 25 images and 48 videos that had come into the offender’s possession more recently.
It was an agreed fact that the 25 images referred to in the previous paragraph (the new images) had been obtained or accessed on or after 23 June 2020, while all of the other material had been obtained or accessed before that date. The significance of the date will emerge shortly.
The primary Judge assessed the objective seriousness of the offences by reference to the numbers and character of the images and videos. His Honour assessed the transmission offence as being in the mid-range of objective seriousness (at [31]), the access offence as being in the mid-range but at the lower end of that range (at [32]), and the possession offence as being in the mid-range (at [30]). However, as to the possession charge, complexities arose from the application of a minimum sentence provision that came into effect on 23 June 2020. Those complexities give rise to the main issues in this appeal.
Ultimately, the primary Judge sentenced the offender to a term of imprisonment of 15 months on the transmission offence; a further term of 15 months’ imprisonment on the access offence; and a term of four years’ imprisonment on the possession offence. These terms were partially concurrent with each other. The term of imprisonment for the possession offence was to end on 28 February 2025, the term for the access offence on 28 June 2025 and the term for the transmission offence on 28 October 2025.
Both the offender and the Crown appealed. Each appeal alleges a distinct error by the primary Judge in applying the minimum sentencing provisions referred to earlier, and thus raises an issue of statutory construction. These issues will be considered next. The offender also argues that the sentence was manifestly excessive, while the Crown argues that it was manifestly inadequate. These contentions will be addressed after the questions of construction have been resolved.

16A Matters to which court to have regard when passing sentence etc.— federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Note: Minimum penalties apply for certain offences―see sections 16AAA,16AAB and 16AAC. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order—to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.

Turning to the more detailed issues of statutory construction, McLure P then said, at [53] –[54]: The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail. Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the “just and appropriate” sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a “just and appropriate” sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.
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, R v Latif [2012] QCA 278 and R v Selu [2012] QCA 345.
Chronologically, the next decision that should be noted is that of the New South Wales Court of Criminal Appeal in Karim v The Queen [2013] NSWCCA 23; 83 NSWLR 268 (Karim), which also concerned people smuggling offences under the Migration Act. The provisions considered in the cases mentioned above had been replaced by new offence-creating provisions, and a new mandatory minimum sentence provision (in relevantly similar terms to former s 233C) in s 236B. The Court in Karim was constituted by five Judges, including the Chief Justice and the President of the Court of Appeal, to hear several similar appeals which involved a challenge to the validity of the minimum sentence provision. The constitutional challenge was unsuccessful, and was also unsuccessful on a further appeal by one of the offenders to the High Court (Magaming v The Queen [2013] HCA 40; 252 CLR 381 (Magaming)).
The Court of Criminal Appeal in Karim also considered a direct challenge to the correctness of Bahar. That argument proceeded on the understanding that the decision would be departed from only if the Court was persuaded that it was plainly wrong. Allsop P, with whom three other members of the Court agreed on this point, reasoned as follows at [44]–[45]:

It was argued by Mr Stratton SC and Ms Manuell SC on behalf of Mr Bayu that Bahar was plainly wrong, justifying departure from it by this Court. In my view, no argument was put that undermined or threw into sufficient doubt the reasoning of McLure P on what is, essentially, a question of statutory construction. For an Australian intermediate court of appeal to depart from the decision of another Australian intermediate court of appeal, the nature and quality of the asserted error in the earlier Court’s decision must be one which leaves the later court convinced that the earlier decision is wrong (not as a question of patency or obviousness, but as a question of conviction): see generally Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at 561 [274]–[295]. The most, in my view, that can be said here is that the view of Riley CJ (and Mildren J and Kelly J) 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: Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595 at 602–603 [27]–[28], read with Gett v Tabet at 563 [283]. There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], “[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect” (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.

Essentially, (and with unfeigned respect to the eminent judges who have thought otherwise) it is a mistake to import into s 233C a great deal more than the section, in terms, requires. There is nothing in the language of the section which suggests, let alone requires, that it be understood as applying the minimum sentence to cases in the least culpable category of seriousness. The section says nothing about seriousness. It simply requires a sentence to be imposed of at least the specified length. Its ordinary meaning is that, whatever the degree of culpability which might, under the generally applicable law of sentencing, lead to a lesser sentence, the minimum mandatory sentence is to be imposed. A maximum penalty must be understood as meaning that, however grave the culpability of the offender might be, no greater penalty than the maximum may be imposed and is reserved for cases falling into the most culpable category. But there is no logical imperative which requires the minimum penalty to be applied only to cases falling into the least culpable category. The argument from symmetry, though beguiling, is by and large not a useful interpretative tool, legislation being what it is. The supposition that Parliament intended this outcome is a fiction and inconsistent with the Explanatory Memorandum. Furthermore, as is obvious, the current interpretation of the section artificially distorts the sentences upwards. If the considerations which apply in every other serious criminal case would lead to a sentence exceeding the minimum, there is no logical reason why that sentence should be harsher merely because, had the applicable sentence been less than the minimum, it would need to be increased to the minimum level. Accepting that the minimum sentence expresses the legislature’s assessment of seriousness, the section does not, in terms, require more to be done than to impose the mandatory minimum sentence where otherwise the sentence would be less harsh. The present construction erects unnecessary jurisprudence on what is, essentially, a simple arbitrary intervention in the sentencing process. I say “arbitrary” because the minimum sentence takes no account of the actual circumstances of the offence (except, of course, for its essential elements) or the personal situation of the offender; it is, plainly enough, designed as a deterrent with all other considerations to be ignored. The advantage of the Pot interpretation is that it does least violence to fundamental principles of criminal justice, which measures punishment, with regard to the statutory benchmarks, certainly, but necessarily also by reference to the particular circumstances of the offence and of the offender, both of which may vary very significantly from case to case. It also maintains as much as possible the important principle that offenders are not sentenced by the legislature but by independent courts.

More detailed arguments against the acceptance of the Bahar approach were set out by the primary Judge in the present case at [77]–[93]. However, his Honour properly considered himself bound to apply that approach, being unable to find a principled basis to distinguish the earlier authorities (at [76], [94]).
The offender contends that Bahar should not be followed. He accepts that, in this Court, that step can only be taken if the Court considers that Bahar is “plainly wrong”.
That acceptance reflects a well-established principle of comity between courts of equivalent status in the Australian Federation when dealing with questions concerning the construction of a Commonwealth statute or a principle of the common law or equity. The “plainly wrong” standard was recently considered by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [2]–[13], where his Honour expanded on the observations he had made in Karim. Referring to earlier cases including Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 and Gett v Tabet [2009] NSWCA 76; 254 ALR 504, his Honour made two important points.
First, the term “plainly wrong” bespeaks the quality of error and the degree of conviction as to its existence, not simply whether it is patent or obvious. While we agree with that observation we would add that, nevertheless, conviction that a decision is “plainly” wrong will usually require more than having a preference—even a strong one—for a contrary argument. Something distinctly and materially wrong needs to be identified in the reasoning leading to the earlier decision, such as an authority, statutory provision or interpretive principle not considered or a demonstrable logical misstep. Matters of emphasis or weight will rarely be enough. Further, because one’s own reasoning tends to be unduly persuasive, a court that is asked to consider whether an earlier decision is plainly wrong should be cautious about undertaking its own analysis of the question from first principles. The proper question to ask is whether there is something wrong with the reasoning under challenge that makes it unacceptable for that reasoning to stand as an authority binding on lower courts.
Second, a decision as to whether to depart from earlier authority does not depend only on the jurisprudential nature and character of any error perceived in it. Other factors may intrude. His Honour identified, as examples of such factors, whether the earlier decision rested on a principle worked out in a series of cases and whether it has been otherwise acted upon.
As to the existence of error, while reasonable arguments can be put in favour of the Pot approach, we do not think that the reasoning in Bahar can be said to be plainly wrong. Indeed, we are of the view that the approach in Bahar is the preferable one in relation to the provisions under consideration in that case. We take this view for the following reasons:

We note that Bahar was distinguished, and the Pot approach applied, by the District Court of New South Wales in R v Delzotto [2021] NSWDC 325 (Delzotto). Delzotto, like this case, concerned the interaction between ss 16A, 16AAB and 16AAC of the Crimes Act in sentencing an offender for an offence under s 474.22A. While judgment was reserved in the present appeal, the New South Wales Court of Criminal Appeal handed down its judgment on appeal from that case, holding that there was no proper basis to distinguish Bahar (R v Delzotto [2022] NSWCCA 117, [71]–[91] (Adamson J, Beech- Jones CJ at CL and Hulme J agreeing)).
In the present case, in his consideration of the Bahar reasoning, the primary Judge referred at [87]–[90] to the extrinsic materials for the 2020 Amending Act, even though these had no relevance to the circumstances of Bahar itself. However, his Honour did not consider the present case distinguishable from Bahar, and senior counsel for the offender disavowed any attempt to distinguish Bahar in the appeal.
On the other hand, the Commonwealth Director of Public Prosecutions, who appeared for the Crown, advanced arguments as to why the Bahar approach should be regarded as the correct one in the context of Part 1B of the Crimes Act even if the adoption of that approach in Bahar itself was incorrect.
First, it was submitted that the inclusion of sub-ss 16AAC(2) and (3) are an indication that the legislature intended the minimum head sentence and the maximum penalty to be the relevant yardsticks, subject to the specific exemption provided in sub-s (2). That subsection expressly permits a court to impose a sentence of imprisonment of less than the period specified in the relevant part of s 16AAA or s 16AAB, but only if the court arrives at that lesser sentence as a result of applying a discount because the person has pleaded guilty or has cooperated with law enforcement agencies. Subsection (3) sets out the discounts that may be applied as a result of one or other of these factors or a combination of them. These provisions operate relatively seamlessly if the interaction between s 16A and ss 16AAA and 16AAB is understood on the basis of the Bahar approach, but somewhat awkwardly if the Pot approach is applied:

Secondly, the Director referred to authority for the proposition that, where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489, [15] (Fletcher) (French CJ, Hayne Kiefel, Gageler and Keane JJ). As noted in both of these cases, the validity of this presumption as a guide to legislative intention has been questioned, and it tends to be relied on only where there is something in the nature of the legislation or the legislative history to indicate an awareness on the part of the legislature of earlier authority on the meaning of the language that is being re-enacted. However, that is not necessarily a high hurdle. In Fletcher, for example, the Court gave some weight to the presumption on the basis that it was simply “difficult to imagine” that the earlier authorities “were not known to those involved in the field as interpretive decisions of considerable significance and likely to be applied nationally” (at [16]).
In the 2020 Amending Act, the Parliament inserted provisions of a kind whose effect on the sentencing discretion under s 16A had been established by a body of jurisprudence at intermediate appellate level. The new provisions use the same language as the provisions whose effect on the sentencing discretion had been considered in the earlier cases. Arguably, the particular form of words used in the minimum sentence provisions is not critical—rather, the issue is how s 16A(1) is to be understood as operating in response to an offence that has both maximum and minimum sentences—so that the case is not really one of re-enactment but one of consistent application of s 16A. On the other hand, however, the manner in which each minimum sentence provision interacts with s 16A(1) is an aspect of the operation of that provision, so that, where the legislature has used the same language as was used in provisions whose effect has been judicially considered, the presumption may have some work to do.
The basis for attributing actual knowledge about the Bahar line of cases to any individual legislator is slender. The only Parliamentary material referred to by the Director in this connection was Bills Digest (Digest No 53 of 2019–20, 19 November 2019), which analysed the Bill for the 2020 Amending Act. Bills Digests are prepared by the Parliamentary Library to assist Members and Senators in their consideration of Bills before the Parliament. As noted by the Director, Bills Digest No 53 refers at p 33 to the decision of the High Court in Magaming. However, this was in a part of the Digest dealing with questions of constitutional power; and, as noted earlier, the present issue was not before the High Court in that case and is only hinted at in the reasons of the Justices. The section dealing with the particular provisions under consideration here does not mention the Bahar line of cases or express any understanding one way or the other on the question of construction currently before the Court. Nor could it be said that minimum sentences are a topic frequently legislated upon, so that Members and Senators can be presumed to be acquainted with how particular forms of words are interpreted.
However, the statement in Fletcher at [16] strongly suggests that it is enough if the case law on the construction of a particular form of words is well known to persons working in the relevant field including those responsible for developing and drafting legislation. To similar effect, in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309, [81] (a passage quoted in Fletcher), McHugh J relied on an observation that:

These observations cohere with statements of high authority to the effect that legislative purpose is to be identified “objectively”, rather than searching for the subjective intentions or understandings of any particular person (eg, Certain Lloyd’s Underwriters at [25]). On this understanding, the presumption that Parliament uses words consistently with the way the same words have been interpreted by the courts provides some support for the construction advanced by the Director. As in Fletcher, it is difficult to imagine that the language of the draft provisions in the Bill for the 2020 Amending Act was not developed by people familiar with the effect given to identical language in Bahar and the cases applying it.
There are, therefore, coherent reasons for concluding that ss 16AAA and 16AAB were intended to interact with the courts’ sentencing discretion in the manner identified in Bahar, even if the reasoning in that case proved on further consideration to have been incorrect. In any event, as explained above, we think that reasoning is correct; or, at least, it is not flawed to an extent that would justify this Court in departing from it.
In the result, there was no error in the conclusion of the primary Judge at [94] that the Bahar approach was to be applied. Crown’s issue 1: the effect of the application provision
The possession offence to which the offender pleaded guilty involved a single count alleging that, on 29 July 2020, he had possession of child abuse material and that he used a carriage service to obtain the material. There is no doubt, therefore, that the offender was in possession of child abuse material (being all of the images and videos referred to at [114] above) on a date after the commencement of s 16AAB. However, it was also an agreed fact that only 25 of the images (and none of the videos) had come into his possession after the commencement date. These circumstances gave rise to an issue before the primary Judge concerning the operation of item 3 in Part 1 of Schedule 6 to the 2020 Amending Act.

Underlying these submissions was a difference of view between the offender and the Crown as to what was “the relevant conduct” for the purposes of item 3(2). That issue will be addressed below. Our present concern is to identify the context in which that issue arises and the consequences of the competing positions. These matters appear to have been approached in the Court below in a manner that does not accord with the statutory text.
His Honour accepted the submissions of the offender and concluded, therefore, that “the increased penalties only apply to the offence insofar as it involved the 25 additional photographs” (at [106]). Consistently with the way the submission had been described, His Honour then treated this conclusion as affecting the assessment of the objective seriousness of the offending. Having initially assessed the possession charge as being in the mid-range of objective seriousness (at [30]), his Honour adjusted that assessment to the low end of the mid-range (at [108]). This part of the reasoning is brief and we have had some difficulty understanding how, as a matter of legal analysis, the application of a minimum sentence requirement to part of the conduct involved in an offence can lead to an adjustment of the objective seriousness of that offending.
Section 16AAB prescribes the minimum penalty that the court must impose for an “offence” of which a person has been “convicted”. In our view, it is simply not capable of applying in relation to part only of an offence. If such an outcome were textually available, the consequence would seem to be that the minimum penalty would apply in respect of part of the offending conduct (here, it was suggested, possession of 25 photographs) and the offender would need to be sentenced separately, and additionally, for the remainder. No party suggested that the provision was intended to operate in that way. Correspondingly, as we have noted above, the application provision in item 3(2) of Schedule 6 to the 2020 Amending Act gives s 16AAB operation in respect of a conviction, not in respect of particular conduct that forms part of an offence.
The submission that was acceded to by his Honour was, therefore, inconsistent with the terms of the Act.
In argument on the appeal, senior counsel for the offender supported the position taken below, but indicated (unsurprisingly) that his client would welcome a result in which s 16AAB did not apply to the possession offence at all. In further written submissions he embraced more fully the proposition that the application provision is “binary”. The Director pointed out that this position had not been advanced by the offender below, but accepted in her further written submissions that the Court would ultimately have to give effect to what it considers to be the correct construction of the provisions.
This is sufficient to mean that the Crown’s appeal should be upheld and the sentencing discretion should be exercised afresh. The available outcomes of the point that had been raised about the operation of the application provision were that s 16AAB did not apply (in which case the gravity of the offending was to be assessed on the basis that there was no fixed bottom end to the range of potential penalties), or that s 16AAB did apply (so that the gravity of the offending as a whole—which his Honour had assessed as being in the mid-range—was to be assessed on the basis that the range of potential penalties extended from four years to 15 years). The approach taken by the primary Judge does not accord with either of these outcomes.
However, for the sentencing process to be completed, it will be necessary to determine which of those outcomes is the correct one; that is, whether s 16AAB applies or does not apply in relation to the possession offence in this case. That, as we have noted, depends on how the reference to “the relevant conduct” in item 3 is to be construed. We turn to that issue next.

Identification of the “relevant conduct” in this case depends on an understanding of s474.22A of the Criminal Code, which is as follows. 474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service. (1) A person commits an offence if: (a) the person has possession or control of material; and (b) the material is in the form of data held in a computer or contained in a data storage device; and (c) the person used a carriage service to obtain or access the material; and (d) the material is child abuse material. Penalty: Imprisonment for 15 years. (2) Absolute liability applies to paragraph (1)(c). Note: For absolute liability, see section 6.2. (3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person: (a) Obtained or accessed the material; and (b) Used a carriage service to obtain or access the material. Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
There are three broad approaches that need to be considered.
The Crown emphasised, correctly, that item 3(2) applies in relation to the 35 diverse offences referred to in the table in s 16AAB. The phrase “the relevant conduct” needs to be given a construction that allows item 3(2) to apply sensibly across a range of offences, which may involve a variety of elements and may or may not involve specific proof by the prosecution of particular elements. In substance, the position of the Crown was that the “relevant conduct” is the conduct that is criminalised by the relevant offence-creating provision. That involves analysis of the elements of the offence, in the light of the overarching provisions of Part 2.2 of the Criminal Code.
Section 3.1 of the Criminal Code provides that an offence “consists of physical elements and fault elements”. Section 4.1 provides as follows in relation to the physical elements of an offence:

At [41], the Court expressly rejected a submission that the element in s 474.22A(1)(c)— that the accused used a carriage service to obtain or access the material—was a “conduct” element rather than a “circumstance” element, although the Court went on to say that this conclusion was not necessary for its decision.
Applying the reasoning in Allison (so the submission went), the only “conduct” criminalised by s 474.22A is the actual possession of the relevant material. This was, therefore, the “relevant conduct” for the purposes of item 3(2). The final step is that the offender engaged in this conduct (that is to say, he possessed all of the relevant material) after the relevant commencement date of 23 June 2020.
The submissions for the offender began by emphasising s 4F of the Crimes Act, which provides that, where a provision or law of the Commonwealth increases the penalty for an offence, the penalty as increased applies only to “offences committed after the commencement of that provision”. However, not only is that general principle capable of being overridden by specific provisions, but it begs the question when the relevant offence is properly said to have been “committed”.
The offender’s argument is broadly consistent with that of the Crown in that it refers to provisions in Part 2.2 of the Criminal Code for an understanding of what is meant by “conduct”. The argument parts company with that of the Crown when it reaches s 474.22A. In the offender’s submission, the element in sub-s (1)(c) is a “physical element of circumstance in which conduct occurred”.
If it is given that characterisation, the use of a carriage service to obtain the material is an aspect of the “conduct” that must be established in order to prove the offence, and thus part of the “relevant conduct” of which item 3(2) speaks.
As initially advanced by the offender, the next step would appear to involve identifying particular child abuse material and considering whether, for each item of such material, the conduct occurred before the relevant commencement date. For reasons explained above, we do not think that the offence can be disaggregated in this way. However, the offender’s argument can also lead to a different conclusion. That is that, when item 3(2) refers to the “relevant conduct”, it speaks of all of the conduct necessary to establish the offence that has been charged and proven (or the subject of a guilty plea). In this case, because the offender faced a single charge of possessing all of the material, the condition in item 3(2) could be met only if all of that material had been obtained by the use of a carriage service after the commencement date.
The third approach is that adopted by the primary Judge. His Honour did not find it necessary to engage in the characterisation of physical and fault elements required by the Criminal Code. He reasoned that s 474.22A contains, as an element of the offence, that “the person used a carriage service to obtain or access the material”; that that involves conduct having occurred in the past; and that that is sufficient to bring it within the “relevant conduct” that is “engaged in” for the purposes of item 3(2) (at [103]). The next step in his Honour’s reasoning was that the expression “conduct engaged in” requires that all of the conduct required to constitute the offence was engaged in after the relevant commencement date (at [104]). (Item 3(2) does not use the expression “conduct engaged in”. Rather, it requires that “the relevant conduct was engaged in” on or after a particular day. We take his Honour to be referring to the expression “relevant conduct”, which can plausibly be read as referring to all of the conduct required to constitute the offence.)
The subject matter of item 3 is convictions for particular Commonwealth offences, all of which are created by provisions of the Criminal Code. The Criminal Code is, as its name suggests, a code. As well as creating offences, in a way that spells out with some care the elements of each offence, it includes in Chapter 2 a set of principles that assist in identifying what needs to be proved in order for criminal guilt to be established.
The elements of an offence are divided into “physical elements” and “fault elements”. For a person to be found guilty of an offence, it is necessary to prove each of the relevant physical elements, together with one of the applicable fault elements (if a fault element is required) for each of those physical elements: s 3.2. As to physical elements, as we have noted, a distinction is drawn in s 4.1 between “conduct” and “a circumstance in which such conduct, or a result of conduct, occurs”. That distinction matters because, if the law creating an offence does not specify a fault element for a physical element, the relevant fault element for conduct will be intention, whereas the relevant fault element for a circumstance will be recklessness: s 5.6. Section 474.22A itself is an example of a provision where, for some physical elements, fault elements are not specified.
The Criminal Code and the Crimes Act should, so far as possible, be read together as a harmonious body of law. The Crimes Act exhibits an awareness of the Criminal Code by, for example, expressly applying the principles in Chapter 2 of the Criminal Code to the offences that it creates: s 3BA. We therefore consider that a provision such as item 3, whose enactment postdates that of the Criminal Code, should be understood to use basic expressions such as “conduct” consistently with their usage in the Criminal Code. On that basis, we would read the expression “the relevant conduct” in item 3(2) as referring to the acts or omissions comprised in each of the conduct elements of the relevant offence.
The elements of the offence created by s 474.22A are in sub-s (1). It is not in doubt that para (a) describes an element of conduct. Nor is it in doubt that paras (b) and (d) describe elements of circumstance. The contest between the parties is as to the nature of para (c).
It is significant that, whereas para (a) is expressed in the present tense, para (c) is expressed in the past tense. This indicates that the offence is committed when the accused does the thing referred to in para (a) (provided the relevant fault element is present, and the relevant circumstances are also present). Possession or control of material of the relevant kind is the conduct that is criminalised. Paragraph (c) refers to something that has happened before, and lies in the background to, the conduct described in para (a). The text of sub-s (1) therefore favours the view that para (c) describes an element of circumstance rather than of conduct.
Two aspects of the statutory context support this view.

It was also submitted for the Crown that para (c) is a “jurisdictional element”, in that the purpose of its inclusion is only to bring the provision within Commonwealth legislative power. It is no doubt usually (although possibly not always) the case that an element included only to attract Commonwealth legislative power will be characterised as one of circumstance. For example, in the offence of interference with telecommunications facilities under s 474.6 of the Criminal Code, the fact that the relevant facility is owned by an entity engaged in telecommunications activity is described as a physical element of circumstance. However, here, the element of circumstance that attracts Commonwealth power is that the obtaining or accessing of material happened by way of a carriage service. That tells us nothing about whether the obtaining or accessing itself is to be regarded as an element of conduct or circumstance.
The analysis of s 474.22A that we prefer is consistent with the view expressed in Allison at [40]–[41]. Although that view does not form part of the ratio of the case, the point was evidently the subject of argument and the conclusion reached by the Court should therefore not be lightly departed from. The same view, however, was recently endorsed in R v Delzotto [2022] NSWCCA 117 at [60]–[66] and does appear to have been a necessary step in the reasoning in that case. We would only depart from that reasoning if persuaded that it was clearly wrong.
For these reasons, the analysis of s 474.22A propounded by the Crown is to be preferred. The “conduct” element of the offence is the possession or control of the relevant material. Further, possession of the material at any time is sufficient: there is no stipulation that the material needs to have been in the possession of the accused for any particular period. For the offence to be made out, it was sufficient for the Crown to prove (or for the offender to admit) that the offender possessed the material on 29 July 2020 as alleged in the indictment, so long as the elements of circumstance (going to the nature of the material, and the means by which it had been obtained) were also proved or admitted. The “relevant conduct” for the purposes of item 3(2) (ie, the acts or omissions sufficient to constitute the conduct element of the offence) was thus “engaged in” on 29 July 2020, after the relevant commencement date. This is the case notwithstanding that some of the same conduct, involving most of the same material, had also been engaged in before that date.
The result is that s 16AAB applied to the conviction for the possession offence, so as to require the court to impose a head sentence of at least four years imprisonment (subject to the possible effect of s 16AAC).

We agree with the primary Judge’s analysis of the objective seriousness of the offending, including the conclusions expressed at [30]–[32] (which we have summarised above). In the light of our conclusions on the Crown’s issue 1 above, we do not downgrade the seriousness of the possession offence in the way that his Honour did at [107]. We also agree with his Honour’s analysis of the offender’s subjective circumstances at [33]–[44].
Noting the minimum sentence of four years for the possession offence and the maximum of 15 years, and taking into account the volume and nature of the material in the possession of the offender, we would adopt a starting point of six years rather than five (cf the primary Judge at [120]). Like his Honour, we would be inclined to apply a 25 per cent discount for the plea of guilty.
Applied to a six year starting point, that discount does not reduce the sentence below the statutory minimum of four years. We read the expression “reduce a sentence” in s 16AAC(3) as referring to reducing a sentence below the applicable minimum sentence pursuant to s 16AA(2) (since, normally, taking into account a guilty plea is part of the synthesis required under s 16A(1) and (2) rather than a distinct statutory process of reducing a sentence). On that reading, the limit that s 16AAC(3)(a) imposes on the extent of the reduction is not engaged here.
We would not disturb the head sentences for the transmission and access offences which the primary Judge determined at [122]–[123], but we approach the issue of cumulation differently. As noted by his Honour, the 104 photographs involved in the access charge were a subset of the material involved in the possession charge. His Honour considered that a degree of cumulation was appropriate because of “the limited way in which the 104 photographs are to be taken into account in assessing the objective gravity of the possession charge”. That premise reflects reasoning which, as explained above, we regard as erroneous. We would therefore make the sentences for the possession and access charges almost wholly concurrent. His Honour appears to have relied on the same reasoning in relation to the transmission charge. Again, we prefer a larger overlap on the basis that the material involved in the transmission offence overlaps to a large extent with the material involved in the possession offence (which has been fully taken into account in assessing the objective seriousness of that offence).
We agree with the primary Judge’s reasons for setting a relatively short nonparole period (at [126]) and will follow the same course, taking into account the longer aggregate head sentence that we have arrived at.
The orders of the Court will be:

Hurt v The Queen [2022] ACTCA 49

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