McGregor v R

Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 R v Clarke [2013] NSWCCA 260 R v Delzotto (2022) 298 A Crim R 483; [2022] NSWCCA 117 R v Glasheen [2022] NSWCCA 191 R v Hurt (No 2) [2021] ACTSC 241; (2021) 294 A Crim R 473 R v Jackson (1998) 72 SASR 490 R v Large [2021] NSWDC 429 R v Stiller (2023) 14 QR 38; [2023] QCA 51 Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50 Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47 Tenenboim v R [2024] NSWCCA 1 The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12 The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50 Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; [2017] HCA 7 Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 Texts Cited: Johnson, P "Aggregate sentencing 12 years on" (2023) 35 Judicial Officers' Bulletin 1 New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) Category: Principal judgment Parties: Andrew Stuart McGregor (Applicant) Crown (Respondent) Representation: Counsel: T Quilter and C O'Neill (Applicant) J Gleeson SC and C Tran (Respondent)

Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2021/283147 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 October 2022 Before: Herbert DCJ

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Andrew McGregor pleaded guilty to four federal offences relating to child sexual abuse. He was sentenced to an aggregate term of imprisonment of 11 years and 6 months by Herbert DCJ commencing from 5 October 2021. One of the offences (Count 1) was an offence which carried a mandatory minimum sentence of 7 years under s 16AAA of the Crimes Act 1914 (Cth). On appeal Mr McGregor challenged the sentence imposed by the sentencing judge on the basis that her Honour misconstrued s 16AAC of the Crimes Act and used a wrong formula when applying a discount for the guilty pleas and Mr McGregor's cooperation with authorities. The Crown conceded error in this regard. The Crown contended, with respect to resentencing Mr McGregor, that it was not open to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) in respect of Count 1 as to do so would be inconsistent with s 16AAA of the Crimes Act, and more generally, because it argued that aggregate sentencing under s 53A is not available for the sentencing of any federal offences. The latter submission was contrary to the position previously put to this Court by the Commonwealth Director of Public Prosecutions in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556, which position was accepted by the Court in that case and has been acted upon innumerable times since. The issues to be determined were: (1) whether the sentencing judge misconstrued s 16AAC and used the wrong formula when applying the relevant discounts (ground 1); (2) whether aggregate sentencing under s 53A can be applied to federal offences generally; (3) whether imposing an aggregate sentence in relation to Count 1 would be inconsistent with s 16AAA of the Crimes Act; and (4) the sentence to be imposed on resentence. The Court allowed the appeal, resentenced Mr McGregor and held:

The effect of s 16AAC

1. Section 16AAC is ambiguous. It can be construed as the sentencing judge did, namely as imposing a maximum discount for a plea of guilty and/or for cooperation with law enforcement agencies as a percentage of the minimum term for the offence in question specified in ss 16AAA or 16AAB. On that approach, if the specified minimum term was 7 years, the appropriate pre-discount sentence was 20 years, and the judge considered a 50% discount should be allowed for a guilty plea and cooperation, the maximum discount would be 3 years 6 months. Alternatively, it can be construed as setting a floor below which the term of imprisonment cannot go but as not otherwise addressing how any such discounting is to occur. On the example just given, the maximum discount that could be given would be 10 years, where s 16AAC was understood to set a minimum floor of 3 years 6 months. The second approach is the preferable construction as a matter of text, context and purpose: at [21]-[33]. The sentencing judge thus erred. Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485, referred to.
2. Section 16AAC does not itself require the sentencing judge to impose a discount in percentage terms for those factors, though the sentencing judge may well wish to do so. The percentages are specified in the provision only for the purpose of identifying the minimum floor: at [34].

Whether aggregate sentencing can be applied to federal offences generally 3. The plainly wrong/compelling reason threshold for the Court overturning one of its own decisions only applies where the point in question was in dispute in the previous case. As the availability of aggregate sentencing was agreed upon in Beattie, that threshold is not applicable here: [55]-[56]. Batak v R [2024] NSWCCA 66; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39; CSR Limited v Eddy (2005) 226 CLR 1; 2005 [HCA] 64; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37, applied. 4. Section 68(1) of the Judiciary Act 1903 (Cth) is capable of picking up s 53A of the CSP Act: at [92]. Section 68(1) applies State law as federal law by analogy to the State provision, which involves a potential extension of the law's operation. This may require some translation of the provision being applied: at [61]. There is no conflict between Pt 1B of the Crimes Act and s 53A(2)(b) of the CSP Act. The matters raised in Pt 3 of the CSP Act, as referred to in s 53A(2)(b), are only required to be taken into account if and to the extent that they are relevant, and where they are inconsistent with what is provided in Pt 1B of the Crimes Act they would not be relevant: at [74]. The purpose of the words in parentheses in s 53A(2)(b) was to emphasise that the court is to indicate the sentence that would otherwise have been imposed for each offence, taking account of whatever sentencing factors are applicable to sentencing for the offence in question: at [76]. When properly construed as a matter of text, context and purpose, s 53A(2)(b) requires the court to undertake on an indicative basis the same sentencing exercise for each offence as would have otherwise occurred: at [79]. Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298; Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556, referred to. 5. The purpose of s 53A(2)(b) is better understood, at a higher level of generality, as requiring a court to indicate the sentence it would otherwise have imposed per se: at [80]. However, even if the purpose of the provision was understood to be indicating a sentence which would have been imposed under State law, the process of translation would apply to mean the court must indicate a separate sentence for a federal offence consistently with federal sentencing principles. This does not change the essential meaning of the provision: at [81]. Huynh; Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59; Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50; Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19, referred to. 6. Section 19(2) of the Crimes Act, dealing with cumulative and concurrent sentences, is not inconsistent with s 53A of the CSP Act. This is emphasised by the fact that s 4K(4) of the Crimes Act itself provides for aggregate sentencing for federal offences dealt with summarily: at [83]-[87]. Assuming (without deciding) that the provisions in Pt 1B Div 4 of the Crimes Act provide an exhaustive statement as to the setting of non-parole periods for federal offences, that does not undermine the availability of s 53A as regards setting head sentences: at [90]. Patel v R [2022] NSWCCA 98; (2022) 366 FLR 314; Tenenboim v R [2024] NSWCCA 1, considered, Putland v The Queen (2004) 218 CLR 174; [2004] HCA 59, referred to.

Whether an aggregate sentence on Count 1 would be inconsistent with s 16AAA 7. If an aggregate sentence of at least the minimum term is imposed for offences in the tables in ss 16AAA and 16AAB, the requirement in those provisions that at least such a term has been imposed for that offence is satisfied. The fact that the sentence is also imposed in punishment of other offences does not alter the fact that the aggregate sentence is imposed in punishment of the listed offence: at [97]. As sentences of imprisonment operating concurrently may be imposed for offences addressed by ss 16AAA-16AAC, there is no clash between the purpose and effect of those provisions and the possibility of aggregate sentencing: at [100]. 8. In some circumstances, the operation of s 19(2) of the Crimes Act may be affected by subs (5)-(7) of s 19, which create "a presumption in favour of cumulative sentences" where a person is sentenced for multiple child sex offences or equivalent offences in a State or Territory. However a court may depart from that requirement if persuaded of a particular criterion (under subs (6)), therefore the provisions do not preclude aggregate sentencing: at [99].

Resentencing 9. Mr McGregor was resentenced to an aggregate term of imprisonment of 10 years and 9 months commencing on 5 October 2021 and expiring on 4 July 2032 with a non-parole period of 7 years and 6 months expiring on 4 April 2029.

JUDGMENT

1. THE COURT: Andrew McGregor pleaded guilty to four federal offences relating to child sexual abuse and asked that a further federal offence on a schedule be taken into account. Count 1 carried a mandatory minimum sentence of 7 years. Mr McGregor was sentenced on 28 October 2022 by her Honour Herbert DCJ to an aggregate term of imprisonment of 11 years and 6 months with a non-parole period of 8 years, commencing from 5 October 2021.
2. The details of the charges and the indicative sentences are set out below: Count Offence / Provision of the Code Assessment by Maximum Penalty Starting Point Before Discount Indicative Sentence Sentencing Judge of Objective Seriousness Between 11 August 2021 and 14 September 2021 did engage in persistent sexual abuse of a child outside Australia 30 years 5 years 1 by committing an offence under s 272.9(1) of the Criminal Code on 2 or more separate occasions in relation to the same child. Within the lower range, but not at the lowest level. (7 years minimum) 8 years 10 months Section 272.11(1)(c) Criminal Code (Cth). 2 Between 2 August 2021 and 4 October 2021 caused material to be transmitted to himself using a carriage service, that material being child abuse material. Just within the lower level of objective criminality. 15 years 4 years 2 years Section 474.22(1) Criminal Code (Cth). 9 months 3 On or about 5 October 2021, did possess or control material, being child abuse material, in the form of data contained in a data storage device, and the material was obtained or accessed using a carriage service. Well within the mid-level. 15 years 6 years 4 years Section 474.22A(1) Criminal Code (Cth). 2 months 4 Between 2 August 2021 and 4 October 2021 did engage in conduct in relation to a child with the intention of procuring the child to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. Well within the mid-level. 15 years 7 years 4 years Section 272.14(1) Criminal Code (Cth). 10 months s16BA Sch On or about 17 September 2021, used a carriage service to transmit an indecent communication to a girl he believed was under the age of 16 years. N/A 10 years -- Taken into account for Count 4. Section 474.27A(1) Criminal Code (Cth).

1. Mr McGregor now seeks leave to appeal against the aggregate sentence on the following ground: Ground 1: For Count 1, the sentencing judge used a wrong formula when applying the discount for Mr McGregor's plea of guilty and assistance to authorities as a result of misconstruing the statute.
2. This single ground of appeal raises a question of law about the proper operation of s 16AAC(2)-(3) of the Crimes Act 1914 (Cth). The Crown concedes error on the ground. That concession should be accepted for the reasons set out below. Leave to appeal should thus be granted, the appeal allowed and Mr McGregor re-sentenced.
3. In undertaking the task of re-sentencing, however, the Crown contends that this Court cannot impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) in respect of Count 1 because to do so would be inconsistent with s 16AAA of the Crimes Act and further, more generally, because it now contends that aggregate sentencing is not available under s 53A for any federal sentencing. The issue turns on whether s 53A can be picked up and applied pursuant to s 68(1) of the Judiciary Act 1903 (Cth). We conclude below that the Crown's submissions should not be accepted. Aggregate sentencing under s 53A of the CSP Act is available for federal offences, including for that set of offences addressed by ss 16AAA and 16AAB of the Crimes Act.
4. In what follows we first address Ground 1, then consider the aggregate sentencing issue, before turning to what sentence should be imposed on Mr McGregor upon re-sentencing.

Ground 1

1. Section 16AAA is in the following terms: 16AAA Minimum penalties for certain offences Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.
2. The section then contains a table setting out particular minimum sentences for identified offences against the Criminal Code which relate in one way or another to child sexual abuse. Section 16AAB is in similar terms to s 16AAA but deals with where the offender has earlier been convicted of a "child sexual abuse offence" (as defined in s 3(1)). It contains its own table of minimum penalties for identified offences against the Criminal Code.
3. Here, s 16AAA was applicable to Count 1 only. Section 16AAB did not apply as Mr McGregor had not previously been convicted of a child sexual abuse offence. The mandatory minimum sentence for Count 1, being an offence against s 272.11(1)(c) of the Criminal Code, was 7 years. Her Honour indicated a starting point for that count, before any discount, of 8 years imprisonment. Her Honour determined that it would be appropriate to apply a 25% discount for a guilty plea and a 5% discount for cooperation by making admissions, totalling 30%. The admissions her Honour identified related only to Count 3, however she applied the 30% discount to the indicative sentences for each of the four counts, including Count 1. No criticism has been made of this approach on appeal.
4. Her Honour was confronted with two possible approaches to the operation of s 16AAC(2) and (3) with respect to applying the 30% discount to Count 1. Those provisions are in the following terms: 16AAC Exclusions and reductions - minimum penalties … Reduction of minimum penalty (2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following: (a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty; (b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence. (3) If a court may reduce a sentence, the court may reduce the sentence as follows: (a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty - by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence - by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (c) if the court is taking into account both of the matters in paragraphs (a) and (b) - by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.

Consideration

1. Ground 1 of the appeal turns on the interpretation of s 16AAC(3). The issue falls to be determined by reference to the text, context and purpose of the provision.
2. Sections 16AAA-16AAC impose a minimum penalty regime for certain federal offences relating to child sexual abuse. For presently relevant purposes, s 16AAC identifies the circumstances that may permit a reduction in the sentence below the mandatory minimum penalty, as well as the permissible extent of that reduction. Subsection (2) addresses when a sentence below the specified minimum may be imposed and subs (3) addresses by how much this can be done.
3. Subsection (2) permits a court to "impose a sentence of imprisonment of less than the period specified in column 2" (ie the minimum penalty) only "if the court considers it appropriate to reduce the sentence" in either or both of two circumstances. The first, addressed in par (a), is "the person pleading guilty", implicitly referring to the offence in question. The second, under par (b), is "the person having cooperated with law enforcement authorities in the investigation of the offence or of a Commonwealth child sex offence" (language which is reiterated in subs 3(b)). Thus a relevant discount below the minimum may be given for cooperation in the investigation of the particular offence or of a "Commonwealth child sex offence" (as defined in s 3(1)) but not for investigation of other offences. The phrasing differs from that appearing in s 16A(2)(h) of the Act, which refers to cooperation in the investigation of "the offence or of other offences".
4. It can be noted in passing here that Count 3 - being the offence for which her Honour identified cooperation - was a "Commonwealth child sex offence" as defined in s 3(1) as it is an offence against a provision in Subdivision D of Division 474. It was therefore open to her Honour to discount the indicative sentence for Count 1 on that basis.
5. Subsection (2) begins with words of authorisation: "A court may impose a sentence of imprisonment of less than the period specified…". The reference to "sentence" in that phrase is to the sentence of imprisonment ultimately imposed. Further on in the chapeau the subsection uses this language: "only if the court considers it appropriate to reduce the sentence because of …". The sentence referred to in that phrase is the starting point sentence that would have been imposed but which is to be reduced (to the sentence to be imposed) because of either or both of the matters in pars (a) and (b).

The availability of aggregate sentencing

1. The Crown, represented by the Commonwealth Director of Public Prosecutions (CDPP), submitted that an aggregate sentence under s 53A of the State CSP Act cannot be imposed on resentence of Mr McGregor. He submitted to the contrary. The parties agreed that the dispute hinged on whether s 53A is picked up and applied in this case by s 68(1) of the Judiciary Act. The Crown argued that it could not be, on two bases.
2. First, it said that aggregate sentences were not available where s 16AAA of the Crimes Act applied. In this case, that argument would only prevent imposition of an aggregate sentence with respect to Count 1, as the other counts were not subject to that section (s 16AAA is quoted again below at [93]). More broadly, the Crown argued that aggregate sentencing could not be applied to federal offences at all in this State because of the terms of s 53A(2)(b) of the CSP Act.
3. The Crown's second argument is the more far-reaching and it is appropriate to consider it first. Before doing so it is necessary to say something about each of the following topics: the nature of aggregate sentences; the legal context in which the issues have now been raised by the CDPP; and the operation of s 68 of the Judiciary Act.

Aggregate sentences

1. Section 53A is within Pt 4 Div 1 of the CSP Act. The Division is entitled "Setting terms of imprisonment". The section provides as follows: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
2. Section 44(2A)-(2C) of the CSP Act deals with setting a non-parole period for an aggregate sentence. One non-parole period may be set. It is not necessary for the court to state indicative non-parole periods for particular offences, except for those offences for which there is a standard non-parole period (see s 54B(4)-(5)). Section 49(2) provides that the maximum aggregate sentence cannot be longer than the sum of all the possible maximum sentences, nor shorter than any minimum period specified for any of the offences.
3. These provisions were introduced by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW). Section 53A has been amended once since its introduction in a non-material way. Aspects of the operation of the provision were usefully summarised and explained by R A Hulme J in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]; see more recently The Honourable Peter Johnson, "Aggregate sentencing 12 years on" (2023) 35 Judicial Officers' Bulletin 1.

Putland, Beattie and the CDPP's change of position

1. Various occupants of the position of CDPP have waxed and waned in relation to whether aggregate sentencing can apply to federal offences charged on indictment. The issue first arose at appellate level in R v Jackson (1998) 72 SASR 490. The then Director, appearing personally, submitted that s 68 of the Judiciary Act could not pick up the South Australian aggregate sentencing provision. A majority of the Full Court of the South Australian Supreme Court rejected the submission, holding that the provision could apply to federal offences charged on indictment (Perry J at 511-513, Nyland J agreeing at 514, Millhouse J dissenting at 501-503).
2. In Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 the defendant-appellant submitted that aggregate sentencing under the Northern Territory aggregate sentencing provision conflicted with the provisions of the Crimes Act such that it could not be picked up by s 68. This time both the CDPP and the Commonwealth Attorney-General intervening argued that it could be picked up. The High Court, by majority, upheld the application of the Territory aggregate sentencing provision to federal offences pursuant to s 68. The appellant had argued that s 4K(3)-(4), within Pt 1A of the Crimes Act, implicitly precluded aggregate sentencing for matters charged on indictment. Those subsections (as interpreted) expressly permit a court to impose an aggregate sentence for charges dealt with summarily. The appellant also argued that Pt 1B of the Crimes Act, supplemented by the common law, dealt exhaustively with sentencing for federal offences such as to leave no room to pick up aggregate sentencing from Territory law. The majority held that s 4K(3)-(4) did not convey a negative implication excluding aggregate sentencing for matters charged on indictment. Moreover, that provision "denies any proposition that Pt 1B 'covered a field' as an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences" (Gummow and Heydon JJ at [53], see also at [50], Gleeson CJ at [15], and Callinan J at [121]).
3. In Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 the then Director, appearing personally, argued that the same result should apply with respect to the New South Wales provision. The accused did not argue to the contrary. Price J, relevantly speaking for this Court, accepted the joint position put by the parties: [145] The Commonwealth Director submitted that based on the decision in Putland, aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director's submission. [146] The Commonwealth Director's submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.

Section 68 of the Judiciary Act

1. Section 68(2) of the Judiciary Act grants State and Territory courts exercising jurisdiction with respect to identified criminal matters "like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". All of the offences in this proceeding are federal offences. The District Court thus was, and this Court is, exercising federal jurisdiction as granted by s 68(2).
2. Section 68(1) provides for certain State and Territory laws (ie statutes) to be picked up and applied in relation to such matters. It states as follows: The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
3. The purpose of the provision has been said to be "ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice": The Queen v Murphy (1985) 158 CLR 596 at 617; [1985] HCA 50. To the extent it applies it manifests a legislative choice to prefer "uniformity within each State as to the procedure for dealing with State and federal offences" over "having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth": Gee at [7].
4. The operation of s 68(1) was most recently addressed by the High Court in Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298. The case concerned whether provisions of the Crimes (Appeal and Review) Act 2001 (NSW) relating to holding an inquiry into a conviction or sentence could be picked up by s 68(1) to operate in relation to federal offences. A majority of four - Kiefel CJ, Gageler and Gleeson JJ writing together and Jagot J - held that portions of the provisions could be so applied. The other three members of the Court - Gordon and Steward JJ writing together and Edelman J - held that they could not be. The disagreement was with respect to the application, not content, of applicable principle.

The argument that aggregate sentencing is not available in NSW for federal offences

1. There was no dispute in this case that sentencing is a topic capable of being addressed by s 68(1), even though not expressly mentioned. So much is implicit in Putland. Section 68(1) refers to "trial and conviction on indictment", and it has been said that "[t]he word 'conviction' is capable of including sentence": Williams at 560 (Dixon J).
2. The focus of the Crown's broader argument was s 53A(2)(b) of the CSP Act. It is useful to set out that subsection again: (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
3. Part 3 of the CSP Act is entitled "Sentencing procedures generally". It includes a range of sentencing principles, rules and requirements. For example, s 21A contains long lists of aggravating and mitigating factors. The matters addressed in Pt 3 overlap with, but are not identical to, provisions in Pt 1B of the Crimes Act. The Crown argued that the words in parentheses in s 53A(2)(b) require the sentencing court to take into account the sentencing considerations under Pt 3, and that doing so would be "alien to the determination of federal sentences". It said that although the section only related to the court stating indicative sentences for individual sentences, doing so was a step towards setting the aggregate sentence, thus the setting of an aggregate sentence for federal offences would be misdirected. It submitted that "never could a sentence indicative of what the federal sentence would have been be determined in accordance with Part 3 instead of Part 1B of the Crimes Act". The Crown thus argued that applying s 53A(2), as construed by it, to the setting of federal offences would be inconsistent with Pt 1B of the Crimes Act. On that understanding the provision would not be picked up by s 68(1).
4. In response, Mr McGregor argued that the words in parentheses could be severed, that is, not picked up by s 68(1), or alternatively perhaps the whole of subs (2) could be severed. Further, and again alternatively, he argued that the words in the parentheses could be translated so as to be taken to refer to relevant provisions in the Crimes Act. A further possibility raised was that as a matter of construction the words in parentheses simply would not apply when imposing an aggregate sentence for federal offences. The Crown, however, disputed that severance or translation were available, on the basis that what would be involved was a change of meaning "beyond any legitimate process of 'translation'". As for the construction argument, the Crown said that it "doesn't solve the problem because what are the factors that the Court is to have regard to in building the indicatives; it's not enough to say turn off the State factors, one needs to do more than that".

The argument based upon ss 16AAA-16AAC

1. Sections 16AAA and 16AAB of the Crimes Act provide as follows: 16AAA Minimum penalties for certain offences Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item. Minimum penalty Item Column 1 Column 2 Offence Sentence of imprisonment 1 offence against subsection 272.8(1) of the Criminal Code 6 years 2 offence against subsection 272.8(2) of the Criminal Code 6 years

… [A total of 15 items are listed in this table] 16AAB Second or subsequent offence (1) This section applies in respect of a person if: (a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence); and (b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence. (2) Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item. … [The table is in the same format as for s 16AAA, listing 37 items]

1. The relevant text of s 16AAC has been set out above (at [10]).
2. The Crown made one argument based on these provisions, beyond its general arguments about s 53A(2)(b). It submitted that ss 16AAA and 16AAB require that the minimum sentence identified for each item in the two tables must be imposed for each particular offence. It said that where "an aggregate sentence is imposed under s 53A in respect of an offence to which s 16AAA applies and other offences, no sentence is actually imposed for that offence". That is so, the Crown submitted, because it is well-established (and was not disputed) that when an aggregate sentence is imposed under s 53A of the CSP Act the only operative sentence imposed is the aggregate sentence; the indicative sentences are not operative: eg R v Clarke [2013] NSWCCA 260 at [52]; Cullen v R [2014] NSWCCA 162 at [26].
3. Mr McGregor submitted in response, first, that s 16AAA "does not explicitly require the court to impose a sentence of imprisonment for the offence to which the mandatory minimum applies". He noted that it does not say "for that offence". This argument is unpersuasive. Where the text of s 16AAA refers to "an offence described in column 1 of an item in the following table", and requires imposition of the corresponding minimum term, the natural reading is that it requires imposition of that term for each identified offence. So much is reinforced by consideration of s 16AAB(2), which speaks of "if the person is convicted of a current offence described in column 1 …". That language identifies the current offence being sentenced for, in contrast to the child sexual abuse offence(s) for which the person had previously been sentenced. That text makes tolerably clear that the minimum sentence is to be imposed for each such offence. The only difference between the wording of s 16AAB(2) and s 16AAA is the inclusion in s 16AAB(2) of the word "current" before "offence", then the inclusion of the words "for the current offence" before "a sentence of imprisonment". These words have been inserted because s 16AAB is addressed to cases where there have been previous relevant convictions, such that there is a need to distinguish past offences from the offence(s) before the sentencing court. There is no reason to consider that the Parliament meant for the two sections otherwise to impose a different sort of requirement.

Re-sentence

1. Mr McGregor read his own affidavit as well that of his instructing solicitor in aid of a contention that they supported the availability of more favourable findings on the issues of his rehabilitation prospects and the likelihood of reoffending.
2. Her Honour the sentencing judge had said that she regarded Mr McGregor's prospects of rehabilitation as guarded "at this stage". She said that she could not find he was unlikely to reoffend. However, in sentencing afresh, Mr McGregor submitted that the evidence tendered by him on the "usual basis" now provides further support for more favourable findings in these areas. In particular, the Case Note Reports from the Department of Corrective Services, annexed to the affidavit of Mr Dowe, show that Mr McGregor has demonstrated a positive attitude with Corrections staff and a similar attitude towards his peers. He has been particularly helpful with supporting more challenging inmates in their studies and has been described as a "role model inmate within the centre [and] always attends his work at the medium education area". Mr McGregor "remains polite to staff and interacts with all inmates in a positive way".
3. During an education and employment screening, Mr McGregor "presented as compliant and cooperative and seemed to be future focussed". He recently "gained employment as Peer Support for Max education" and "Compliance to Case Plan" was noted. Mr McGregor receives "excellent work reports".
4. Mr McGregor submitted this evidence justifies more favourable findings in relation to his rehabilitation prospects and likelihood of reoffending which in turn reduces the emphasis that should be given to specific deterrence.
5. Mr Quilter of counsel for Mr McGregor submitted that his offending was clearly serious but that the sentence imposed by her Honour was "very stern". Mr McGregor was 53 years of age at the time of his sentence. He had not been sentenced for anything since he was 19 years old. Even adopting all of her Honour's findings below, it was submitted that a substantially lesser sentence than 11 years and 6 months is warranted. That is said to be so particularly having regard to the evidence now available to this Court on the prospects of rehabilitation and the likelihood of reoffending. Her Honour's findings are otherwise unexceptionable, were not contested, and can be adopted for the purposes of the resentencing exercise.

Orders

1. In these circumstances, the orders of the Court will be as follows: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Herbert DCJ on 28 October 2022. 4. In lieu thereof, sentence Mr McGregor to an aggregate term of imprisonment of 10 years and 9 months commencing on 5 October 2021 and expiring on 4 July 2032 with a non-parole period of 7 years and 6 months expiring on 4 April 2029.

Amendments 05 November 2024 - Representation updated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2024