Bell CJ, Kirk JA, Harrison CJ, Davies J, Sweeney J
Catchwords
(2023) 97 ALJR 298
Batak v R [2024] NSWCCA 66
Chan v R [2023] NSWCCA 206
Coleman v Power (2004) 220 CLR 1
[2004] HCA 39
Commonwealth Director of Public Prosecutions v ABC (a pseudonym) [2023] VCC 446
CSR Limited v Eddy (2005) 226 CLR 1
[2005] HCA 64
Cullen v R [2014] NSWCCA 162
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
(2017) 270 A Crim R 556
Hill v Zuda Pty Ltd (2022) 275 CLR 24
Source
Original judgment source is linked above.
Catchwords
(2023) 97 ALJR 298
Batak v R [2024] NSWCCA 66
Chan v R [2023] NSWCCA 206
Coleman v Power (2004) 220 CLR 1[2004] HCA 39
Commonwealth Director of Public Prosecutions v ABC (a pseudonym) [2023] VCC 446
CSR Limited v Eddy (2005) 226 CLR 1[2005] HCA 64
Cullen v R [2014] NSWCCA 162
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301(2017) 270 A Crim R 556
Hill v Zuda Pty Ltd (2022) 275 CLR 24[2022] HCA 21
House v The King (1936) 55 CLR 499[1936] HCA 40
Hurt v The Queen (2022) 18 ACTLR 272[2022] ACTCA 49
Hurt v The King (2024) 98 ALJR 485[2024] HCA 8
JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528
Karim v The Queen (2013) 83 NSWLR 268[2013] NSWCCA 23
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36[2017] NSWCA 37
Leeth v Commonwealth of Australia (1992) 174 CLR 455(1992) 66 ALJR 529
Moriarty v Nye [2024] NSWCCA 116
Obian v The King [2024] HCA 18(2024) 98 ALJR 771
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
Judgment (21 paragraphs)
[1]
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)
[2]
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
[3]
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:
[4]
The effect of s 16AAC
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.
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].
[5]
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.
[6]
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].
[7]
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.
[8]
JUDGMENT
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.
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).
[9]
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.
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.
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.
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.
[10]
Ground 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.
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.
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.
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.
[11]
Consideration
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.
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.
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".
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.
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).
[12]
The availability of aggregate sentencing
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.
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.
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.
[13]
Aggregate sentences
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.
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.
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.
[14]
Putland, Beattie and the CDPP's change of position
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).
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]).
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.
[15]
Section 68 of the Judiciary Act
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).
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.
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].
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.
[16]
The argument that aggregate sentencing is not available in NSW for federal offences
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).
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.
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).
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".
[17]
The argument based upon ss 16AAA-16AAC
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
[18]
… [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]
The relevant text of s 16AAC has been set out above (at [10]).
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].
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.
[19]
Re-sentence
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.
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".
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".
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.
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.
[20]
Orders
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.
[21]
Amendments
05 November 2024 - Representation updated.
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Decision last updated: 05 November 2024
On the first approach, the sentencing judge could apply a total discount of 30% to the 7 year mandatory minimum sentence for which s 16AAA provides. Arithmetically, 30% of 7 years is 25.2 months which, when subtracted from the starting point of 8 years, results in a sentence of 70.8 months, or 5 years and 10 months rounded down. That is the sentence indicated by her Honour in the present case.
On this approach, the maximum discounts identified in s 16AAA(3) affect the sentencing process by capping the size of the discount for the two factors. For example, where a sentencing judge considered that a defendant charged with a breach of s 272.11(1)(c) of the Criminal Code should receive a long sentence of say 20 years, but wished to allow a discount of 50% in light of an early guilty plea and substantial cooperation with authorities, that discount would not be 10 years but only 3 years 6 months, being half of the 7 year minimum term.
On the second approach, on the facts in this case, a sentencing judge could apply a total discount of 30% to the starting point of 8 years. Arithmetically, 30% of 8 years is 28.8 months which, when subtracted from the starting point of 8 years, results in a sentence of 67.2 months, or 5 years and 7 months rounded down. That figure is permissible under s 16AAC(3) on this approach because 5 years and 7 months is not lower than 50% of the mandatory minimum of 7 years, in circumstances where a discount is being allowed both for the guilty plea and for cooperation. On this construction the discount provisions in s 16AAC(3) set a floor below which the term of imprisonment cannot go but they do not otherwise address how any such discounting is to occur. On the example given of a judge considering that a 50% discount should be allowed on a 20 year starting point, a sentence of 10 years could be imposed.
The first approach was taken by Mossop J in R v Hurt (No 2) [2021] ACTSC 241; (2021) 294 A Crim R 473 at [83], [89], [120], and by Judge Parrish in Commonwealth Director of Public Prosecutions v ABC (a pseudonym) [2023] VCC 446 at [97] and [99]. In R v Stiller (2023) 14 QR 38; [2023] QCA 51, at [29]-[32], the Queensland Court of Appeal effectively adopted the first approach in circumstances where it seems that both sides relevantly advocated for it.
The second approach was taken by this Court in R v Delzotto [2022] NSWCCA 117; (2022) 298 A Crim R 483 at [111] and R v Glasheen [2022] NSWCCA 191 at [13]-[14], [29], [32], by a majority of the ACT Court of Appeal in Hurt v The Queen (2022) 18 ACTLR 272; [2022] ACTCA 49 at [198]-[199], and by Montgomery DCJ in R v Large [2021] NSWDC 429 at [54]-[55].
Mr McGregor contends that the second approach is correct. The Crown agrees with that contention and therefore concedes Ground 1 of this appeal.
The chapeau in subs (3) says: "If a court may reduce a sentence, the court may reduce the sentence as follows: …". The first phrase refers to the court being empowered to reduce a sentence, implicitly because one or both of the factors identified in subs (2) apply. The second phrase empowers the court to reduce the sentence by up to the percentages specified in the following three paragraphs. Thus if both factors are taken into account, such that par (c) applies, "the court may reduce the sentence … by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table".
These words are ambiguous. They could be taken to mean that the amount by which the sentence may be reduced is up to 50% of the relevant specified minimum period (the first approach as adopted by the sentencing judge here), or they could be taken to mean that the sentence may not be reduced beyond 50% of the period specified in the column. In our view, text, context and purpose all point towards the second meaning.
The first construction involves changing the sentencing process by imposing a strict limit on the quantum of the reducing discount that can applied as a result of the offender pleading guilty and/or cooperating with law enforcement authorities. It would do so by reference not to the sentence that would otherwise have been imposed but rather to percentages of the minimum sentence otherwise required for a particular offence.
That construction is not harmonious with the text. Both subs (2) and (3) refer to the court "taking into account" the identified two factors under, respectively, s 16A(2)(g) and (h) of the Crimes Act. Section 16A(2) sets out a list of matters that the sentencing court "must take into account" if relevant and known to the court. Paragraph (g) and (h) are as follows:
(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; …
It is these factors which in the ordinary process of sentencing would guide the sentencing judge with respect to the two matters in deciding what sentence to impose. The references within s 16AAC to those factors confirm that that provision is not seeking to alter the operation of those factors in terms of the sentencing process. Yet to adopt the first construction would involve a substantial departure from the ordinary application of those factors by introducing a numerical cap, calculated by reference to the minimum penalty. That would be so even though s 16A(1) continues to apply to the sentencing of such offences, with its requirement that "a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". A note underneath that provision says that "[m]inimum penalties apply for certain offences - see sections 16AAA, 16AAB and 16AAC". The note illustrates that s 16A(1) does apply to offences addressed by those sections, subject to the minimum terms there specified, and subject also to the understanding that the minimum sentences specified serve as a statutory yardstick which are themselves relevant circumstances for the overall sentencing exercise: see Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 at [29]-[39] and [85]-[107].
The first construction would be not only a substantial departure from general sentencing practice but a somewhat arbitrary and capricious one. As noted above (at [11]), it would mean that where a sentencing judge was inclined to allow a 50% discount to a substantial sentence of say 20 years for a s 272.11 offence, the judge would be unable to discount the sentence by 10 years but would be limited to 3 years and 6 months. That approach would alter established sentencing practice where offenders receive equal discounts in percentage terms for pleas of guilty that have equal utilitarian value (and assistance of equal value). As the Crown put it, the "discount for an offender with a higher sentence will be diluted relative to their head sentence compared to the discount for an offender with a lower head sentence". As Mr McGregor submitted, this would be inconsistent with a practical recognition that "an accused person facing a very long sentence has a real disincentive" to plead guilty and thus some significant incentive is necessary to encourage such pleas (and the same is true of providing cooperation to authorities). The desirability of providing an incentive to plead guilty and to cooperate with authorities exists at least as much for offenders subject to ss 16AAA or 16AAB as it does with respect to any other offender. That point does not detract from the recognition that the minimum sentence provisions serve as a yardstick: note Hurt at [104].
The second construction avoids the unfairness because the discount will be informed by the chosen starting point for the sentence, which will vary from case to case, as opposed to being calculated by reference to the mandatory minimum sentence, which will not: see, by analogy, Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [45].
The relevant explanatory memorandum emphasised the continuing importance of encouraging guilty pleas and cooperation with authorities (Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth), Explanatory Memorandum (2019 Explanatory Memorandum)):
[210] The Bill recognises the value of a guilty plea and cooperation with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective criminal justice system and to reduce impacts on witnesses and victims. As such, the courts are able to exercise a degree of discretion when imposing the minimum penalties.
Similarly, the adverse practical consequences of adopting the first construction are not consistent with the following observations by the federal Attorney-General in his second reading speech (Commonwealth House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2445):
Judges will also retain discretion to deviate from the minimum terms set statutorily by up to 25 per cent each, to allow for the recognition of early guilty pleas and cooperation with law enforcement. This is an important provision to ensure we do not disincentivise demonstrations of remorse by offenders that facilitate the administration of justice.
Those observations are themselves supportive of the second construction. The Attorney referred to judicial discretion to deviate from the minimum terms set, directing attention to the sentence actually imposed by judges. The intent of the Parliament in introducing ss 16AAA-16AAC was to introduce minimum terms of imprisonment for the identified child sexual abuse offences. The Attorney's speech illustrates that in so doing the Parliament did not seek to disincentivise offenders from pleading guilty or cooperating with law enforcement authorities, and it thus allowed sentences to be imposed below the set minimums in those circumstances by up to a certain amount. The Parliament was not seeking to address the distinct topic of what discounts or allowances could or should be applied in recognition of a plea of guilty or cooperation aside from setting the floor imposed by s 16AAC(3). Those sentencing issues are to be addressed in the usual way in light of s 16A, subject to that floor.
The second construction is also consistent with the following statements by Edelman, Steward and Gleeson JJ in Hurt, although it should be acknowledged that the point raised here was not at issue in the High Court:
[102] … Section 16AAC(3) places a cap on the extent of any reduction of sentence to ensure that the sentence does not fall 25% below the minimum period specified for each of an offender's plea of guilty and co-operation with law enforcement agencies (or 50% below if both factors apply).
[103] … Where, as here, the minimum sentence is four years' imprisonment, s 16AAC(3) has the effect that the discount for either a plea of guilty or co-operation cannot reduce the sentence below a floor of three years and the combined discount for both cannot reduce the sentence below a floor of two years.
It follows that ss 16AAA and 16AAB do not affect what discount or allowance may be allowed for a plea of guilty or for cooperating with authorities, subject to ensuring that the final sentence imposed is not thereby reduced to below 75% of the period specified in the relevant table in ss 16AAA or 16AAB if one of the factors is applicable, or below 50% of the specified period if both factors arise.
Incidentally, s 16AAC does not itself require the sentencing judge to impose a discount in percentage terms for those factors, though the judge may well wish to do so. The percentages are specified in the provision only for the purpose of identifying the minimum floor.
Section 16AAC does not require a court to do what the sentencing judge did in this case: to calculate the discount by considering a percentage of the minimum penalty and then deducting that figure from the notional starting point. Her Honour erred in concluding otherwise. This Court should intervene and on re-sentence should apply the approach taken by this Court in Delzotto and Glasheen. The appeal should thus be allowed.
The purpose of s 53A was explained in the Parliamentary Secretary's second reading speech in the Legislative Council (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27867):
Currently when sentencing for multiple offences the sentencing court is required to set out in great detail the precise length, commencement and expiry dates of the non-parole and total periods of custody for each offence. This becomes a very complex exercise when some of those offences are to be served partly concurrently, which is done to ensure that the total period of imprisonment adequately reflects the criminality of the offender's conduct.
The reasons for setting out the precise details of each sentence are to ensure transparency, reflect criminality and ensure that victims get due recognition. This also makes it easier to adjust an overall sentence when one sentence is changed on appeal. Those principles remain important, but in order to simplify the sentencing process for the judiciary, and for the community's understanding of it, the Government has decided to remove the requirement to specify the precise detail of any overlap between the sentences by allowing it to set one overall sentence and one non-parole period, provided that the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually. The amendments will allow the judge to approach sentencing for multiple offences in a simple way when appropriate and lead to a sentence which is simpler and more easily understood by all.
Thus, as it was put in JM at [39(1)]:
Section 53A … offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences.
Self-evidently, the possibility of an aggregate sentence only arises when the court is sentencing a defendant to imprisonment for more than one offence. In substance s 53A does not change the sentencing process until the stage of setting the dates when the convicted person is to serve a term of imprisonment, including when they may become eligible for parole. Thus the Parliamentary Secretary emphasised that the amendments were "not intended to alter the way offenders are sentenced in any substantial way, or to have any impact on the overall length of sentences" (Hansard at 27870). Previously it was necessary to set the start and end dates for each sentence for which the defendant was convicted and sentenced to imprisonment, addressing issues of concurrency and accumulation in light of the principle of totality when so doing. Section 53A gives a court the option of imposing one sentence - with one start date and one end date - for all offences for which an aggregate term of imprisonment is being imposed. As explained in the second reading speech, the sentencing judge is still required to determine and indicate the appropriate sentence that would have been given for each offence had it been sentenced individually. That is the effect of s 53A(2)(b). That being said, the scheme was intended not to require courts "to give an indication that is so detailed that they are effectively sentencing the offender for each offence separately in any case" (second reading speech, Hansard, at 27870).
Other States and Territories have provided for aggregate sentencing: Sentencing Act 1991 (Vic), s 9; Sentencing Act 2017 (SA), s 26; Sentencing Act 1997 (Tas), s 11; Sentencing Act 1995 (NT), s 52(1). Notably, the Victorian section provides that the sentencing court is not required to determine the sentences that would have been imposed for each offence had separate sentences been imposed. No doubt the court might still choose to do so.
In the seven years since Beattie was decided aggregate sentences have been imposed by New South Wales courts with respect to federal offences on innumerable occasions. Some possible doubts have been raised about the position in two subsequent decisions of this Court: Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 at [72]-[74] (Brereton JA) and [83]-[86] (N Adams J); Tenenboim v R [2024] NSWCCA 1 at [57]-[58] (N Adams J); cf Delzotto at [2] (Beech-Jones CJ at CL).
As the Crown submitted, the issue raised by its first argument, relating to s 16AAA, was not at issue either in Putland or Beattie. However in making its second and general argument the CDPP has changed position with respect to the issue, as senior counsel candidly acknowledged. Counsel was asked what iniquity or problem had led to the new Director's change of position. The explanation proffered was that the CDPP was concerned that s 53A(2)(b) required the application of State sentencing factors pursuant to the CSP Act when considering what indicative sentences should be assessed for each offence, doing so to the exclusion of federal sentencing considerations set out in Pt 1B of the Crimes Act. It was said that given "there are at least some non-trivial differences with the Federal factors you would be building up different indicatives and you would be getting potentially a different aggregate". The Crown described this Court's recent decision in Chan v R [2023] NSWCCA 206 as "an informative one where much closer attention has been paid for the first time to that unique feature of the New South Wales legislation" in an analogous context. The Crown said that its "fallback position" was that if s 53A could apply with respect to federal offences then s 53A(2)(b) should, one way or another, be understood to require the sentencing court to have regard to federal and not State sentencing principles in assessing indicative sentences.
The Crown's concern echoes an argument sometimes raised in opposition to the application of s 68 of the Judiciary Act, namely that it detracts from the uniformity of federal law by applying some aspect of State or Territory law. A difficulty facing that type of argument is that such a potentially differential effect is inherent in the application of s 68: note The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12 at [7]; Putland at [25]. That the section has such an effect thus is not an argument against its application. Moreover, differential effects at the federal level may nevertheless achieve more uniform effects within the relevant State or Territory. That may be a matter of particular significance with respect to defendants charged under both federal and State law or imprisoned for federal offences in State gaols: note Putland at [5]; Leeth v Commonwealth of Australia (1992) 174 CLR 455 at 465-466, 470-471 and 479-480.
There is some irony in the CDPP's invocation of Chan. That case concerned the potential imposition of an intensive corrections order (ICO), as provided for in Pt 5 of the CSP Act, for certain federal offences. Section 66(3) of that Act provides as follows:
When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
In Chan both the applicant and the Crown (represented by the CDPP) argued that: (a) this section could be picked up by federal law (actually pursuant to s 20AB(3) of the Crimes Act rather than s 68(1) of the Judiciary Act); and (b) that it was picked up unchanged, such that when it came to considering whether a term of imprisonment should be served by way of an ICO the sentencing court was to apply the provisions of s 3A of the CSP Act and not the equivalent provision in the Crimes Act. That was only to be done after having already determined, pursuant to the Crimes Act, whether a term of imprisonment should be ordered. That this was the position of the CDPP, and that it was not in dispute, is recorded by N Adams J at [100]. The dispute raised by ground 1 in the case was ultimately about whether the sentencing judge had, in substance, taken account of the matters raised by s 3A of the CSP Act even though she had directed herself by reference to equivalent considerations under the federal Act (and the Court held that her Honour had not done so).
Thus in Chan the CDPP put a submission, accepted by the Court, which had the effect of requiring sentencing courts to consider and apply certain State Act sentencing considerations when sentencing for a federal offence, albeit only at a stage after having determined that a term of imprisonment was warranted. That is the very type of result which the CDPP seeks to avoid in relation to the issue now before this Court. The irony of the CDPP's position with respect to Chan is magnified by the fact that since this matter was argued the CDPP has (again) changed position and sought to overturn this Court's acceptance of the submission it had put in Chan (in the matter of Vamadevan v R (2022/106827), decision reserved on 23 September 2024).
In any event, the new Director is entitled to raise both of the arguments put in this matter. The parties proceeded on the understanding that the Court was being asked to overturn one of its own decisions, Beattie, as authority for the applicability of s 53A to federal offences. On this basis the parties perceived the question to be whether Beattie was plainly wrong or, to use the expression of that test which appears preferable, whether there is "a compelling reason" to decline to follow it: note Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25]; Moriarty v Nye [2024] NSWCCA 116 at [156] and authority there cited.
That understanding of the question facing this Court is not correct. The issues raised here were not the subject of argument in Beattie, as is apparent from the quotation from that case above (at [12]). If "a point is not in dispute in a case, the decision lays down no legal rule concerning that issue": Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79]; see also CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]-[14]; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87]. Put another way, this Court's acceptance of both parties' submissions in Beattie is not part of the ratio of the case. In those circumstances the plainly wrong/compelling reason threshold does not apply: Batak v R [2024] NSWCCA 66 at [140]; note also Hill v Zuda Pty Ltd at [26]. Rather, the question is simply whether s 68(1) of the Judiciary Act can pick up and apply s 53A of the CSP Act in this matter.
The following propositions relevantly emerge from the case, derived from earlier authority:
1. Section 68(1) does not pick up and apply a State or Territory law to the extent that doing so would be inconsistent with the Constitution or another federal law: at [58] and [149].
2. Subject to the points that follow, s 68(1) applies the text of a State or Territory law without altering the meaning of the law: at [57], [150], [236]-[237] and [269].
3. The State or Territory law is being applied by s 68(1) in relation to dealing with federal offences, that being an application that the relevant State or Territory would presumptively not have intended to address (note Seaegg v The King (1932) 48 CLR 251 at 255; [1932] HCA 47) and which in some respects may be beyond its powers in any event. That being so, the hypothesis on which s 68(1) applies is that the State or Territory law can apply with respect to the person charged; put another way, the content of the State or Territory law is not being applied directly but is applied as federal law by analogy to the State or Territory provision: at [59] and [152]. That understanding is consistent with the fact that s 68(2) itself confers "like jurisdiction": at [144].
4. Proceeding by analogy means that s 68(1) may involve a "potential extension of the operation of a State or Territory law", but that extension is not taken to "give the State or Territory law an altered meaning merely because the State or Territory law evinces an intention to apply only to offences against the laws of the State or Territory": at [269] (Jagot J). There are limits to this potential extension. The text cannot be given a "substantively different legal operation": at [66] (Kiefel CJ, Gageler and Gleeson JJ). The "meaning and scope of application of the law's text can be extended in a limited way, without changing its essential meaning, from State or Territory circumstances to federal circumstances": at [237] (Edelman J). This may require some translation of the provision from the State/Territory level to the federal level (some examples are addressed below): at [62] and [152]. There is an issue of degree here in moving from the permissible task of applying the provision by analogy to the impermissible role of altering its substantive meaning. In some cases "the degree of translation required is too great": at [152] (Gordon and Steward JJ).
5. In some instances s 68(1) may pick up some but not all relevant parts of a State or Territory law, which in some circumstances might also be described as severing part of that law. However, this cannot be done if that approach would alter the substantive legal operation of the law: at [66], [154], [238] and [271]. Again, issues of degree may arise here, and this is one of the issues on which the High Court disagreed in Huynh.
Examples of translation include the following. Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 concerned s 5D of the Criminal Appeal Act 1912 (NSW), as it then stood, which provided that "[t]he Attorney-General may appeal to the Court of Criminal Appeal" against certain sentences. The section was construed to refer to the State Attorney-General (see eg Dixon J at 561). Nevertheless, the Court split 3:3 as to whether s 68(2) could pick up this power with respect to federal offences, conferring that power by translation on the federal Attorney-General. As this Court had held that it could, that view prevailed.
The issue was re-argued in Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59. The High Court, by 4:3, upheld the view of Rich, Starke and Dixon JJ in Williams that the power was conferred on the federal Attorney.
A closely related issue arose in Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50. A provision of Victorian law conferred a certain right of appeal on the Director of Public Prosecutions of that State. Under federal law the CDPP did not have a power of appeal per se but could exercise the federal Attorney-General's rights of appeal. The Court held that the Victorian provision conferred by analogy a right of appeal on the federal Attorney as each was the relevant proper officer to represent the polity. The federal Attorney's power could then be exercised by the CDPP. It can be seen that this decision involved a somewhat greater degree of translation than Williams and Peel given that the State Director and federal Attorney held distinct types of office albeit with overlapping types of power.
In these three decisions the focus of the Court was on the terms of s 68(2), granting jurisdiction, more than on s 68(1). However, the principles applied there are applicable to s 68(1): note Huynh at [62]. The decisions were referred to with approval by all judges in Huynh in the context of addressing s 68(1): at [60]-[63], [152]-[153], [237] and [286].
The Crown's argument is not made out. To begin with, it can be assumed (without deciding) that the Crown is correct to suggest that if s 53A was to be picked up in such a way as to mandate the application of State sentencing considerations to setting indicative sentences for federal offences then that would be inconsistent with Pt 1B of the Crimes Act, such as to preclude the provision being picked up by s 68(1).
As regards severance, the Crown is correct to submit that to sever the whole of subs (2) would be to alter the substantive legal operation of s 53A. As was explained in the second reading speech (quoted above at [42]), requiring the court to set out indicative sentences was an important part of the scheme. It is a feature which distinguishes it, for example, from the equivalent Victorian provision. Stating indicative sentences will influence the aggregate sentence imposed; assessing the indicative sentences "assists in the application of the principle of totality": JM at [39(6)]. As for Mr McGregor's argument that the words in parentheses could be severed, that overlaps with his other arguments of translation and construction.
Section 53A(2)(b) should not be construed in the way the Crown has suggested and it would not apply to federal offences in the manner the Crown claims. Resolution of the issue involves both construction and, on one view, translation. When properly understood, Mr McGregor's alternative severance argument does not arise.
The Crown argued that the words in parentheses in s 53A(2)(b) meant that matters addressed in Pt 3 of the CSP Act invariably would have to be taken into account. Moreover, an implicit aspect of the Crown's argument seemed to be that these words delineated the mandatory considerations in an exhaustive manner, such that otherwise the provision did not identify what sentencing factors should be applied. Neither point is correct.
The words in parentheses require the sentencing court to take into account "such matters as are relevant under Part 3 or any other provision of this Act" (emphasis added). The matters raised in Pt 3 are only required to be taken into account if and to the extent they are relevant. They are not required invariably to be taken into account. Insofar as any of those matters are inconsistent with what is provided in Pt 1B of the Crimes Act when a federal sentence is being addressed then they could and would not be relevant. There is, thus, no conflict between Pt 1B and s 53A(2)(b) of the kind postulated by the Crown. There is no occasion or need to sever the words.
It is important to recall the text and purpose of s 53A(2)(b). An indicative sentence is the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. As the Parliamentary Secretary said in the second reading speech, "the court first indicates the appropriate sentence that would have been given for each offence had it been sentenced individually" (Hansard at 27867). As noted above, he went on to say that "[i]t must be emphasised that these amendments are not intended to alter the way offenders are sentenced in any substantial way, or to have any impact on the overall length of sentences" (Hansard at 27870).
The Crown's argument that, leaving aside the words in parentheses, the provision does not identify what factors to apply is answered simply by reference to the clear purpose of the provision. That purpose is itself manifest in the text, namely the court is to indicate the sentence that would otherwise have been imposed. Undertaking that task necessarily involves taking account of whatever sentencing factors are applicable with respect to sentencing for the offence in question. When considering what sentence would have been imposed for any State offence the provisions in Pt 3 of the CSP Act would apply to the extent relevant. When considering what sentence would have been imposed for any federal offence the provisions in Pt 1B of the Crimes Act would apply. It is possible that s 68(1) might pick up some particular aspects of Pt 3 of the CSP Act if such an offence had been sentenced separately (ie not on aggregate basis) by a court in this State. If that is so, then any picked up aspects would also be relevant for the purposes of considering an indicative sentence for such a federal offence when proceeding under s 53A. It is not necessary to consider that possibility further here.
Mr McGregor is correct to argue that the words in parentheses do little to affect the construction of s 53A(2). That does not mean the words must be given additional work to do. It is not uncommon for a drafter to include words to make a point clear: note Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; [2017] HCA 7 at [44]-[55]. Here the point of those words was to emphasise that the court still needs to undertake the sentencing exercise for each offence, albeit for the limited purpose of giving an indicative sentence had an aggregate sentence not been imposed.
These considerations also answer the Crown's implicit assertion that s 53A(2) indicates that the matters in Pt 3 of the CSP Act are the only matters to which the court may have regard. There is "nothing unusual in a statute directing a court that it must have regard to certain matters without expressly or implicitly prohibiting it from considering other matters": Obian v The King [2024] HCA 18; (2024) 98 ALJR 771 at [14]. The words in parentheses in s 53A(2)(b) do not state that the court may only have regard to those matters. The fact that those words only require that account be taken of such of those matters "as are relevant" is suggestive of an intention not to be exhaustive. And when it is understood that the purpose of s 53A(2) is simply to require the court to set out what sentence would have been imposed for each offence if sentenced separately then there is no imperative to construe the parenthetical words as being a complete statement of what is relevant.
In substance, thus, the answer to the Crown's argument is one of construction. When properly construed as a matter of text, context and purpose, s 53A(2)(b) simply requires the court to undertake on an indicative basis the same sentencing exercise for each offence as would have otherwise occurred (noting, as suggested in the second reading speech, this might be done in a somewhat abbreviated way). The provision does not alter how that sentencing exercise is to be undertaken; any such intention was expressly disavowed in the second reading speech. This construction means that the concern of the CDPP said to have motivated the change in position since Beattie (identified above at [50]) is unwarranted. Put another way, this construction is consistent with the Crown's "fallback position".
As with many such issues, the purpose of a provision can be understood and stated at different levels of generality: note Huynh at [202] (Edelman J). An argument could be made that the purpose of the provision was to require the court to indicate a sentence it would otherwise have imposed under State law, as opposed to simply saying as it otherwise would have imposed per se. Yet Pt 3 of the CSP Act itself contemplates that it may fall to be applied with respect to federal offences. That is implicit in the specific provision in s 25A(1) restricting the application of Div 1A in relation to Commonwealth offences (the division deals with sentencing discounts for guilty pleas to indictable offences). Given that contemplation, the purpose of s 53A(2)(b) is better stated at the higher level of generality relating to the sentence the court would otherwise have imposed per se.
If the contrary view were taken, and the purpose of the provision was understood to be indicating a sentence the court would otherwise have imposed under State law, that would not lead to a different conclusion. As explained above, s 68(1) involves application of State law to federal offences by analogy; an act of translation is required. There is no change to the essential meaning of the provision, nor to its substantive legal operation, to say that a law requiring the indication of a separate sentence for a State offence consistent with State sentencing principles would, when applied analogically at the federal level, be understood to mean the court must indicate a separate sentence for a federal offence consistently with applicable federal sentencing principles. That is a similar degree of translation to that involved in Williams and Peel, and involves a lesser degree than that involved in Rohde.
In Tenenboim N Adams J noted in passing that the operation of s 53A(2)(b) raised "a similar question" to what had been considered in Chan (at [57]-[58]). Her Honour said that the issue had not been raised in that case and did not need to be addressed. Nothing in Chan requires a conclusion contrary to the one just reached. As explained above (at [53]), both parties in that case put to this Court that s 20AB(3) of the Crimes Act - playing a role equivalent to s 68(1) - applied s 66(3) of the CSP Act to sentencing of federal offences in the way expressed in the provision, without translation. The provision relates to the possible making of an ICO. Section 66(3) provides that when deciding whether to do so the court "must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant …". That provision is expressed in different terms to s 53A(2)(b). And, for the avoidance of doubt, whether or not Chan should continue to be followed is not at issue here.
In Patel Brereton JA raised a query as to the consistency of aggregate sentencing under s 53A with ss 19(2) and 19AB of the Crimes Act (at [71]-[74]). Justice N Adams expressed a similar possible concern in that case in relation to s 19AB (at [83]-[86]). In this case the Crown did not make any argument based upon these provisions. It is appropriate nevertheless to say something about the points raised by their Honours.
Section 19(2) provides:
(2) Where:
(a) a person is convicted of 2 or more federal offences at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
The section is headed "Cumulative, partly cumulative or concurrent sentences". Subsections (1) and (3) deal with situations where a person being sentenced for a federal offence is currently serving or subject to one or more federal, State or Territory sentences (subs (1)), or is simultaneously being sentenced to imprisonment for State or Territory offences (subs (3)). Subsection (2) deals with the situation where the person is being sentenced for more than one federal offence. The relevant explanatory memorandum stated that subs (2) "requires a court in such a case to direct that other sentences are to commence not later than the end of the one to commence first, ie the sentences may be concurrent, partly cumulative or cumulative" (Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) at 12-13). The context of this provision was explained in the memorandum as follows (at 12):
This section … will replace existing provisions contained in section 19 of the Principal Act. The existing section 19 only deals with cumulative sentences of imprisonment. It does not allow a federal sentence to be partly cumulative on another federal sentence.
In making this change, s 19(2) was intended to be facilitative. The provision also ensures that there is no gap between prison sentences, a policy which is also manifest in subs (1) and (3). The subsection is not inconsistent with imposing an aggregate sentence. In setting such a sentence the court complies with the requirement of specifying "when each sentence commences" by directing when the aggregate sentence commences.
That s 19(2) is not inconsistent with aggregate sentencing is reinforced by the fact that, as noted above, s 4K(4) of the Crimes Act - which predates Pt 1B - itself provides for aggregate sentencing for offences dealt with summarily. Gleeson CJ made the point in Putland (at [15]):
It follows that aggregate sentencing, as provided for in s 4K(4), is not antithetical to the provisions of Pt 1B. Those provisions must be able to co-exist with aggregate sentencing, because they exist together in the legislation, and Pt 1B was introduced into legislation that already provided (in relation to summary proceedings) for aggregate sentencing.
Putland also has significance with respect to s 19AB. It is notable that ss 19 and 19AB were relied upon by Kirby J in support of his dissenting conclusion in Putland (at [97]). Moreover, Gummow and Heydon JJ referred to ss 19AB-19AK as an example of provisions in Pt 1B of the Crimes Act which had the objective of "making exhaustive provision" on a particular subject (at [52]). Those provisions are contained within Pt 1B Div 4 of the Crimes Act, which is entitled "The fixing of non-parole periods and the making of recognizance release orders". Gummow and Heydon JJ quoted the explanatory memorandum for the Bill referring to the enactment of "a separate regime for fixing federal non-parole periods rather than relying on applied State or Territory legislation" (ibid). Gleeson CJ also referred to this and other parts of the explanatory memorandum (at [21]), then said that "[n]otably missing from that statement of purposes is any reference to an overriding or general purpose of providing complete uniformity of treatment as between federal offenders" (at [22]). In this context, the decision in Putland should be understood as having taken account of the provisions about which queries were raised in Patel, and having concluded that they did not prevent s 68(1) picking up the Northern Territory aggregate sentencing provision as regards head sentences.
The majority in Putland did not address whether and how Territory and federal provisions relating to non-parole periods could be reconciled in relation to aggregate sentences. Section 19AB(1) and (2) of the Crimes Act require a court to "fix a single non-parole period" if, to simplify slightly, a person is convicted of federal offences and sentenced to a period of imprisonment exceeding three years when aggregated. Under s 19AB(3) the court may decline to set a non-parole period in certain circumstances. Section 19AC provides, subject to various qualifications, that if the sentence does not exceed three years in the aggregate then the court must not fix a non-parole period but must rather make a single recognizance release order (being an order made under s 20(1)(b) of the Act - see the definition in s 16(1)). Section 19AG requires, in summary, that for certain "minimum non-parole offences" a single non-parole period of at least three-quarters of the sentence (as aggregated) must be imposed.
It suffices to assume here (without deciding) that the provisions in Pt 1B Div 4 provide an exhaustive statement as to the setting of non-parole periods for federal offences (noting that s 16E, within Div 3, applies some aspects of State and Territory laws relating to the commencement of sentences and non-parole periods). On that assumption, s 68(1) would not pick up at least s 44(2A)-(2C) of the CSP Act, which deal with setting a non-parole period for aggregate sentences. It was not argued that to only pick up the State law on aggregate sentencing insofar as it deals with setting the head sentence, without picking up the provisions relating to setting non-parole periods, would be to alter the substantive legal operation of s 53A of the CSP Act. In any case, the requirement in ss 19AB and 19AG to set a "single non-parole period" in the circumstances identified can operate harmoniously with a provision for the setting of an aggregate sentence (as might occur under s 4AK(4) of the Crimes Act).
In this context, the queries raised in Patel do not cause us to consider that s 68(1) of the Judiciary Act cannot pick up and apply s 53A of the CSP Act.
For the above reasons we conclude that the Crown's broader argument that aggregate sentencing under s 53A of the CSP Act cannot be applied to any federal offences should be rejected.
There is more force, however, in Mr McGregor's main argument. As his counsel pointed out, if an aggregate sentence of at least the minimum term is imposed for offences in the tables in ss 16AAA and 16AAB, then the requirement that at least such a term has been imposed for that offence has been satisfied. In such a case, to quote s 16AAA, the court has met the requirement that it "must impose a sentence of imprisonment of at least the period specified in column 2 of that item". The fact that the sentence is also imposed in punishment of other offences does not alter the fact that the aggregate and operative sentence is imposed in punishment of the listed offence(s).
This understanding of the provisions is not inconsistent with their purpose or context. As already explained, their purpose is to set "mandatory minimum penalties" for the identified offences: 2019 Explanatory Memorandum at [194]. The purpose was not to prevent the principle of totality being applied with respect to such offences or to preclude concurrency of sentencing when the person was being sentenced for more than one offence at the same time (where the other offence(s) might or might not be the child sexual abuse offences which ss 16AAA and 16AAB address). The operation of s 19(2) of the Crimes Act - which expressly permits concurrency, as discussed above - is not excluded (note 2019 Explanatory Memorandum at [284]).
In some circumstances the operation of s 19(2) in this context may be affected by subs (5)-(7) of s 19. Those provisions were added by the same amending Act as introduced ss 16AAA-16AAC. It was said in the extrinsic materials that they created a "presumption in favour of cumulative sentences" which "operates where a person is being sentenced for multiple Commonwealth child sex offences or Commonwealth child sex offences in addition to a state or territory registrable child sex offence": 2019 Explanatory Memorandum at [285]. Neither side in this matter referred to those provisions. Some issues of construction may arise in relation to their operation. It suffices to say that where the presumption of accumulation applies it is open to the sentencing court to depart from that requirement if persuaded of a particular criterion (subs (6)). The court is then required to state its reasons for imposing the sentence in that manner (subs (7)). It will be recalled that s 53A(3) of the CSP Act provides, harmoniously with s 19(7), that subs (2) "does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions". The provisions in s 19(5)-(7) of the Crimes Act thus do not preclude concurrent sentencing for the offences to which they apply. Nor do they preclude aggregate sentencing.
It is important to recall that the core aim of the introduction of aggregate sentencing under s 53A was to simplify the process of setting imprisonment dates for multiple sentences where a degree of concurrency has been found to be appropriate (see above at [42]-[44]). Given that sentences of imprisonment operating concurrently may be imposed for offences addressed by ss 16AAA-16AAC (and s 19(5)-(7)), there is no clash between the purpose and effect of those provisions and the possibility of aggregate sentencing. The CSP Act itself recognises that some offences for which an aggregate sentence is imposed may have a minimum term - s 49(2) provides that the term of an aggregate sentence must not be less than the shortest term of imprisonment that must be imposed for any of the offences so dealt with.
The Crown raised a concern relating to how the requirements of ss 16AAA and 16AAB could be taken to apply to an indicative sentence. It asked, in effect: if the sentencing judge indicated a sentence for an offence covered by those provisions which was less than the minimum stated in the relevant table, but then imposed an aggregate sentence which was not less than that minimum, why would that be erroneous on the argument put by Mr McGregor? In such a case the operation of the federal provisions would have been subverted. Yet, the Crown put, given that an indicative sentence is not the actual operative sentence, the formal requirement of the provisions would (on Mr McGregor's approach) have been complied with.
The answer to the query is that in such a case the court, at the least, would have misdirected itself as to the law such that the setting of the aggregate sentence would be infected by error. Although indicative sentences "are not themselves amenable to appeal … they may be a guide to whether error is established in relation to the aggregate sentence": JM at [40(11)] and authority there cited. In such a case the exercise of the sentencing discretion would have miscarried because the judge would have both acted upon a wrong principle and failed to take into account some material consideration - being the required minimum term for the relevant individual offence - in considering what aggregate sentence to impose. Those are, of course, two of the types of error identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.
The Crown's arguments as to the inconsistency of ss 16AAA and 16AAB with aggregate sentencing are not made out. Those provisions, along with s 16AAC, can operate harmoniously with aggregate sentencing as provided for under s 53A of the CSP Act. Nor has the Crown's broader argument been made out. Section 53A can therefore be picked up and applied by s 68(1) of the Judiciary Act with respect to the types of offences to which those provisions apply. Thus aggregate sentencing is available with respect to Mr McGregor.
In that respect, having regard to the submission that the sentence imposed upon Mr McGregor was severe, it is instructive to consider her Honour's analysis of some of the factors that she took into account when imposing the sentence in question:
Each of the children who have been exploited by the offender through the commission of these offences is highly likely to suffer ongoing harm from these offences, more so, for BVL given the nature and extent of the offences committed against her.
Given the fact that offences of this nature are easily committed it is important that the offender be deterred from any repetition of such conduct. The offence on the Schedule is itself a serious offence. The offender sent a child pornographic videos (sic) and images of his penis. Greater weight must be given to personal deterrence.
General deterrence is of particular importance in sentencing for these offences. Offending of the type in this matter has the potential to cause great damage to children and the children involved in such offences have the added vulnerability of being from impoverished circumstances. These offences can be committed by anyone with access to the internet or a telephone and can prove difficult to detect. The sentence must be sufficient to deter both the particular offender and others who may contemplate similar activity.
The protection of the community, and particularly these vulnerable children living in impoverished circumstances, denunciation and retribution are factors to be taken into account in sentencing the offender.
In this matter I have considered s 17A of the Crimes Act 1914 (Cth) requiring that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am so satisfied.
The objective seriousness of these offences is such that no other sentence would be appropriate.
In determining the issue of an appropriate overall sentence and the totality principle, I am bound by the application of s 19(5) of the Crimes Act (Cth) requiring the sentences to be wholly cumulative, unless I make a determination pursuant to s 19(6) that the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of severity appropriate in all the circumstances.
There is separate and distinct criminality for each of the offences committed by the offender, and particularly where count 3 involves different victims from the other offences. All offences were committed within a period of 12 to 18 months and Counts 1, 2 and 4 were within the same two month period, and those offences all involve the same victim. If the factual matrix of Count 1 had included the sexual activity that constitutes Count 2 it would have been a much more serious offence. Having considered all of the factors relevant to determining whether the criminality can be reflected in a sentence of such a severity appropriate in all the circumstances where there is a degree of concurrency, I am so satisfied. To wholly accumulate each sentence would result in a sentence that is disproportionate to the overall criminality.
The offender would benefit from a period of supervision to ensure that he continues to engage in offence specific treatment while in the community to achieve the objective of rehabilitation.
The Crown's submissions on sentence were limited to the contention that this Court "may consider it appropriate to achieve a total effective head sentence equivalent to what the sentencing judge would have imposed had her Honour applied s 16AAC(3) correctly".
This Court is better placed to consider Mr McGregor's prospects of rehabilitation and likelihood of reoffending. His progress in custody and his positive attitude to his situation are matters about which her Honour was unable to express a view with any confidence. That position has now changed and this Court can be more confident in expressing optimism in this respect. However, the seriousness of the offending and the need for general deterrence have not changed. The sentence to be imposed must take account of the error articulated in the sole ground of appeal.
Adopting the 30% discount for the combined effect of Mr McGregor's plea and assistance to authorities, we would propose the following indicative sentences for the individual offences:
Count 1 - 5 years and 7 months
Count 2 - 2 years and 9 months
Count 3 - 4 years
Count 4 - 4 years and 6 months
Mr McGregor should be sentenced 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.