[2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321
[2013] HCA 31
JM v R [2014] NSWCCA 297
Karim v The Queen (2013) 83 NSWLR 268
Source
Original judgment source is linked above.
Catchwords
(2021) 362 FLR 445
Bahar v R (2011) 45 WAR 100[2011] WASCA 249
CMB v Attorney-General (NSW) (2015) 256 CLR 346[2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321[2013] HCA 31
JM v R [2014] NSWCCA 297
Karim v The Queen (2013) 83 NSWLR 268[2013] NSWCCA 23
Magaming v The Queen (2013) 252 CLR 381[2013] HCA 40
Manojlovic v RR v Manojlovic [2020] NSWCCA 315
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Park v The Queen (2021) 95 ALJR 968[2021] HCA 37
Patel v R [2022] NSWCCA 93
R v Doan (2000) 50 NSWLR 115[2000] NSWCCA 317
R v Hurt (No 2) [2021] ACTSC 241
R v Karabi [2012] QCA 47(2012) 220 A Crim R 338
R v Latif: ex parte Cth DPP [2012] QCA 278
R v McNaughton (2006) 66 NSWLR 566[2006] NSWCCA 242
R v Nitu (2013) 1 Qd R 459[2012] QCA 224
R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep)
The Queen v Kilic (2016) 259 CLR 256
Judgment (22 paragraphs)
[1]
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
DPP (NSW) v Burton [2020] NSWCCA 54
DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134
Dui Kol v R [2015] NSWCCA 150
Eldridge v The State of Western Australia [2020] WASCA 66
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
JM v R [2014] NSWCCA 297
Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Park v The Queen (2021) 95 ALJR 968; [2021] HCA 37
Patel v R [2022] NSWCCA 93
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v Hurt (No 2) [2021] ACTSC 241
R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338
R v Latif: ex parte Cth DPP [2012] QCA 278
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Nitu (2013) 1 Qd R 459; [2012] QCA 224
R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep)
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Totaan v R [2022] NSWCCA 75
Texts Cited: Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019
Category: Principal judgment
Parties: Regina (Appellant)
Enrico Robert Charles Delzotto (Respondent)
Representation: Counsel:
S Callan SC / K Breckweg (Appellant)
R J Wilson SC / K Averre (Respondent)
[2]
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Legal Aid New South Wales (Respondent)
File Number(s): 2020/194467
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Citation: [2021] NSWDC 325
Date of Decision: 25 June 2021
Before: Grant DCJ
File Number(s): 2020/194467
[3]
Judgment
BEECH-JONES CJ at CL: I agree with Adamson J and the orders her Honour proposes. I note three further matters.
First, the judgment appealed from involved the imposition of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for Commonwealth offences. The orders proposed by Adamson J also involve the imposition of an aggregate sentence for such offences. Recently, a differently constituted bench of this Court, cast doubt on whether such a sentence can be imposed for Commonwealth offences (Patel v R [2022] NSWCCA 93 at [72] to [74] per Brereton JA and [83] to [86] per N Adams J). However, existing authority in this Court has held that it can (Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 (Beattie)). Neither party to this appeal submitted to the contrary. This Court is entitled to act on what was found in Beattie until the contrary is held either by the High Court or this Court acting in accordance with established principles concerning the departure from its earlier decisions (see for example Totaan v R [2022] NSWCCA 75).
Second, even though ground 2 of the Commonwealth Director of Public Prosecution's appeal was not pressed, it is necessary to say something further about it in case there is an attempt to reagitate it elsewhere in a manner which is unconnected to the reasoning that has led to this Court's acceptance of ground 1 of the appeal. At least one permutation of ground 2 contended that the power conferred by s 16AAC(2) of the Crimes Act 1914 (Cth) to reduce a sentence below the minimum periods specified in column 2 of the Table in s 16AAB, on account of an offender's plea of guilty or cooperation with law enforcement agencies, could only be exercised in a case that involved the "lowest category of offending" which I understand to mean an offence the objective seriousness of which was at the bottom of the range. The written submissions referred to [213] of the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) which upon its enactment included ss 16AAB and 16AAC and which stated:
"The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the table in section 16AAA and subsection 16AAB(2)."
The contention that it is only the lowest category of offending that could ever result in the imposition of the minimum sentence is inconsistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and otherwise denies the fundamental precept that the determination of the appropriate sentence requires a consideration of all the relevant factors as part of the "instinctive synthesis" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). Otherwise, as emerged in argument, if this approach to s 16AAC was accepted, then in the case of an offence against s 474.22A(1) of the Criminal Code (Cth) where, say, before any consideration of the discount to be afforded to an offender's plea of guilty, the appropriate sentence has been determined to be 4 years and 6 months, there could be no reduction below the 4-year minimum on account of the offender's plea. However, if the assessment was that, before any consideration of the offender's plea of guilty, the appropriate sentence was 4 years, then the sentence could be reduced to as low as 3 years on account of the plea of guilty (and 2 years if the offender cooperated with law enforcement agencies). This disparity in outcome would be the antithesis of the concept of "equal justice" as explained by Allsop P in Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [45] (Karim) and which was part of the reasoning that led the Court in that case to follow Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 (Bahar) and in turn has led this Court to follow Bahar and Karim in this case. There is nothing in the text of s 16AAC which supported this contention. None of the circumstances envisaged by s 15AB(2) of the Acts Interpretation Act 1901 (Cth) in which second materials such as an Explanatory Memorandum can be considered in the construction of legislation, are engaged.
[4]
The Crown appeals against the sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) on the following grounds:
"1. The sentencing judge erred in sentencing for Sequence 5 by imposing a sentence that did not reflect the sentencing principle that the mandatory minimum head sentence of 4 years imprisonment was for the least serious category of offending, as set out in Bahar v R [2011] WASCA 249; (2011) 45 WAR 100 and Karim v R [2013] NSWCCA 23; (2013) 301 ALR 597.
2. The sentencing judge erred in reducing the sentence imposed on Sequence 5 pursuant to s 16AAC(2) and s16AAC(3) of the Crimes Act 1914 (Cth) to reflect the Respondent's plea of guilty and co-operation.
3. The sentences imposed in respect of each of Sequences 5 and 8 and the total effective sentence and non-parole period imposed on the respondent are manifestly inadequate, in particular, but not only, because the sentencing judge:
a) Failed to adequately reflect the maximum penalties prescribed for the offences;
b) Failed to adequately reflect the mandatory minimum penalty for Sequence 5;
c) Applied a reduction in the sentence imposed on Sequence 5 to reflect the Respondent's plea of guilty and co-operation where such a reduction was not appropriate;
d) Imposed a sentence on Sequence 8 that did not adequately account for the two charges to be taken into account in sentencing for that sequence pursuant to s 16BA of the Crimes Act 1914 (Cth);
e) Failed to adequately reflect the serious nature and circumstances of the overall offending;
f) Failed to adequately reflect the principles of denunciation, punishment, and specific and general deterrence; and
g) Provided inadequate accumulation of the sentences imposed on Sequences 5 and 8."
These grounds raise fundamental questions about sentencing where the legislature has stipulated a minimum penalty.
[5]
The relevant statutory provisions
Section 474.22A was added to "Subdivision D - Offences relating to use of carriage service for child abuse material" of the Criminal Code by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth). The effect of the insertion of s 474.22A was to create a new Commonwealth offence of intentionally possessing child abuse material which has been accessed. This was substantively different from the offence of accessing material, created by s 474.22. Both provisions included the connection with a carriage service in order to ensure their constitutionality pursuant to s 51(v) of the Constitution.
Those provisions relevantly provide:
"474.22 Using a carriage service for child abuse material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4."
[Emphasis in original.]
[6]
The facts
The facts relevant to the offences for which the respondent stood to be sentenced and the offences which he asked to be taken into account in the sentence for sequence 8 were agreed and can be briefly summarised.
On 1 July 2020, a search warrant was executed at the respondent's home. Police seized a hard drive, a laptop computer, a tablet and a mobile phone belonging to the respondent. Forensic digital analysis of these devices revealed a total 2,653 files (according to the agreed statement of facts) containing child abuse materials on these devices. The offence of possession was sequence 5.
Forensic analysis also revealed that the respondent had used a carriage service to access 7 of the 42 files located on the laptop, including images and videos depicting penetrative intercourse between adults and children (sequence 8).
The respondent asked that two further offences, sequences 7 and 10, be taken into account pursuant to s 16BA of the Crimes Act in the sentence imposed for sequence 8. The sequence 7 offence involved the respondent using the internet to access 33 of the 42 files located on the laptop on 20 September 2019. The sequence 10 offence involved the respondent using his mobile telephone between 27 June 2020 and 1 July 2020 to access a website which contained four written stories describing incestuous sexual encounters between two seven-year-old boys and their two 14-year-old brothers which was classified as child abuse material.
The respondent was sentenced on the basis that the sequence 5 offence was a second child sexual abuse offence, which attracted the operation of s 16AAB(1) of the Crimes Act. It was accepted that, in 2001, the offender was convicted of seven counts of aggravated indecent treatment of a child under 16 years contrary to s 210 of the Criminal Code 1899 (Qld) (the Queensland Code), for which a total effective sentence of 3½ years with a non-parole period of 16 months was imposed (the Queensland offence). At the sentence hearing, the respondent accepted that an offence contrary to s 210 of the Queensland Code was a State registrable offence and that therefore the minimum penalty in s 16AAB of the Crimes Act applied, subject to s 16AAC. The respondent now challenges, in his response to ground 1, the proposition that the Queensland offence was a State registrable child sex offence. His challenge will be addressed later in these reasons.
[7]
The two main approaches
Before turning to the remarks on sentence it is convenient to summarise the two main approaches to sentencing which are, at least theoretically, available where mandatory minimum sentences are prescribed.
[8]
The Bahar approach of using the minimum penalty to establish a range from the outset
The first approach will be referred to as the Bahar approach because it was the approach endorsed by the Western Australian Court of Appeal in Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 (Bahar). The Bahar approach involves the sentencing judge having regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentences in the same way as the maximum penalty is used to prescribe the upper limit of the range of appropriate sentences. It follows from the principle that the sentence must be proportionate to the objective gravity of the offence (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ)) that the mandatory minimum sentence applies as a pre-determined base line for cases which involve the least serious offending.
[9]
The Pot approach of applying the minimum term provisions only if the outcome falls below the minimum
The second approach will be referred to as the Pot approach because it was the approach taken by Riley CJ in R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) (Pot).
The Pot approach is a two-stage approach which involves the sentencing judge having regard to the maximum penalty (but not, in the first stage, the minimum penalty) and applying all relevant sentencing principles. It is only if the ultimate sentence to be imposed falls below the minimum penalty that the minimum penalty has any effect. On this approach, if a minimum sentence of 4 years has been stipulated, an offender who, but for the stipulation of a minimum sentence, would have received a sentence of 1 year, will receive the same sentence as the offender, in respect of whom a sentence of 4 years was arrived at without taking into account the statutory minimum. Such a result tends to compromise the principles of equal justice.
The Pot approach inflates the sentences for those offences at the lower end, which would otherwise have been below the minimum penalty but has no effect on those above the minimum penalty.
In this respect there is an analogy between the two-stage approach and the approach to the jurisdictional limit which prohibits the Local Court imposing a sentence exceeding 2 years' imprisonment. In R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 (Doan) at [35], Grove J held that the 2-year jurisdictional limit did not operate as a maximum penalty and thus a sentence of 2 years ought not be reserved for the worst case. His Honour said, at [35]:
"… where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit."
This approach to jurisdictional limits (as opposed to minimum penalties, which did not arise) was endorsed by the High Court in Park v The Queen (2021) 95 ALJR 968; [2021] HCA 37 at [19] and [23] (Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ).
[10]
The approaches taken in the authorities
In Bahar, the Court was concerned with the construction of s 233C of the Migration Act 1958 (Cth) which specified a mandatory minimum sentence for an offence contrary to s 232A, which provided that "a person who organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people … and does so reckless as to whether the people had, or have, a lawful right to come to Australia; is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both."
Section 233C provided:
"(1) This section applies if a person is convicted of an offence under section 232A … unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
(2) The court must impose a sentence of imprisonment of at least:
(a) 8 years, if the conviction is for a repeat offence; or
(b) 5 years, in any other case.
(3) The court must also set a non-parole period of at least:
(a) 5 years, if the conviction is for a repeat offence; or
(b) 3 years, in any other case."
The Court in Bahar expressly rejected the Pot approach. The rationale for the Bahar approach appears from the reasons of McLure P as follows:
"53 The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.
54 Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied."
[11]
The proceedings in the Court below
At the sentence hearing on 8 June 2021, the Crown tendered the agreed statement of facts (the effect of which is summarised above), the court attendance notices, the schedule under s 16BA of the Crimes Act, the respondent's criminal history and the transcript of proceedings in the Queensland District Court. The respondent tendered reports of psychologists, Dr Roger Blake and Graham Randall; an affidavit by the respondent; a court attendance notice relating to charges laid against his neighbour for abusive, violent conduct towards the respondent as a result of the charges and his plea of guilty and an associated Computerised Operational Policing System (COPS) report. A sentencing assessment report was also tendered. The respondent gave evidence and was cross-examined. When asked whether he would "behave like this again", he said "no" and explained:
"Because it hurts so many people, it hurts children and it's just unacceptable, and it's not the just the children, it's the - it's the ripple effect when you throw that stone into a pond and it goes out, and it goes to my family, my two elderly brothers, my friends that I have left, and even my work colleagues who I worked with; it hurts everybody. I want to be productive, not destructive."
Dr Blake also gave evidence and was cross-examined.
In the Court below, the Crown contended that the Bahar approach was correct. The respondent's counsel submitted first, that, as Bahar concerned provisions of the Migration Act, it did not apply to the Crimes Act provisions or to offences under the Criminal Code and that the sentencing judge was not bound to follow the Bahar approach. Second, the respondent's counsel emphasised that s 16AAB of the Crimes Act neither required the Court to impose more than the mandatory minimum, nor provided that the statutory minimum sentence created a base point from which sentences were to be imposed. Third, he submitted that s 16AAB did not expressly provide that minimum sentences were only to apply to cases falling at the lowest end of seriousness. Fourth, he relied on the absence of any corresponding provision to s 16AAC(2) of the Crimes Act in the Migration Act.
The Crown contended that the offending was objectively "extremely serious". The respondent contended that, having regard to all relevant factors, including the causal effect of the respondent's mental illness, the objective seriousness of the sequence 5 offence was in the middle of the range and the objective seriousness of the sequence 8 offence fell below the mid-range.
[12]
The remarks on sentence
In the remarks on sentence delivered on 25 June 2021, his Honour set out the relevant statutory provisions and the parties' submissions. His Honour contrasted the provisions of the Migration Act, which were relevant in Bahar, with ss 16AAB and 16AAC. His Honour said, at [29]:
"The legislation provides floor and ceiling penalties within which a sentencing judge has a sentencing discretion. However unlike the legislation I am asked to interpret there is no s 16AAC(3)(a), (b) or (c) which allows for a reduction of up to 50% taking into account the plea of guilty and law enforcement cooperation. Those provisions are absent from the Migration Act considered by the Court of Appeal. The Crown submits that the minimum sentence may only be applied to cases in the least culpable category of seriousness. In my view there is nothing in the legislation of the section which suggests, let alone requires, that it be understood as applying to minimum sentences to cases in the least culpable category of seriousness. The section says nothing about seriousness, it simply requires a sentence to be imposed of at least the specified length subject to s 16AAC(3)(a) to (c). The Crown's proposed construction of s 16AAB cannot operate harmoniously or consistently with the discretionary reductions for assistance and guilty pleas under s 16AAC."
On that basis, his Honour accepted the respondent's submission that the authorities which concerned the Migration Act, including Bahar were not binding on him.
For sequence 8, his Honour noted that sequences 7 and 10 were also to be taken into account. His Honour listed the following matters as relevant to an assessment of the objective seriousness of sequence 8: the number of files accessed (seven); the material involved prepubescent children in sexual acts on other children and, in one instance, on an adult male; the sexual activity included fellatio, anal and vaginal penetration, exposure of genitalia and urination; a number of children were depicted; the respondent acted alone and accessed the material for his own use rather than for sale or dissemination; there was no sophisticated planning or organisation; and there was no risk of the material being seen by a vulnerable person or by anyone who was susceptible to act in the way depicted. On the basis of these matters, his Honour accepted the respondent's counsel's submission that sequence 8 fell below the middle of the range of objective seriousness.
[13]
Ground 1: alleged failure to follow the Bahar approach
Mr Wilson SC, who appeared with Mr Averre for the respondent, accepted that the sentencing judge had not followed the Bahar approach. He submitted that his Honour was entitled to distinguish Bahar and that the Pot approach applied to a provision such as s 16AAB of the Crimes Act.
However, he submitted, as a preliminary issue, that s 16AAB did not apply in the present case for the following two discrete reasons:
1. the relevant conduct which constituted the sequence 5 offence was engaged in before s 474.22A of the Criminal Code commenced on 23 June 2020; and
2. the offence committed by the respondent in Queensland was not a State registrable child sex offence within the meaning of s 3 of the Crimes Act.
It is convenient to address these preliminary matters before turning to the submission that the Bahar approach did not apply to a provision such as s 16AAB of the Crimes Act.
[14]
Whether the relevant conduct which constituted the sequence 5 offence was engaged in before s 474.22A commenced on 23 June 2020
The respondent argued that it was an element of an offence under s 474.22A that "the person used a carriage service to obtain or access the material": s 474.22A(1)(c). He submitted that:
1. use of a carriage service to obtain or access the material amounted to "conduct" within the meaning of s 4.1(2) of the Criminal Code which defined conduct as meaning "an act, an omission to perform an act or a state of affairs";
2. the conduct in (1) was, necessarily, the conduct of the respondent;
3. therefore, the conduct was part of the "relevant conduct" referred to in cl 3 of Part 1 of Schedule 6 of the 2020 Act, which needed to have been engaged in on or after the commencement of the Part, 23 June 2020;
4. it was common ground the conduct could not be shown to have been engaged in on or after 23 June 2020; and
5. accordingly, s 16AAB of the Crimes Act did not apply.
The Crown argued, in response, that to characterise the use of the carriage service to obtain or access the material as "conduct" in (1) was at odds with the provisions of the Criminal Code which, correctly applied, resulted in such use being a "circumstance" within the meaning of s 4.1(c), rather than "conduct". The Crown's analysis depended on the following provisions of the Criminal Code:
"4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act."
[Emphasis in original.]
Section 6.2(2) of the Criminal Code provides:
"6.2 Absolute liability
…
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
…"
[Emphasis in original.]
The Crown contended that, while s 474.22A contains the physical elements of both possessing and accessing the material, no fault element attached to s 474.22A(1)(c) (that the material in the possession of an accused was obtained or accessed using a carriage service).
[15]
Whether the offence committed by the respondent in Queensland was not a State registrable child sex offence within the meaning of s 3 of the Crimes Act
The respondent further submitted that an offence under s 210 of the Queensland Code did not become a registrable offence until 1 January 2005, when the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) commenced. He submitted that because it was not a registrable offence either when the respondent committed the s 210 offence or when he was convicted of that offence (in 2001), it did not fall within the definition of State registrable offence in s 3 of the Crimes Act.
I do not regard the respondent's submissions as adequately taking account of the wording of the definition of State registrable offence. It is noteworthy that the legislature has chosen to use the following words to express its intention:
"an offence … that a person becomes, or may at any time have become, a person whose name is entered on a child protection register (however described) of a State … for committing; and … in respect of which a child was a victim …"
[Emphasis added.]
The use of the indefinite article "a" before "person" indicates that the legislature intended to capture any State child sex offence that at any time may lead a person (not necessarily the offender) to be placed on a child protection register. Thus the relevant criterion is whether the offender has been convicted of an offence that falls within the relevant definition, irrespective of whether the offender could ever have been placed on a register. The focus of the provision is on the type of offence and not on either the specific offender or the actual offence committed by the offender, except in so far as the latter forms part of a type.
When the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) commenced, the respondent became a person who had been convicted of a State registrable child sex offence and thus, when he was to be sentenced for sequence 5, s 16AAB applied to him.
[16]
Whether Bahar is distinguishable such that it does not apply in the circumstances of the present case
As these preliminary matters have been decided adversely to the respondent, it is necessary to address Mr Wilson's principal submission that there was an important distinction between the following two categories and that the Bahar approach only applied to the first:
1. legislative provisions where the prescription of a minimum penalty serves to indicate the view of Parliament as to the seriousness of a particular offence (ss 233A and 233C of the Migration Act); and
2. legislative provisions where the prescription of a minimum penalty does not depend on the seriousness of the offence of itself but rather on the circumstances of the offender who committed it, and, in particular, whether the offender had previously been convicted of an offence of a particular category (the application of s 16AAB of the Crimes Act to an offence contrary to s 474.22A(1) of the Criminal Code).
Mr Wilson submitted that Bahar itself was an example of category (1) since all that was required was that the offender be convicted of an offence against s 233C of the Migration Act before the minimum penalty in s 236B applied. He contrasted these provisions with the application of s 16AAB of the Crimes Act to the sentencing of the respondent for an offence contrary to s 474.22A(1), which he submitted fell into category (2). He submitted that in category (2), the Bahar approach was inapplicable because the legislature had chosen, as one of the criteria for imposing a minimum penalty, matters germane to the offender (that the offender had been previously convicted of an offence of a particular type).
Mr Wilson submitted that this classification was reinforced by the circumstance that there was no absolute minimum penalty since s 16AAC(3) provided for the application of discounts for a plea of guilty or co-operation with authorities, which were capable, in certain circumstances, of bringing the penalty below the minimum penalty otherwise stipulated.
I am not persuaded that the dichotomy for which Mr Wilson contended is either maintainable or has the consequence for which he contended. Section 236C of the Migration Act also builds in the factor of recidivism by imposing higher minimum penalties for "a repeat offence" than "in any other case." The differences between ss 233C and 236B of the Migration Act on the one hand and s 16AAB of the Crimes Act and s 474.22A of the Criminal Code on the other are, in my view, formal and reflect different drafting styles but are nonetheless substantially the same.
[17]
Ground 2: alleged discounts for plea of guilty or law enforcement cooperation not available where the assessment of objective seriousness was not in the lowest category
At the hearing of the appeal, the Crown abandoned the argument for which it contended in written submissions that no deduction for a plea of guilty or cooperation with law enforcement agencies could be made unless the sentence would otherwise be one at the statutory minimum of 4 years. In these circumstances, the Crown accepted that ground 2 had no separate operation beyond grounds 1 and 3. Accordingly, it is not necessary to address it.
[18]
Ground 3: manifest inadequacy
There are some similarities between a ground of manifest excess and one of manifest inadequacy in that each involves a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). While a ground of manifest excess need not be determined if another ground is made out which requires this Court to re-sentence, the position is otherwise for a ground of manifest inadequacy. The reason for this is that manifest inadequacy is relevant to, if not determinative of, the question whether this Court should intervene on a Crown appeal.
The Crown has particularised the bases on which it alleges that the sentence was manifestly inadequate, as well as relying on the sentence as a whole. Particular (b) has been considered in the context of ground 1. Particular (c) which, as noted above, falls away with the abandonment of the argument which underpinned ground 2.
The Crown supported its contention that the aggregate sentence was manifestly inadequate by contending that the indicative sentences for sequences 5 and 8 were also inadequate (consistently with this Court's summary of principles in JM v R [2014] NSWCCA 297 at [40], proposition 11 (R A Hulme J, Hoeben CJ at CL and myself agreeing). However, before addressing the indicative sentences, it is important to recognise the significant overlap between sequences 5 and 8, for which the respondent was to be sentenced, as well as sequences 7 and 10 which were to be taken into account on the sentence for sequence 8.
As was recognised in Allison at [6], there is a significant overlap between an offence such as in s 474.22(1), which provides for specific fault elements in relation to access to child abuse material, and s 474.22A(1) where accessing child abuse material using a carriage service is a strict liability element. The Court said in Allison:
"45 … the critical hallmark of the possession offence is that the accused has possession or control of the medium (computer, data storage device or document) in which the material is captured. Possession is not necessarily denoted by the 'additional step' of saving the material. As the definition of 'access' shows, access may include copying or moving the material to any other place in a computer or to a data storage device, therefore access may in a given case include the step of downloading and saving material onto a computer hard drive or a data storage device. But unless the relevant medium is one that the accused has or takes possession or control of, the offence does not pass beyond the access offence. Saving the material for the purpose of ongoing or future use would usually imply that the user retains possession or at least control of the material, but merely downloading or saving it would not necessarily carry that implication. That is, the additional step is better described as 'keeping', rather than 'saving', the material. …
46 Regardless of that minor qualification, the two offences are nonetheless aimed at different behaviours and that is reflected in their different elements. This is not a case where there would be nothing left to be punished once the applicant is convicted and sentenced for the possession offence.
47 This conclusion is supported (although not compelled) by the cases concerning the sentencing for overlapping Commonwealth access offences and State possession offences. In those cases the courts have recognised the different aspects of the distribution and possession of child abuse material caught by the access offence and an offence of possession. The two forms of offences are directed at different but related vices."
[Footnotes omitted.]
[19]
The residual discretion
On a Crown appeal, this Court retains a residual discretion to decline to intervene with a sentence, even one which has been found to be manifestly inadequate: CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9. It is for the Crown to negate any reason why the discretion not to interfere ought not be exercised.
Mr Wilson did not suggest that there had been any relevant delay in filing or prosecuting the Crown appeal. Indeed, he acknowledged that the Crown appeal was timely and had been brought expeditiously. He submitted that, as the respondent was the first person to be sentenced under the sentencing provisions inserted into the Crimes Act in 2012, this Court could provide guidance to sentencing judges in these reasons without disturbing the sentence imposed. He submitted that a refusal to intervene would not undermine confidence in the proper administration of the criminal justice system and that, in these circumstances, this Court should dismiss the appeal.
I consider there to be a compelling reason for this Court to intervene in the present case. For the reasons given above, the sentencing judge failed to comply with the statutory mandate in s 16AAB of the Crimes Act. This breach ought not be left unrectified. As I am satisfied that the aggregate sentence imposed by the sentencing judge was manifestly inadequate, it is not necessary to address whether this Court would have been obliged to intervene in these circumstances, had I not been so satisfied.
[20]
Re-sentence
The objective and subjective matters which applied at the time of sentencing are sufficiently set out in the remarks on sentence set out above.
On re-sentence, the respondent relied on his affidavit of 23 May 2022 in which he deposed as follows:
"2 This is my first time in custody, and I have been in custody since 25 June 2021.
3 When I first went into custody, I was in protective custody at Junee due to the nature of my offences. Other inmates found out what I was in gaol for, and most days I was subject to a lot of verbal abuse and intimidation. I was always very anxious that I was going to be physically assaulted.
4 This behaviour continued until was reclassified C2 and removed from protective custody about 5 weeks ago. I am very active in my new pod of about 12 inmates. We share cooking and cleaning duties and all get along pretty well.
5 My first job in custody was in the kitchen. Because of Covid, there were lots of lockdowns and I would volunteer.to work additional hours, sometimes for 10 hours a day, 7 days a week. I didn't mind the extra work as I preferred to keep busy.
6 About 3 months ago I then changed jobs and for a while was doing office cleaning.
7 After being reclassified, I applied for a gardening role. For the last month or so I have been working in the prison gardens, outside the gaol walls. This is a very trusted position. I largely work on my own and am subject to minimum supervision. I work 5 days a week in charge of the herb and hothouse section. I love this job and look forward to work each day.
8 I have done several courses in custody including;
- Furniture making certificate 2
- Work place health and safety
- Food handing
- 'Positive Lifestyle', this was an 8 week program run by the prison reverend.
10 This course has helped me enormously in changing my way of thinking and eliminating negative thoughts. I still maintain fairly regular contact with the reverend, which I enjoy.
11 I am currently being treated for depression and take 100ml daily of antidepressant Pristique. It took a little while to settle on the appropriate dosage, but I now feel quite stable and settled.
12 My only family is my two brothers. One lives in Western Australia and the other lives in Victoria. I don't get any face to face visits, but I do get to speak on the phone with my brothers about every 2 weeks.
13 When I am finally released from custody, I would love to be able to start my own organic herb supply business to local restaurants and cafes in the Lismore area."
[21]
Proposed orders
For the reasons given above, I propose the following orders:
1. Appeal allowed.
2. Set aside the sentence imposed by Grant DCJ on 25 June 2021.
3. Impose an aggregate sentence of 4 years and 6 months' imprisonment commencing on 23 June 2021 and expiring on 22 December 2025 with a non-parole period of 3 years commencing on 23 June 2021 and expiring on 22 June 2024.
4. Note the following indicative sentences:
1. for sequence 5, the indicative sentence is 4 years and 2 months' imprisonment; and
2. for sequence 8 (taking into account sequences 7 and 10) the indicative sentence is one year's imprisonment.
[22]
Amendments
06 June 2022 - Representation corrected - coversheet
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Decision last updated: 06 June 2022
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Delzotto
Legislation Cited (14)
Anti-People Smuggling and Other Measures Act 2010(Cth)
Border Protection (Validation and Enforcement Powers) Act 2001(Cth)
Combatting Child Sexual Exploitation Legislation Amendment Act 2019(Cth)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020(Cth)
Criminal Law Amendment (Home Burglary and Other Offences) Act 2015(WA)
When the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004(Qld)
Third, in DPP (NSW) v Burton [2020] NSWCCA 54 at [33], Basten JA noted that it is not necessary for the Crown on an appeal against sentence to establish that the sentence was manifestly inadequate, although that is a factor in addressing both resentencing and the residual discretion. In Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [242] to [243], N Adams J (with whom Hoeben CJ at CL at [159] and Button J at [161] agreed) queried this before stating that "[f]or my part, it seems doubtful that this Court would ever decline to exercise its residual discretion and go on to intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate". It may be that a case where a sentencing judge has failed to impose a mandatory minimum sentence is one of the rare cases where this Court would intervene without a finding of manifest inadequacy although the fact that the sentence imposed was below the mandatory minimum may, by definition, mean that it was manifestly inadequate. Given the findings of Adamson J, with which I agree, it is not necessary to consider this further.
R A HULME J: I agree with Adamson J.
ADAMSON J: On 25 June 2021, Enrico Delzotto (the respondent) was convicted and sentenced by Grant DCJ for the offences set out in the table below. His Honour imposed an aggregate sentence of 3 years and 3 months' imprisonment with a non-parole period of 2 years and 2 months' imprisonment. All references to legislation in these reasons are, unless otherwise stated, references to the Criminal Code (Cth). All references to years are to years' imprisonment.
Sequence Offence/provision Minimum sentence Maximum penalty Indicative sentence
5 On 1 July 2020 possess/control child abuse material in the form of data held in a computer or contained in a data storage device and accessed using a carriage service: s 474.22A(1) 4 years 15 years 2 years and 9 months
8 Between 5 October 2019 and 3 March 2020 use carriage service to access child abuse material: s 474.22(1) N/A 15 Years 18 months
Taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) in the sentence for sequence 8
7 On 20 September 2019 use carriage service to access child pornography material contrary to s 474.19(1)
10 Between 27 June 2020 and 1 July 2020 use carriage service to access child abuse material contrary to s 474.22(1)
Sections 16AAA (Minimum penalties for certain offences), 16AAB (Second or subsequent offences) and 16AAC (Exclusions and reductions - minimum penalties) were added to the Crimes Act by Part 1 of Schedule 6 of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (the 2020 Act).
Sections 16AAA and 16AAB of the Crimes Act each contain a table listing various offences against the Criminal Code in column 1, and in respect of each there is a period of years in column 2 (which is entitled "sentence of imprisonment").
Section 16AAB provides that if a person has been convicted of a Commonwealth child sexual abuse offence described in column 1 of the table and has been previously convicted of a child sexual abuse offence, the court must impose "for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item". Item 24A, which relates to an offence against s 474.22A(1) of the Criminal Code, specifies a period in column 2 of 4 years.
Section 3 of the Crimes Act defines "child sexual abuse offence" as meaning, relevantly, a Commonwealth child sex offence; and a State or Territory registrable child sex offence. An offence against s 474.22A(1), being an offence in Subdivision D of Division 474, which creates offences relating to use of carriage services in connection with child abuse material, is a Commonwealth child sex offence, as that term is defined in s 3 of the Crimes Act. A State registrable child sex offence is defined by s 3 of the Crimes Act as an offence for the commission of which a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory and in respect of which a child was a victim or intended victim (or the offending involved child abuse material).
Section 16AAC(2) of the Crimes Act permits the Court to impose a sentence of less than the period specified in column 2 of the table in s 16AAA or s 16AAB on the basis of an offender's plea of guilty for the purposes of s 16A(2)(g) or cooperation with law enforcement agencies for the purposes of s 16A(2)(h). Its terms are as follows:
"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."
Clause 3 of Part 1 of Schedule 6 of the 2020 Act (the application provisions) relevantly provided:
"3 Application provisions
(1) Subject to subitem (2), the amendments made by this Part apply in relation to conduct engaged in on or after the commencement of this Part.
(2) Section 16AAB of the Crimes Act 1914, as inserted by this Part, applies in relation to a conviction for a Commonwealth child sexual abuse offence where the relevant conduct was engaged in on or after the commencement of this Part (regardless of whether the relevant previous conviction of the person for a child sexual abuse offence occurred before, on or after that commencement)."
[Emphasis added.]
The Bahar approach has been applied to the minimum penalty provisions in the Migration Act by the Queensland Court of Appeal in R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338; R v Nitu (2013) 1 Qd R 459; [2012] QCA 224; R v Latif: ex parte Cth DPP [2012] QCA 278; and by the Victorian Court of Appeal in DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134 at [43].
Bahar was considered by a five-judge bench of this Court in Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 (Karim), which also concerned the provisions of the Migration Act. At [42]-[45], Allsop P (Bathurst CJ, Hall and Bellew JJ agreeing) considered the Pot approach to be both open and arguable but was not persuaded that the Bahar approach was plainly wrong. Indeed, his Honour favoured the Bahar approach for the reasons given at [45] as follows:
"There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], '[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect' (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences."
The Bahar approach has also been approved in the context of State legislative provisions in Eldridge v The State of Western Australia [2020] WASCA 66 (Eldridge). In that case, s 401(4)(b) and s 401(5) of the Criminal Code 1913 (WA) relevantly provided:
"…
(4) Subject to section 401A(4), where a person convicted under this section of a home burglary (the current offence) is a repeat offender, whether or not the conviction for the current offence is a relevant conviction the court sentencing the person for the current offence -
…
(b) if the current offence was committed on or after the commencement day -
(i) if the person is an adult offender, notwithstanding any other written law, must impose a term of imprisonment of at least 2 years
…
(5) A court must not suspend a term of imprisonment imposed under subsection (4)."
The Western Australian Court of Appeal (Buss P, Mazza and Mitchell JJA) said, of present relevance:
"[41] The effect of these provisions is clear. Parliament has deprived a court sentencing a repeat offender for an offence contrary to s 401(2)(b) of the Code of the powers to impose a non-custodial sentence and to impose a sentence of less than 2 years' imprisonment.
[42] Section 401 of the Code was amended by the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA), with effect from 30 October 2015, to increase the mandatory minimum penalty for 'third-strike' repeat adult offenders from 12 months' to 2 years' immediate imprisonment.
…
[44] The policy impetus for the increase in the mandatory minimum penalty from 12 months' to 2 years' immediate imprisonment was explained by the Attorney General in his second reading speech. In particular, the Attorney said that:
(a) the volume of burglaries committed in Western Australia was 'at an unacceptably high level';
(b) home burglaries, particularly in circumstances of aggravation and in the course of which violence may be committed, were 'a major source of worry to the community'; and
(c) the government was determined 'to ensure that burglars who commit numerous home invasions, which can involve serious violent offences, are incarcerated for longer periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to reflect community abhorrence of such offending'.
[45] The maximum penalty and any mandatory minimum penalty fixed by the Parliament for an offence demonstrate the Parliament's view of the gravity of the offence. They must be taken into account in determining, in a particular case, the appropriate sentence.
…
[50] Subject to s 401(4)(b) and s 401(5) of the Code, the manner in which the sentencing discretion operates within the floor and ceiling is in accordance with the general sentencing principles set out in the Sentencing Act, including the fundamental sentencing principle of proportionality (contained in s 6(1) of the Sentencing Act), as supplemented by the common law.
[51] Thus, as in Bahar, it would be positively inconsistent with the statutory framework which exists under State law for a sentencer to make their own assessment of the seriousness of an offence by ignoring the maximum penalty or the mandatory minimum penalty, then to impose something other than a sentence (whether as to length or type) which was incommensurate with the seriousness of the offence in order to bring it up to the statutory minimum.
[52] A question remains as to the circumstances of an offence which may properly attract the statutory minimum sentence. The approach to this question should be consistent with the reasoning of the High Court in R v Kilic in respect of the maximum sentence for an offence. As the High Court observed in Kilic [18], both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the worst type.
[53] Similarly, both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the least serious type."
Despite doubts about the correctness of the Bahar approach expressed in Dui Kol v R [2015] NSWCCA 150 by Adams J (at [11]-[16]) and McCallum J (at [27]-[30]), their Honours accepted that the sentencing judge in that case was bound to follow the Bahar approach, for the reasons given in Karim.
The High Court in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 (Magaming) rejected a challenge to the constitutionality of, relevantly, s 236B of the Migration Act, which prescribed a mandatory minimum term of imprisonment for the aggravated offence under s 233C(1) (which applied to second offences), but not for an offence under s 233A(1). At [48], the majority (French CJ, Hayne, Crennan, Kiefel and Bell JJ) said, of present relevance:
"In Markarian v The Queen, the plurality observed that '[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks'. The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick."
[Footnote omitted.]
This passage from Magaming indicates that the High Court considered that a mandatory minimum penalty is to be treated in the same way as a maximum penalty. I regard Magaming as endorsing, albeit in obiter, the Bahar approach, at least for the provisions of the Migration Act which impose a minimum penalty.
The above summary of the approaches in the authorities is sufficient to indicate the background to the parties' submissions in the proceedings on sentence and the remarks on sentence, which will be addressed below.
For sequence 5, his Honour took into account the following matters on the assessment of objective seriousness: the number of files possessed was significant; actual children were used in the creation of the material, which included children engaged in sexual acts with other children and adults as well as children masturbating; the sexual activity included fellatio, anal and vaginal penetration; a number of children were depicted in the materials; the respondent possessed the materials for his own use and not for sale or dissemination; he acted alone; although the respondent had downloaded and saved the material on three devices, his planning and organisation was not sophisticated; and there was no risk of the material being seen by vulnerable persons or persons susceptible to act in the manner depicted. His Honour assessed the objective seriousness of sequence 5 as in the mid-range.
His Honour found that the respondent's moral culpability was reduced because of a major depressive disorder, which had contributed to his offending, and was associated with his consumption of alcohol.
His Honour allowed a 25% reduction for the respondent's plea of guilty and a 5% discount for cooperation with law enforcement agencies by providing passwords to his devices and making full admissions when questioned.
His Honour recounted the respondent's subjective circumstances, which included the realisation as a child and teenager that he was homosexual, for which the respondent was beaten by one of his elder brothers. When he was 12 or 13, the respondent was sexually assaulted by an older boy.
After a car accident at the age of 20, the respondent became unfit for heavy physical work and trained as a chef. He was "reasonably high functioning" but drank to excess and took drugs to "blank out and deflect from the attraction he felt to male children."
In 2001, the respondent was convicted and sentenced for indecently treating a vulnerable 8-year-old boy who had been entrusted to his care. He made full admissions and pleaded guilty. Following his release when the 16-month non-parole period expired, he engaged in drug and alcohol counselling, which lapsed when he resumed full-time work.
In 2019 the respondent moved to Mulwala to work as a chef at the local pub. He led an isolated life and drank heavily. He commenced searching for and downloading child pornography. He suffered from suicidal ideation. After his arrest for the index offences, he was released on bail. He was threatened by a neighbour who tried to break into his home and who damaged his car. In early 2021, after his plea of guilty in the Local Court, he was regularly abused. He could not shop in the town in which he lived because of the abuse.
His Honour accepted that the respondent participated in fortnightly counselling sessions which led him to stop drinking and develop insight. His Honour found that the respondent recognised the seriousness of the offending and understood its effects. His Honour found that the respondent had "prospects of rehabilitation". His Honour took into account as extra-curial punishment the abuse to which the respondent was subjected.
The sentencing judge noted the importance of general deterrence but considered that, having regard to the respondent's insight and positive steps towards rehabilitation, significant weight did not need to be given to personal deterrence.
Further, the Crown relied on Allison (a pseudonym) v R [2021] VSCA 308; (2021) 362 FLR 445 (Allison) in which the Victorian Court of Appeal (Forrest and Walker JJA, Macaulay AJA) at [41] rejected the submission that the use of a carriage service to obtain or access material in s 474.22A amounted to "conduct" and held that it was a "circumstance", which, unlike the access offence in s 474.22(1), did not attract a fault element. I am not persuaded that Allison is wrong and, thus, I ought not depart from the decision, being that of another Australian intermediate court of appeal: see the authorities referred to by Allsop P in Karim at [44].
On the basis of Allison, the access in s 474.22A(1) is a circumstance, albeit one that the accused must have brought about, rather than conduct. Accordingly, it is not "relevant conduct" within the meaning of cl 3 of Schedule 6 of Part 1 of the 2020 Act. Therefore, the Crown did not need to establish that the respondent accessed the material on or after 23 June 2020. Section 474.22A, intentionally possessing child abuse material which has been accessed, is to be contrasted with the accessing of material, which was criminalised by s 474.22.
For these reasons, although the respondent accessed almost all of the material before 23 June 2020, the "relevant conduct" for the purposes of the application provisions occurred after that date.
I consider that the reasoning of the Western Australian Court of Appeal in Eldridge (extracted extensively above) applies to the present case.
The legislative history of ss 16AAB and 16AAC of the Crimes Act and s 474.22A of the Criminal Code also favours the proposition that the differences between these provisions and the corresponding provisions of the Migration Act do not affect the appropriateness of the Bahar approach.
Section 233C was inserted into the Migration Act in 2001 by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). Section 233A created the offence of people smuggling. Aggravated offences were created by s 233B (where the conduct gave rise to the danger of death or serious harm), s 233C (where at least 5 people were being smuggled) and s 234A (where false documents or information relating to non-citizens were being used).
Section 236B, which was inserted into the Migration Act in 2010 by the Anti-People Smuggling and Other Measures Act 2010 (Cth), imposed the penalties for the aggravated offences under ss 233B, 233C and 234A and provided for mandatory minimum penalties which were higher for "a repeat offence" than for a first offence.
As set out above, the approach to sentencing which these provisions required was determined by the Western Australian Court of Appeal in Bahar in 2011 and approved by this Court in Karim.
The Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the 2019 Bill) said, of present relevance:
"GENERAL OUTLINE
1. This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all stages of the criminal justice process, from bail and sentencing through to post-imprisonment options.
2. This Bill combats the evolving use of the internet in child sexual abuse and addresses community concern that the sentencing for child sex offences is not commensurate to the seriousness of these crimes.
3. This Bill amends the Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code), to:
…
● introduce a mandatory minimum sentencing scheme to apply to the Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender;
…"
In addressing the human rights implications of the Bill, the Explanatory Memorandum said, under the heading, "Ensuring appropriate penalties for child sex offences (Article 3(3) OPSC [Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography])":
"…
26. Manifestly inadequate sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children.
27. Mandatory minimum sentences reflect the seriousness of child sexual abuse, including the significant harm suffered by victims. They keep offenders out of the community where they may further offend against children and may also deter others from engaging in such behaviour.
…"
Section 474.22A of the Criminal Code and ss 16AAA, 16AAB and 16AAC of the Crimes Act were enacted well after Bahar had been decided and approved generally. I discern nothing in the legislative provisions or the extrinsic material to indicate that these provisions, notwithstanding their slightly different wording, were intended to have any materially different effect from the provisions in the Migration Act, which were considered in Bahar. Further, for the reasons given by Allsop P in Karim, the Pot approach tends to compromise the principle of equal justice, whereas the Bahar approach does not. This is a strong contextual matter which indicates that the Court ought not construe a minimum penalty provision such as s 16AAB in such a way as to compromise this principle unless the words actually require such a conclusion. The extrinsic material, which emphasises the seriousness and abhorrence of these offences and the corresponding need for serious punishment, indicates that the legislature considered that the sentences imposed for an offence under s 474.22A ought generally be increased (which is the effect of the Bahar approach), rather than that the increase be confined to less serious offences (which is the effect of the Pot approach).
Moreover, I am not persuaded that the distinction relied on by Mr Wilson between objective seriousness and subjective matters is germane to the utility and effect of minimum sentences such as to make inapplicable the Bahar approach whenever a subjective matter is introduced as a criterion which attracts a minimum sentence.
Although maximum sentences are reserved for the worst category of case, the determination whether a particular case falls within the worst category of case (and thereby warrants the maximum sentence or a sentence close to the maximum) must necessarily take into account both objective and subjective factors. Thus, a case of the highest objective seriousness may not warrant the maximum if there are mitigating subjective factors.
It is said that a maximum penalty reflects the seriousness with which Parliament views a particular offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. However, this statement must be understood in the context of general sentencing provisions. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:
"… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock), the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), after holding, at [27], that objective seriousness was to be determined wholly by reference to the nature of the offending and "without reference to matters personal to an offender or class of offenders", said at [32]:
"An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence."
It is plain from this passage that even had Mr Muldrock's offending been in the high range of objective seriousness, it would not have been appropriate to impose a sentence close to the maximum because of the significant mitigating factors. These principles were confirmed by the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18] where their Honours (Bell, Gageler, Keane, Nettle and Gordon JJ) said:
"Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type."
I do not regard the absence of an absolute minimum penalty (because of the provisions for further reduction in s 16AAC) as a relevant matter. It is for Parliament to legislate for a minimum penalty, if it so chooses, and to provide for the circumstances in which the minimum is to apply. A provision for discounts for a plea of guilty or cooperation with law enforcement agencies which can take a penalty below the stipulated minimum penalty is not a matter which constitutes a relevant distinction between the provisions in Bahar and the provisions in issue here.
Mr Wilson also referred to the circumstance that the provisions in the Migration Act required the imposition of a sentence of full-time imprisonment by way of both a mandatory minimum head sentence and a mandatory minimum non-parole period. By contrast, s 16AAB of the Crimes Act neither requires a sentence of full-time imprisonment to be imposed, nor that any non-parole period be of a particular length. While these matters reflect different legislative choices, I am not persuaded that they make the Bahar approach inappropriate or render the Pot approach appropriate.
In conclusion, I am not persuaded that there is any relevant distinction between the provisions in the Migration Act which were considered in Bahar and the provisions which are at issue here which would warrant a different conclusion about the applicability of the Bahar approach in the present case.
For these reasons, I am satisfied that ground 1 has been made out.
I note, for completeness, that this Court's attention was drawn to R v Hurt (No 2) [2021] ACTSC 241 (Mossop J), from which decision an appeal has been heard but not determined. R v Hurt (No 2) also concerned the same provisions of the Crimes Act and the Criminal Code, with which the present appeal is concerned. This Court was informed that, notwithstanding that it had heard the appeal before this Court heard the present appeal, the Full Court of the ACT Supreme Court would defer handing down its decision until this Court had handed down its decision.
Two of the questions which arise in the present case also arose in R v Hurt (No 2): first, whether the Bahar approach should be followed or an approach consistent with the obiter remarks of Adams and McCallum JJ in Dui Kol v R ought be taken; and, second, whether the minimum penalty (for a second offence) could apply in relation to all of the material the subject of the possession offence, in circumstances where some of that material was accessed prior to the date when the amended penalty regime came into effect.
In circumstances where a Full Court of the ACT Supreme Court has heard but not determined the appeal, I do not propose to say anything about R v Hurt (No 2).
Sequence 5 involved the respondent accessing or obtaining and possessing some 2,653 child abuse material files. Sequence 8 involved the respondent intentionally accessing 7 of the 2,653 files which were the subject of sequence 5. Sequence 7 involved another 33 of the files the subject of Sequence 5 and sequence 10 involved four additional files comprising text "stories".
The Crown has not challenged the sentencing judge's assessment of the objective seriousness of sequence 5 as being mid-range and sequence 8 as being below the mid-range. Sequence 5 was the more serious offence. The subjective factors are substantially the same for each offence.
It was common ground that the sentence for sequence 5, but for discounts made pursuant to s 16AAC of the Crimes Act for the plea and law enforcement cooperation, would have been 4 years, (4 years less 30% is 2 years and 9 months). A sentence of 4 years (disregarding deductions for the plea and cooperation) for sequence 5 would only be appropriate, on the Bahar approach, for a case where the objective seriousness was in the lowest category. While there was a relatively strong subjective case because of the respondent's childhood background and trauma and his mental illness which was found to be causative, the objective seriousness of sequence 5 was found to be in the mid-range. Despite the substantial subjective factors, I do not regard an indicative sentence of 4 years for the sequence 5 offence (disregarding for present purposes the discounts for the plea of guilty and law enforcement cooperation) as complying with the statutory mandate in s 16A of the Crimes Act that the Court impose a sentence "of a severity appropriate in all the circumstances of the offence."
The indicative sentence for sequence 8, disregarding discounts but taking into account sequences 7 and 10, was 2 years and 2 months (26 months less 30% is 18 months). I do not regard this indicative sentence as inadequate, given the overlap with sequence 5 and the relatively small number of files involved.
I regard the aggregate sentence as manifestly inadequate, in part because the indicative sentence for sequence 5 does not adequately reflect its objective seriousness.
Although the sequence 5 offence is in the mid-range of objective seriousness, there are substantial subjective factors in mitigation, including remorse and contrition. I regard the respondent's prospects of rehabilitation as having been improved by his time in custody and regard his risk of re-offending to be reduced because of the insight he has shown into the circumstances which render it more likely for him to re-offend and his determination to put his life on a better course. It is also an important factor that his attraction for young boys appears to have been engendered by his traumatic childhood, at a time when he had no control and little influence on his circumstances.
Taking into account the objective seriousness of sequence 5 and the mitigating factors, I consider a term of 6 years to be an appropriate pre-discount sentence for the sequence 5 offence. I understood it to be accepted that a discount of 25% for the plea of guilty and 5% for the law enforcement cooperation was appropriate. Once this discount has been applied, the indicative sentence for sequence 5 is 4 years and 2 months.
I consider, on re-sentence, that a term of 18 months is an appropriate pre-discount sentence for the sequence 8 offence, taking into account the sequence 7 and 10 offences. That this happens to correspond with the sentencing judge's figure is coincidental. A discount of 30% results in an indicative sentence of one year.
I consider that an aggregate sentence of 4 years and 6 months is sufficient to take account of the significant overlap between the conduct in sequence 5 and the conduct in sequences 7, 8 and 10 (bearing in mind that sequences 7 and 10 are to be taken into account in the sentence for sequence 8).
The ratio between the head sentence and the non-parole period fixed by the sentencing judge was 66.66%. I consider this ratio to be appropriate in the present case where, although the prospects of rehabilitation are reasonably good, the respondent's rehabilitation may be assisted by a longer period on parole. I propose a non-parole period of 3 years.