[2011] WASCA 249
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
CMB v Attorney General for New South Wales (2015) 256 CLR 346
[2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321
Source
Original judgment source is linked above.
Catchwords
[1999] HCA 46
Bahar v The Queen (2011) 45 WAR 100[2011] WASCA 249
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
CMB v Attorney General for New South Wales (2015) 256 CLR 346[2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Everett v The Queen (1994) 181 CLR 295[1994] HCA 49
Glasheen v R [2022] NSWCCA 191
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
Ibbs v The Queen (1987) 163 CLR 447[1987] HCA 46
Johnson v The Queen (2004) 218 CLR 451[2004] HCA 15Karim v RMagaming v RBin LahaiyaBayu v RAlomalu v R (2013) 83 NSWLR 268[2013] NSWCCA 23
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37.
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
Parente v R [2017] NSWCCA 284
Pearce v The Queen (1998) 194 CLR 610
[1998] HCA 57
R v Delzotto [2022] NSWCCA 117
R v McNaughton (2006) 66 NSWLR 566
[2020] ACTCA 47
Totaan v R [2022] NSWCCA 75
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14
Wong v The Queen
Leung v The Queen (2001) 207CLR 584
Judgment (10 paragraphs)
[1]
Background
The respondent was born in June 1987. He has a history of sexual offences against children. In 2005, shortly before his 18th birthday, he committed an offence of indecent assault on a person under the age of 10 years. In 2013 he was convicted of a series of offences committed over a six day period in January of that year, those being 7 counts of filming, for the purposes of sexual arousal or gratification, a person engaged in a private act without consent (offences against s 91K(1) of the Crimes Act 1900 (NSW) ("Crimes Act (NSW)")); one count of an aggravated offence of the same kind, the circumstance of aggravation being that the person filmed was a child (an offence against s 91K(3) of the Crimes Act (NSW)), and 3 counts of producing, disseminating or possessing child abuse material (offences against s 91H of the Crimes Act (NSW)). Each s 91K offence involved the respondent using a mobile telephone to create a video recording of a person (in the case of the s 61K(3) offence, a child) using a public toilet. No detail is provided of the s 91H offences, but it might be speculated that they relate to the respondent's possession of the material produced as a result of the s 91K offences. For these offences the respondent was sentenced to an overall term of imprisonment of 15 months to be served by way of Intensive Correction Order pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Pursuant to s 14A(1)(b) of the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR Act") the respondent's name was entered on the Child Protection Register and he was required to report, in compliance with the provisions of that Act, for a period of 15 years.
In September 2018 the respondent was convicted of a further series of four offences, committed over a period in October/November 2015, which included failing to comply with reporting obligations under the CPOR Act, committing an act of indecency with a person under the age of 10 years, committing an act of indecency with a person over the age of 16 years, and, as a convicted child sexual offender, loitering in a public place. Little detail of the nature of these offences has been provided, but it does appear from the sentencing remarks of the magistrate (which were provided) that two of the offences were of a kind similar to those committed in 2013. For each of these offences he was subjected to a bond under s 9 of the Sentencing Procedure Act, conditioned to be of good behaviour for 3 years and to take prescribed medication in accordance with medical advice.
In December 2019 the respondent was convicted of an offence of failing to comply with reporting conditions under the CPOR Act, as a result of which, pursuant to s 14A(1)(c) thereof, he was required to comply with reporting conditions for life.
Section 16AAB of the Crimes Act (Cth) relevantly provides as follows:
"(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."
(A "child sexual abuse offence" (subs(1)(b)), as defined in s 3, includes "a State or territory registrable child sex offence", which, in turn, is defined as an offence by which "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 or Territory for committing; and in respect of which: a child was a victim or an intended victim; or the offending involved child abuse material." A "Commonwealth child sexual abuse offence" (subs(1)(a)) is defined to include an offence against subdivisions D and F of Division 474, thus including an offence against s 474.26(1) of the Code).
There follows in s 16AAB a table in which in column 1, 35 offences against the Code are itemised, and in column 2, the minimum term of imprisonment prescribed for those offences. Item 26 nominates in column 2 a minimum term of imprisonment of 4 years with respect to an offence against subs 474.26(1) of the Code.
A number of the offences of which the respondent had previously been convicted were offences by reason of which he became a person whose name was, or may have been, (and in fact was) entered on "a child protection offender register" and were thus "State or Territory registrable offences" as defined in s 3 of the Crimes Act (Cth).
As indicated above (see at [1]), the effect of the mandatory term of imprisonment specified in s 16AAB (2) may, by s 16AAC(2) and (3), be modified, if the court considers it appropriate to do so, by reason of a plea of guilty or cooperation with law enforcement agencies in the investigation of the offence in question or of another Commonwealth child sex offence. In either case the modification may be a reduction of up to 25% of the mandatory minimum term.
[2]
The present offence
The offence the subject of the present appeal (for the purposes of s 16AAB, "the current offence") was committed between 25 May 2021 and 18 June 2021 (when the respondent was arrested). At that time the respondent was subject to the four bonds imposed in September 2018. The following account of the circumstances of the offending is (as is the above account of the respondent's criminal history) drawn from an Agreed Statement of Facts.
The respondent was a participant on two social media platforms under his own name. NSW police developed concerns (the detail of which was not made known to this Court) about his activities. As a result of those concerns, on 25 May 2021, a police officer commenced "pro-active engagement" with the respondent, assuming the on-line identity of a 13 year old male child. There followed a series of communications between the police officer and the respondent. It will be necessary in due course to consider in more detail the exchanges between the police officer and the respondent. At this point it is fair to describe the respondent, during the early part of these exchanges, as cautious and relatively non-committal, and his contributions as relatively innocuous. The transcript of the exchanges shows a gradual escalation in suggestions of sexual activity, to which the respondent eventually responded in a positive fashion. (There was a dispute between the parties as to which of the respondent and the police officer introduced the notion of sexual activity, and the extent to which either could be said to have taken the lead). On 7 June 2021 the respondent and the police officer exchanged photographs, purportedly of themselves. The photograph sent by the respondent was a genuine photograph of himself; that sent by the police officer was, of course, a fabrication. The police officer and the respondent arranged to meet on 18 June 2021 at what purported to be the home of the purported 13 year old male. The respondent attended the address given to him, where the police officer revealed her true identity, told the respondent that he was under arrest, and cautioned him. The respondent replied:
"Oh no, I fucked up. I am sorry."
At the time the respondent had in his possession a lubricant and a mobile phone which contained at least one of the messages he had sent the police officer.
[3]
Proceedings on sentence
The matter came before the Local Court in October 2021, when the respondent entered a plea of guilty and was committed to the District Court for sentence. It first came before the sentencing judge on 8 March 2022. Before the court was the Agreed Statement of Facts referred to above, which set out, in some detail, the social media exchanges between the police officer and the respondent, details of the respondent's previous offences, and a Sentencing Assessment Report. Among other things, the respondent told the Community Corrections Officer who prepared the Sentencing Assessment Report "that 'mentoring' a younger male made him feel good about something and that this feeling led to his offence". Psychiatric and psychological reports that had been prepared in relation to the respondent's previous offending were provided, as were a February 2022 psychiatric report of Dr Richard Furst, and an August 2022 report of Dr Andrew Ellis, also a forensic psychiatrist. Also in evidence was a "Pre-Sentence Structured Case Note", which included some analysis of the respondent's previous offending and an attempt at risk assessment. The risk assessment was expressly not presented as comprehensive because it was based on "file review" and no face to face interview had been conducted. With that limitation the respondent was assessed as representing a "Well Above Average" risk of re-offending.
As no oral evidence was given, what is known of the respondent's personal circumstances is drawn from the histories taken from the various professionals who have assessed him from time to time.
The respondent was born in England in 1987 and migrated with his family to Australia at the age of 14. He was diagnosed with Attention Deficit Hyperactivity Disorder as a child. Schooling in England was not happy; he found it difficult to make friends, difficult to focus on school work, and was easily distracted. He has a long standing history of depression. He appears to have recognised, at an early age, a homosexual orientation.
In 2018, a forensic psychiatrist, Dr Jeremy O'Dea, diagnosed the respondent with homosexual paedophilia, voyeuristic disorder and hypersexuality . In his report Dr Furst (February 2022) assessed the respondent as presenting with "features of hypersexuality, sexual preoccupation, and the use of sex as a means of relieving emotional tension/stress". Dr Furst agreed with the earlier assessment of the respondent's risk of re-offending as being "well above average".
[4]
The remarks on sentence
On 27 June 2022 the sentencing judge imposed the sentence outlined above - imprisonment for 3 years, with a recognizance release order to take effect on 17 December 2022. As noted, that sentence is below the mandatory minimum term prescribed by s 16AAB, and was attributable to the respondent's prompt plea of guilty, as provided by s 16AAC (2)(a) and (3)(a).
His Honour recounted, uncontroversially and in detail, the circumstances of the offending, with specific reference to some of the social media exchanges between the respondent and the police officer. While acknowledging that the police officer:
"… could be argued to have made a conscious contribution to drawing the offender out",
his Honour expressly declined to find that the "drawing out" constituted "goading" or "entrapment".
The sentencing judge then recounted, again in detail, the respondent's criminal history and the psychiatric and psychological material with which he had been presented. He noted the respondent's current relationship. He carefully balanced the objectively serious circumstances of the offending against those aspects of the respondent's case that were favourable to him. For example, with respect to objective seriousness, his Honour said:
"I am satisfied beyond reasonable doubt that the offender's interactions quite soon, if not immediately in the interactions, amounted to grooming and that there was a clear sexual motive present, albeit that I do not dismiss that there was an accompanying interest in human contact. That however was tainted by the nature of the contact and the offender's belief as to the nature of the person with whom the contact was made. Very soon however in the interchanges, at least by the time of the discussions of 3 June 2021, sexual fantasising, masturbation and the possibility of meeting were part of the presentation."
His Honour again rejected the notion of entrapment as "in any way reducing the offender's moral culpability". He acknowledged that the police officer:
"tested the offender as to what the offender's real intentions were initially in questions as to the extent of his affection, but no doubt knowing what would emerge from the offender's responses."
He said:
"That aspect does not reduce the criminality, but in the whole of the circumstances indicates the offender's challenge in his condition, alongside an inherent error made by him in knowingly making bad choices and having made those choices building upon them."
[5]
The Crown appeal
Four grounds of appeal were pleaded. They are in the following terms:
"1. The sentencing judge erred 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 R v Delzotto [2022] NSWCCA 117.
2. The sentencing judge erred by imposing a sentence that was only available for the least serious category of offending when his Honour did not find the offending was in the least serious category, which finding was not open on the facts found by his Honour.
3. The sentencing judge erred by failing to take into account a material consideration, namely, the fact that the offence was committed while the [respondent] was on the conditional liberty of four good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including one for an offence of indecently assaulting a person under 10 years.
4. The sentence imposed was manifestly inadequate."
Grounds 1 and 2 raise essentially the same argument. Each depends on analysis of the decision of this Court in Delzotto to which reference has been made above. It is necessary to go into a little background, which will involve some repetition.
[6]
Sentencing for federal offences
As a general proposition, sentencing for federal offences is governed by Pt 1B (ss 16-22A) of the Crimes Act (Cth). Section 16A(1) provides:
(1) In determining the sentence to be passed, or the order to be made in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Subsection (2) lists, non-exhaustively, matters that, in sentencing, the court must take into account. These are largely matters that, conventionally and in accordance with established principle, a court would be required to take into account: for example:
(a) the nature and circumstances of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) the degree to which the person has shown contrition for the offence; and
(k) the need to ensure adequate punishment.
Subsection (2) of s 16A commences with the express statement that the list of matters is "in addition to any other matters", thereby incorporating any matters that, on common law principles, might be taken into account but are not included in the catalogue: Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15 at [15] per Gleeson CJ ("Johnson").
Section 17A(1) provides:
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
Subsection (2) of s 17A requires a court passing sentence of imprisonment for a federal offence to state the reasons for its decision that no other sentence is appropriate and to cause those reasons to be entered in the records of the court. Subsection (4) provides that s 17A applies subject to any contrary intention in the law creating the offence.
Sections 16AAB and 16AAC were introduced into the Crimes Act by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (see Delzotto at [12] per Adamson J) with effect from 23 June 2020.
Sections 16AAB and 16AAC are not unique instances of Commonwealth legislation mandating minimum terms for certain offences. In 2013 the Commonwealth successfully (by a majority of 6:1, Gageler J dissenting) fended off a challenge to the constitutional validity of mandatory minimum sentencing under the Migration Act 1958 (Cth) ("Migration Act"): Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 ("Magaming").
[7]
Grounds 1 and 2: the proper construction and application of s 16AAB
Put another way, the question posed for determination by grounds 1 and 2 of the present appeal is whether, by prescribing a mandatory minimum penalty for an offence against s 474.26(1) (or any other federal offence itemised in Column 1 of the Table to s 16AAB of the Crimes Act (Cth)), the legislature precluded - as a matter of law - the imposition of a sentence equivalent to the mandatory minimum term in any case other than one that can properly be classified as "within the least serious category of offending [against the relevant provision]". The contention of the appellant is that that is precisely what the legislature has done: that is, the appellant contends that, unless the offending in respect of which an offender is to be sentenced is expressly found to be "within the least serious category of [relevant] offending", a sentence exceeding the mandatory minimum term must, as a matter of law, be imposed.
I have emphasised "as a matter of law". Therein, in my opinion, lies the flaw in the appellant's reasoning.
It may first be observed that no such prescription is to be found in the text of any of the relevant provisions. The source of the appellant's contention is to be found in [55] of Bahar, which I have not previously extracted. In [55] McLure P said:
"The suggestion by the Crown to the sentencing judge that the mandatory minimum is for a low level offence in which all mitigating factors are present reflects a lack of understanding of the sentencing process. First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise 'category' of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. As I have explained above, a sentencing outcome (the 'bottom line') is not dictated by the presence or absence of one or more mitigating factors."
In my opinion, for reasons that follow, [55] of Bahar does not support the appellant's contention.
That sentencing is a complex and difficult task demanding the balancing of many varied considerations, sometimes competing and even at times contradictory has long been recognised by the High Court: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at, for example, [77] per Gaudron, Gummow and Hayne JJ. It is a discretionary judgment and there is no single correct sentence for an offender and an offence (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46] per McHugh, Hayne and Callinan JJ; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). Parameters are set by, first, any legislative requirements, and second, by principles developed over years by the common law: see Magaming at [47]. It is hardly necessary to say that any legislative requirements that are inconsistent with a common law principle, no matter how entrenched that common law principle may be, prevails. Subject to that, sentencing judges are bound to sentence in accordance with both statute law and established common law principles. In Wong, Gaudron, Gummow and Hayne JJ said at [77]:
"The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment."
[8]
Ground 3: failure to take into account a "material consideration"
By ground 3 of the appeal the appellant complains that the sentencing judge failed to have regard to a "material consideration", that being that, at the time of the offence, the respondent was subject to four good behaviour bonds, imposed on 7 September 2018. No mention was made of that circumstance in the Remarks on Sentence, notwithstanding that it was brought to the attention of the sentencing judge in both written and oral submissions presented by the appellant.
In written submissions in this Court the appellant acknowledged that the commission of an offence while subject to conditional liberty is not a circumstance expressly included in s 16A of the Crimes Act (Cth) but contended (correctly) that it is nevertheless a relevant sentencing consideration. No contrary contention was advanced on behalf of the respondent.
The respondent's answer to ground 3 made three points. First, he pointed to the circumstances in which the bonds were imposed - that is, on 7 September 2018 in respect of offences committed in October and November of 2015. No explanation was given for the delay between offending and sentencing. The 2018 Remarks on Sentence indicate that the respondent entered pleas of not guilty to the charges and was found guilty after a contested hearing, which may account for at least some part of the delay. Although the materials before this court are not clear, it may be assumed that the bonds commenced on the day on which they were imposed. That gave rise to the second point made by the respondent - that the bonds were due to expire on 6 September 2021; the present offences were committed just three months before their expiry.
I am unable to accept that either of these circumstances is an answer to the apparent failure of the sentencing judge to take account of the respondent's status at the time of the commission of the offence. Commission of an offence while subject to conditional liberty is not only a relevant circumstance - it is a seriously aggravating factor and an important sentencing consideration.
The next point made by the respondent was that the sentencing judge was well aware of the respondent's status - it was brought to his attention in both written and oral submissions by the appellant's representative, and was apparent in his recounting of the respondent's criminal history and in the medical reports in relation to the prior offending, which were part of the sentencing materials.
[9]
Ground 4: manifest inadequacy
In order to establish a manifest inadequacy ground, the appellant needs to demonstrate that the sentence imposed was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 ("Dinsdale") at [6] per Gleeson CJ and Hayne J; Markarian at [25].
The degree of elaboration that is required of a criminal appellate court in dealing with a ground of manifest inadequacy will vary from case to case (Dinsdale at [6] per Gleeson CJ and Hayne J). In some cases (as in Dinsdale) the circumstances may be such as not to call for, or even admit of, expansive elaboration of the reasons for what is a conclusion.
In this case, the appellant's contentions as to why this Court should find the sentence to have been manifestly inadequate were succinct. They were:
"54 The sentence imposed on the Respondent failed to reflect the objective seriousness of the offence having regard to the nature and circumstances of the offender as found by his Honour. As a consequence, the sentence failed to sufficiently denounce the respondent's offending or provide sufficient retribution for the respondent's conduct.
55 The head sentence and non-parole period imposed in this case are outside the range of sentences appropriate for serious child sex offending of this nature, when regard is also had to sentencing patterns throughout Australia for comparable offending."
No comparable sentencing decisions were provided to establish a pattern of sentencing or a range that might provide guidance, in accordance with the principles stated in Hili. No doubt that may be explained by the relative recency of the introduction of ss 16AAB and 16AAC of the Crimes Act (Cth).
I have concluded that, once the appellant's principal propositions (advanced under Grounds 1 and 2) are disposed of, there is little, if anything, to support the contention of manifest inadequacy. True it is that, as has been acknowledged in respect of Ground 3, the offence was committed while the respondent was on conditional liberty, and that is, as I have said above, a seriously aggravating feature of the offending.
In oral argument, counsel for the appellant sought to show that, in the exchanges with the police officer, it can be seen that it was the respondent who escalated the sexual connotations. For example, at an early exchange when the police officer said that "he" was "too skinny" the respondent replied "skinny is sexy". More importantly perhaps, he asked whether the teenage boy to whom he believed he was speaking was "gay, straight or bi". While I accept that the respondent did introduce sexual references, he also explicitly disclaimed sexual intent. On other occasions it was the police officer who, subtly, steered the exchanges towards sexuality - for example:
"I've never done any of that stuff before.
… I am just nervous. Where would we start?
…I d k [I don't know] u [you] just said take me to bed
… Soz [sorry] I think I got it confused."
[10]
Amendments
06 December 2022 - Numbering correction in headnote.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 December 2022
Parties
Applicant/Plaintiff:
Rex
Respondent/Defendant:
Taylor
Legislation Cited (7)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020(Cth)
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent pleaded guilty to a single charge of using a carriage service to procure a person under the age of 16 for sexual activity. The offence was contrary to s 474.26(1) of the Criminal Code (Cth) (the Code) and carried a maximum penalty of imprisonment for 15 years. Section 16AAB of the Crimes Act 1914 (Cth) (the Act), subject to s 16AAC thereof, prescribes a mandatory minimum sentence of imprisonment where a person is convicted of a Commonwealth child sexual abuse offence (which includes, inter alia, an offence against s 474.26(1) of the Code), and the person has been convicted previously of a child sexual abuse offence. The respondent had a number of prior child sexual abuse offence convictions (defined by s 3 of the Act, and including, relevantly, a "State or Territory registrable child sex offence"). Section 16AAB accordingly prescribed a mandatory minimum sentence of 4 years' imprisonment for the offence. The offence was committed whilst the respondent was on conditional liberty.
On 27 June 2022, the respondent was sentenced to imprisonment for 3 years with a recognizance release order to take effect after he had served 18 months of the sentence. The sentence was below the mandatory minimum and was attributable to the respondent's prompt plea of guilty, as provided by s 16AAC subss (2)(a) and (3)(a).
The Director of Public Prosecutions (Cth) appealed against the asserted manifest inadequacy of the sentence imposed on the respondent pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). Four grounds of appeal were pleaded:
i. The sentencing judge erred 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 R v Delzotto [2022] NSWCCA 117;
ii. The sentencing judge erred by imposing a sentence that was only available for the least serious category of offending when his Honour did not find the offending was in the least serious category, which finding was not open on the facts found by his Honour;
iii. The sentencing judge erred by failing to take into account a material consideration, namely, the fact that the offence was committed while the respondent was on conditional liberty of four good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including one for an offence of indecently assaulting a person under 10 years; and
iv. The sentence imposed was manifestly inadequate
Held (dismissing the appeal) (per Simpson AJA, Davies J concurring with additional remarks, Wilson J agreeing in part but dissenting in the result)
(1) There is no legislative prescription that the mandatory minimum penalty can only be imposed where the offence in respect of which the sentence is to be passed is (expressly) characterised as "within the least serious category of offending" (quoting Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249 at [58] ('Bahar')). Nothing in the decision of R v Delzotto [2022] NSWCCA 117 adopts the proposition that unless a particular offence is (expressly) found to be within the least serious category of offending that a sentence in excess of the mandatory minimum must - as a matter of law - be imposed (subject to any reduction pursuant s 16AAC, Crimes Act 1914 (Cth)). ([54]-[56]; [67]-[70]; [72]; [78]). (Simpson AJA).
R v Delzotto [2022] NSWCCA 117; Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249, cited. Parente v R [2017] NSWCCA 284; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 considered.
(2) Parameters of sentencing are set, first by any legislative requirements, and secondly, by principles developed over the years by the common law. One common law principle to be applied is that the sentence imposed must properly reflect both the personal circumstances of the particular offender and the particular conduct with which the offender engaged when those circumstances and conduct are compared with other offenders and offending. ([57]-[60]). (Simpson AJA)
Karim v R; Magaming v R; Bin Lahaiya; Alomalu v R [2013] NSWCCA 23; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64; Pearce v The Queen (1998) 194 CLR 610; [1994] HCA 57 at [46]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, cited.
(3) Where a minimum sentence has been legislatively prescribed, it must (like a maximum) operate as a yardstick. The prescription of a mandatory minimum term imports an additional constraint into the evaluation of proportionality, but it does not eliminate proportionality as an important sentencing consideration. The prescribed sentence does more than fix a boundary above or below which the sentence imposed may not go. ([61]-[63]; [66]; [71]). (Simpson AJA)
Karim v R; Magaming v R; Bin Lahaiya; Alomalu v R [2013] NSWCCA 23; Ibbs v The Queen (1967) 163 CLR 447; [1967] HC 46; Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
(4) Commission of an offence whilst subject to conditional liberty is a seriously aggravating factor and an important sentencing consideration. It is too important a consideration to be taken into account subliminally, it is the more so where the previous offending was of the same kind as that for which the offender is to be sentenced. ([86]-[89]; [96]) (per Simpson AJA); ([105]) (Davies J); ([109]) (Wilson J).
(5) Where an offender, in application for leave to appeal against the severity of a sentence, establishes specific error in the sentencing process, the Court is called upon to re-exercise the sentencing discretion. In the context of a Crown appeal, specific error may demonstrate why a manifestly inadequate sentence was imposed, but it does not, of itself, establish manifest inadequacy; nor does it, of itself, justify the intervention of the Court to increase the sentence imposed. The view taken by N Adams J in R v Manojlovic [2020] NSWCCA 315 that it was doubtful that this Court would intervene to increase a sentence on a Crown appeal before first being satisfied the sentence was manifestly excessive is to be preferred. ([91]) (Simpson AJA); ([106]) (Davies J expressing no opinion); ([111]-[114]) (Wilson J contra).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited. Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54; R v Ralston [2020] ACTCA 47; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315, considered.
(6) The sentence was not manifestly inadequate. That there was error in the primary judge overlooking the respondent's status as being subject to conditional liberty, is not sufficient to establish manifest inadequacy. ([92]-[99]) (Simpson AJA); ([104]) (Davies J); ([116]-[118]) (Wilson J contra).
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9; R v Ralston (2020) 285 A Crim R 159; [2020] ACTCA 47; Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited.
The respondent's criminal history relates exclusively to sexual offences, predominantly against child victims. Until Covid restrictions intervened to cause its cancellation, he was participating in a High Intensive Sex Offenders' Treatment Program. He expressed to the author of the Sentencing Assessment Report his willingness to resume participation in such a program.
Dr O'Dea as a treating psychiatrist prescribed, and the respondent used, a testosterone lowering anti-libidinal medication, but due to side effects of that medication, in about 2021 a different, and less effective, medication was substituted. The respondent is now in what appears to be a stable homosexual relationship, with the support of his parents.
The respondent is qualified as a butcher and had employment until "an angry outburst" at his place of work, as a result of which his employment was terminated. This was distressing for him, but he found substitute employment which came to an end on his arrest.
Tendered to the sentencing judge were a letter dated 2 March 2022 from the respondent's parents, and a second letter, dated 14 June 2022 jointly signed by the respondent's parents and his current partner. The authors acknowledged the respondent's wrongdoing, said that he is remorseful, and expressed concern about the impact Covid lockdowns have had on their access to the respondent. They offered continuing support on his release from prison.
An agreed summary of the effects of Covid lockdown that affected the respondent was put before the sentencing judge. The report of Dr Ellis was specifically directed to the effect of lockdowns on the mental stability of prisoners in general. Dr Ellis considered that changed procedures, reduced services and quarantine without infection gave rise to the risk of the development of post-traumatic stress disorder or depression over and above the usual risks of development of those conditions on incarcerated prisoners; in the case of prisoners already suffering mental health disorders, the restrictions had the effect of reducing access to treatment, exacerbating existing conditions, the ultimate risk being of engagement in self-harm or suicidal behaviour.
Prior to the sentencing proceedings on 8 March, an issue concerning the construction and application of s 16AAB of the Crimes Act (Cth) had arisen, which will be discussed below. As a result, the sentencing proceeding was deferred to 23 June 2022, pending delivery of what was expected to be (and was) resolution of the construction issue (see R v Delzotto [2022] NSWCCA 117 ("Delzotto")).
His Honour went on to say:
"The offender has a criminal history with an accompanying and emerging condition of long standing, which is identified, diagnosed and has been treated. He was aware of his vulnerability in that regard and yet embarked upon the interchanges with a supposed 13 year old boy. His characterisation of his role when speaking to [the police officer] as a 'mentor' very quickly fell away in the inappropriate sexual nature of the interchanges. The offender alone was responsible for the choices that lead [as recorded] to that. The continuation of the contacts was reprehensible. … The criminal intent, culminating in actions to advance an equally criminal purpose of meeting a child is plain. The offender's plea of guilty admits what his intention was. That is fortified further by the powerful circumstance of having come to the meeting equipped with a tube of lubricant."
A little later, his Honour said:
"However, what cannot be avoided is the conclusion that the offender gave way to his driving paedophilic tendency. His other lifelong psychological challenges made that resistance more difficult. It did not mean however that he was relieved of any moral culpability. I also remain concerned that the offender still appears somewhat compromised in recognising the real wrongfulness in his actions; most particularly as to the notion raised in the Sentencing Assessment Report, implying that he had considered himself to be mentoring the child, and in the interchanges with [the police officer] that appear to misconceive the notion that a child can consent to entering into relationships of such an improper kind."
With respect to the applicant's personal circumstances the sentencing judge said:
"The offender's conduct and his subjective circumstances are both complex. I have found it more probable than not that his relapse into offending behaviour was impacted by aspects of innate loneliness and social isolation, and by his ADD condition, with a tendency to impulsive behaviour. The offending was also, no doubt, driven by a paedophilic disorder and it occurred at a time corresponding to the continuation of the pandemic and what I found more probably [as recorded] than not was the impact upon the availability of resources and supports that might otherwise have reduced the likelihood of reoffending. One aspect of that is apparent in that the sex offenders' program in which the offender had engaged voluntarily, much as he had voluntarily engaged with therapeutic support, had been suspended or cancelled."
Following the recent decision of this Court in Totaan v R [2022] NSWCCA 75, his Honour took into account, in a limited way, the adverse effect the sentence will have upon the respondent's parents and partner.
His Honour then concluded:
"Taking all of those circumstances into account I conclude that the sentence, as compelled by application of the statutory 'floor' indicated and predicated on the statutory minimum of four years should be applied. That period will be reduced by a factor of 25% for the utility in the guilty plea."
His Honour imposed a sentence of imprisonment for 3 years, and ordered that the respondent be released to recognizance on 17 December 2022.
Since 2010, the Migration Act has contained provisions creating offences known as "people smuggling" (relevantly ss 233A-233C) and, where the offence in question involves the importation into Australia of five or more people, prescribes a minimum term of imprisonment of 8 years (for a "repeat offence"), a minimum term of 5 years (in any other case), a minimum non-parole period of 5 years (for a repeat offence) and a minimum non-parole period of 3 years (in any other case). With respect to offences committed prior to 1 June 2010 the relevant sentencing provision was s 233C. Thereafter the relevant provision was s 236B. The legislation was substantially amended and reworked with effect from 1 June 2010, but not in any way that affects the construction issue relevant to the present case. I mention this only because recourse to the judgments in the cases to which I am about to refer may cause some confusion if it is not understood that the relevant provisions, although relevantly the same in substance, are numbered differently. For those who may be interested, the history of the provisions is set out in some detail in the judgment of Allsop P (as his Honour then was) in Karim v R; Magaming v R; Bin Lahaiya; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; [2013] NSWCCA 23 ("Karim") at [4]-[22].
Prior to the decision in Magaming a divergence of opinion had emerged, in intermediate appellate courts, concerning the correct approach to the imposition of sentence in cases where the mandatory minimum sentence provisions of the Migration Act applied. In R v Pot, Wetangky and Lande (unreported, Supreme Court of the Northern Territory, Riley CJ, 18 January 2011), Riley CJ took the view that a sentencing judge in such a case should begin by identifying what he or she considered to be the appropriate sentence on the application of established sentencing principles, including both statutory provisions such as s 16A of the Crimes Act (Cth), and common law principles. If that exercise produced a putative sentence less than the mandatory minimum, the sentencing judge would be obliged to increase the sentence and impose the mandatory minimum sentence. At pg 4, Riley CJ rejected the proposition that the provisions required the court:
"… to determine the appropriate severity of a sentence by reference to a pre-determined base not necessarily reflecting the circumstances of the offending and which may be removed from what the Court would otherwise consider an appropriate sentence in all the circumstances."
The "predetermined base" was the mandatory minimum term.
Later in the same year, in Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249 ("Bahar"), the Western Australian Court of Appeal took a different approach, and rejected that taken by Riley CJ. McLure P, with whom Martin CJ and Mazza J agreed, concluded at [53]-[54], [58]:
"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 5 years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail.
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.
…
58. Where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate."
Which of the two approaches should be adopted came before this Court in 2022 in Delzotto, with respect to sentencing for an offence against s 474.22A(1) of the Code (and an offence against s 474.22(1)). The offence against s 474.22A(1) was, by s 16AAB, subject to the same mandatory minimum term as the offence the subject of the present appeal; the reductions permitted by s 16AAC were also applicable, if the relevant circumstances existed.
All members of the Court agreed that the correct approach was that taken by the Western Australian Court of Appeal in Bahar, as stated by McLure P. A similar preference had already been expressed by Allsop P (with whom Bathurst CJ, McClellan CJ at CL, Hall and Bellew JJ agreed) in Karim.
It was not, in this case, suggested that this Court, as presently constituted, should do other than adopt and follow the approach taken in Delzotto. It may be taken, therefore, that Bahar states the law to be applied in this case.
In Delzotto Adamson J said at [24]:
"…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 predetermined base line for cases which involve the least serious offending."
In that case, the Crown appealed against the sentence imposed on three grounds, the first of which was, at [8] per Adamson J:
"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 … and Karim … ."
The second ground (ultimately abandoned) was:
"The sentencing judge erred in reducing the sentence imposed on Sequence 5 pursuant to s 16AAC(2) and s 16AAC(3) of the Crimes Act 1914 (Cth) to reflect the Respondent's plea of guilty and cooperation."
The third ground was that the sentences imposed were manifestly inadequate in a number of particularised respects.
Grounds 1 and 3 were upheld. Given the appellant's abandonment of ground 2 Adamson J (with whom R A Hulme J agreed) found it unnecessary to address that ground (see at [95]). I will come to its consideration by Beech-Jones CJ at CL shortly.
It appears that the formulation of ground 2 may not have precisely reflected the intent of the appellant. Adamson J paraphrased the appellant's contention at [95] as:
"…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."
Beech-Jones CJ at CL interpreted ground 2 at [3] as follows:
"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 on the range."
Ground 1 in Delzotto was relevantly identical to ground 1 in the present case. Accordingly, the appellant relied heavily on the upholding of ground 1 in that case as endorsement of its contention in the present case. That contention may be stated simply. It is that, unless the offence in respect of which sentence is to be passed can properly be characterised as "within the least serious category of offending", then the mandatory minimum sentence is unavailable and a more severe sentence must, as a matter of law, be imposed.
In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") Gleeson CJ, Gummow, Hayne and Callinan JJ said (at [27]):
"Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." (citing Johnson; other internal citations omitted)
One common law principle to be applied is that the sentence imposed must be proportionate, that is, properly reflecting both "personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and the conduct are compared with other offenders and offending": Magaming at [51]. The concept of proportionality has also been emphasised in Veen v The Queen (No 2) ((1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)") at 486 (per Wilson J) and at 490, 492-493 (per Deane J); Markarian at [69] (per McHugh J); Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [18], [60] ("Muldrock").
One yardstick against which proportionality must be measured is prescribed maximum penalty. The maximum penalty prescribed for an offence signifies to sentencing judges (and to the community and to offenders) the seriousness with which the legislature regards offences of the kind in question: Muldrock, at [31].
The prescription by a legislature of a mandatory minimum sentence for an offence is a relatively rare phenomenon. Where a minimum sentence has been legislatively prescribed, it must, like a maximum, operate as a yardstick. It also signifies the seriousness with which the legislature regards offences of the kind in question. One consequence is that the common law principle of proportionality may have to yield - at least to some extent. So much is apparent from the facts in Magaming, where the very experienced sentencing judge (the Chief Judge of the District Court) considered that the seriousness of Mr Magaming's part in the offence "fell right at the bottom end of the scale" and would not, on ordinary sentencing principles, have called for a sentence at the level of the mandatory minimum term (see at [7]). It is evident that his Honour considered that the minimum term he was required to impose was disproportionate to the circumstances of the offending. A minimum term, where one is prescribed, must be factored into the proportionality assessment.
The prescribed maximum sentence has always been a factor in the proportionality assessment. But it has never been the only factor, nor even the predominant factor. It constitutes one end of a spectrum (Ibbs v The Queen (1987) 163 CLR 447 at 452; [1987] HCA 46) into which the sentence must be fitted. In the most common case, where no mandatory minimum term is prescribed, the lower end of the spectrum is, in theory, no sentence at all; in reality, the lower end of the spectrum is established by sentencing patterns in comparable cases. The difference is that the prescribed maximum sentence is rigid; unless a mandatory minimum term is prescribed the lower end of the spectrum lacks that rigidity and is adaptable to the circumstances of the case. A prescribed minimum term imports rigidity at the lower, as well as the upper, and of the sentencing spectrum. Prescription of a mandatory minimum term imports an additional constraint into the evaluation of proportionality. But it does not eliminate proportionality as an important sentencing consideration. Nor does it impinge on the general principle, emanating from Johnson at [26] per Gummow, Callinan and Heydon JJ and cited in Markarian at [27], that:
"Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected."
It is clear that the specification of a mandatory minimum term can exclude or override some statutory provisions. As McLure P pointed out in Bahar at [53], the injunction (proscribing the imposition of a sentence of imprisonment for a federal offence unless the court is satisfied, having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case) in s 17A of the Crimes Act (Cth) cannot stand against a mandated minimum term of imprisonment. That is because, in those circumstances, a non-custodial term is not an "available" sentence.
Every sentencing exercise requires (at least):
assessment of the objective gravity of the offence;
consideration of matters personal to the offender, including, for example, matters such as mitigate the offender's moral culpability;
attention to the maximum penalty (which is, in the case of statutory offences, invariably prescribed);
in the (relatively rare) case where a minimum penalty is mandated, attention to that penalty.
Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian, said at [31]:
"It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
Of course, the same careful attention must be paid to any mandatory minimum term. Just as a sentence may not exceed the statutory maximum, neither may a sentence be lower than a statutory minimum. In each case the prescribed sentence does more than fix a boundary above or below which the sentence imposed may not go; it operates as a guide to the seriousness with which the legislature views offences of the kind in question and as a yardstick against which to measure a proposed sentence.
It does not follow, however, as the appellant suggests, that, unless an offence is found to satisfy the description "within the least serious category of offending", the minimum term can never be imposed. That will be a matter within the sentencing discretion of the sentencing judge to be determined on established principles.
The appellant's proposition is reminiscent of that which arose for consideration by a five judge bench of this Court in Parente v R [2017] NSWCCA 284 ("Parente"). There, a "principle" had been judicially developed that imposed a constraint on the discretion of a sentencing judge to impose (other than in exceptional circumstances), in respect of cases of "drug trafficking to a substantial degree", a sentence other than one of full-time imprisonment. This Court declared that the "principle" should no longer be applied in sentencing for drug supply cases (at [106]). The "principle" purported to go beyond what the legislature had ordained and imposed an additional constraint on the exercise of the sentencing discretion.
It may well be that, as a matter of judgment, it will be a rare case that a sentence at the level of the mandated minimum meets the requirements of sentencing unless the case is judged to be "within the least serious category of offending". In Parente, although it was held that adherence to the "principle" had infected the sentencing process, nevertheless the sentence imposed was upheld, because the circumstances of the offending warranted the imposition of a custodial penalty.
In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili") the High Court had under consideration a proposition that a "norm" existed in relation to the proportion a non-parole period bears to a head sentence in sentencing in respect of federal offences. The majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) disapproved the use of the term "norm", pointing out that it was ambiguous and failed to identify whether the "norm" was prescriptive (stating what ought to be) or descriptive (observing what has been done in past cases) (see at [37]). In sentencing, as Parente demonstrates (and as Hili at [36]-[38]) also demonstrates) a "norm" that is descriptive is a useful aid in sentencing, drawing on the experience of sentencing judges in appellate courts and a history of what has come to be acceptable sentencing practice. A "norm" that is prescriptive is not, having no "statutory root", and distracting attention from applicable statutory provisions see Hili at [36]-[38], quoted in Parente at [100] also demonstrates), a judicially created "principle" stated in descriptive terms is unobjectionable; judicially created "principle" stated in prescriptive terms will not be unobjectionable.
Where a minimum term is mandated by statute the sentence imposed must find its place somewhere between the mandatory minimum and the statutory maximum. As determined by Bahar at [54] per McLure P and Delzotto at [32] per Adamson J, the mandatory minimum is to be observed as part of the sentencing process, from the outset. It does not operate as a check after an assessment of a "just and appropriate sentence". Like a prescribed maximum sentence, a mandatory minimum sentence operates as a yardstick.
The approach taken by the appellant places undue emphasis on that part of the judgment in Bahar (see at [55]) in which McLure P said that "the minimum penalty is for offences within the least serious category of offending", and purports to draw from that the additional "principle" that the mandatory minimum penalty could be imposed only where the offence in respect of which sentence is to be passed has been characterised as an offence that satisfies that description. There is nothing in Delzotto that adopts such a proposition.
Nor do I understand McLure P to have intended to convey that additional proposition proposed by the appellant. First, the observation was made in the context of her Honour's rejection of a Crown submission that the mandatory minimum sentence "is for a low level of offence in which all mitigating factors are present". As can be seen from what follows, her Honour emphasised that the category of offending that could warrant the imposition of the minimum term takes into account both objective features and personal matters. No more than that can be read into [55]. Second, in this context, the concept of an offence "within the least serious category of offending" is elusive.
In AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 McHugh J and Hayne J each made salient observations about the discharge of the sentencing exercise. Before coming to those observations it is necessary to note that their Honours were in dissent as to the outcome of the appeal in that case. The issue for determination was whether the sentencing court had erroneously failed to give AB (who had been extradited from the United States of America) credit for having foregone an opportunity to raise as a mitigating factor the fact that he had voluntarily disclaimed reliance on a restriction on the prosecution of offences not within the extradition order and thereby exposed himself to sentencing in respect of offences which could not, having regard to the relevant extradition arrangements, have been charged. The majority held that error was established and remitted the matter to this Court for resentencing. General principles of sentencing did not, therefore, as Kirby J observed, arise for consideration. However, both McHugh and Hayne JJ paid attention to what has been called the "two-tiered approach to sentencing". McHugh J said at [14]-[15]:
"14. Many, probably the large bulk of, sentences, reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community's view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication. Another objective is to impose a sentence, with or without conditions, that will further the public interest by encouraging and not discouraging the convicted person to renounce criminal activity and to re-establish himself or herself as a law-abiding citizen. Still another objective is that the sentence should reflect an allowance for those circumstances, personal to the convicted person, which call for mitigation. These objectives and others have to be achieved within a conceptual framework that requires that there should be parity between sentences, that the sentence should be proportional to the circumstances of the crime and that, where more than one sentence is involved, the total sentence should not exceed what is appropriate for the overall criminality of the convicted person.
15. The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks … ."
His Honour cited the earlier decision of the High Court in Veen (No 2) where Mason CJ, Brennan, Dawson and Toohey JJ said at [13]:
"However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter."
Hayne J found flaws in the argument advanced on behalf of AB saying at [115]:
"First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant's remorse, the harm he has inflicted on his victims and society's denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence - in the end, all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as 'discount' or 'allowance' must not be taken as suggesting that it can."
These are observations of general application.
For my part, I reject the premise that underlies grounds 1 and 2 of the appeal. Bahar is not authority for the proposition that, unless a particular offence is (expressly) found to be within the least serious category of offending (against s 474.26(1) of the Code), a sentence in excess of the mandatory minimum term of 4 years must, as a matter of law, be imposed (subject to any reduction under s 16AAC of the Crimes Act (Cth)). That is not to say that, in a particular case, having regard to the circumstance of the offence and the personal circumstances of the offender, a sentence at the mandatory minimum will, unless the offence is found to come within the description "within the least serious category of offending" not be manifestly inadequate. That depends on the application of ordinary principles relevant to appellate intervention in sentencing. It does not emerge from the formulaic application of the language used by McLure P in [55] of Bahar which was never intended to convey what has now been read into it.
I also reject the proposition that the upholding of ground 1 in Delzotto signifies endorsement of the proposition now put to this Court. It is clear that the issue in Delzotto was whether the correct approach to sentencing in respect of offences carrying a mandatory minimum sentence is that proposed by Riley CJ in Pot, or that proposed by McLure P in Bahar. The judgment in Delzotto gives no indication that the further proposition, now advanced, that the mandatory minimum term may, as a matter of law, never be imposed unless the offence in respect of which the sentence is to be passed can be classified as "within the least serious category of offending" was proposed. True, the ground upheld was framed in terms relevantly identical to the ground in the present appeal. But the judgment cannot be seen to have endorsed the proposition which the appellant now advances. What is to be drawn from the judgment in Delzotto depends upon the content of the argument before the court.
The view I have expressed also gains some support from the brief observations of Beech-Jones CL at CL in Delzotto, in respect of the abandoned ground 2. Having set out his understanding of ground 2 as formulated, his Honour said at [4]:
"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 … 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])."
I therefore reject grounds 1 and 2 of the appeal.
That does not, however, have the necessary consequence that the sentence did not, when due regard is had to the facts of the case and the relevant yardsticks, represent an erroneous exercise of the sentencing discretion.
The respondent's final submission with respect to ground 3 was:
"The [appellant's] complaint in Ground Three reduces the sentencing exercise to a 'check list' of items rather than recognising the comprehensive and complete synthesis the sentencing judge undertook in relation to the Respondent."
I do not accept that submission. That an offence is committed while the offender is on conditional liberty is too important a sentencing consideration to be taken into account subliminally. It is the more so where the previous offending was of the same kind as that for which the offender is to be sentenced. I am satisfied that Ground 3 has been made out.
That raises a question as to consequences, in the context of a Crown appeal, of such an error. Where an offender, in an application for leave to appeal against the severity of a sentence, establishes specific error in the sentencing process, this Court is called upon the re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
In Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Basten JA (with whom Rothman and Cavanagh JJ agreed) suggested, at [33], that a similar position applies, where, on a Crown appeal, specific material error has been identified. A similar view was taken (by majority), in the Supreme Court of the Australian Capital Territory in R v Ralston (2020) 285 A Crim R 159; [2020] ACTCA 47 ("Ralston"). A contrary view was taken by N Adams J (with the concurrence of Hoeben CJ at CL and Button J) in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 ("Manojlovic") at [241]-[246]. Her Honour considered it "doubtful" that this Court would intervene to increase a sentence in a Crown appeal before first being satisfied that the sentence imposed was manifestly inadequate (at [243]). Although the point was not argued in this appeal - the focus being on grounds 1 and 2 - and my view cannot therefore be taken as the outcome of detailed argument, or concluded, I favour the view taken by N Adams J. Specific error may demonstrate why a manifestly inadequate sentence was imposed; it does not, of itself, establish manifest inadequacy; nor does it, of itself, justify the intervention of this Court to increase the sentence imposed.
While the respondent was plainly not (as the sentencing judge expressly found), induced to take part in the exchanges, neither was he, in my judgment, controlling the direction of the communications. There is no doubt, however, that the exchanges show that the respondent was willing to become a participant in a sexual encounter with a teenage boy.
I am not persuaded that the sentence was manifestly inadequate. That there was error in the primary judge overlooking the respondent's status as being subject to conditional liberty is not sufficient to establish manifest inadequacy.
In any event, even if error is established, the Court retains a discretion to decline to interfere. There are circumstances that persuade me that, in this case (if error were established) that discretion should be exercised in the respondent's favour. The respondent has now been in custody since 18 June 2021. Through no apparent fault of either party, he was not sentenced until 27 June 2022. Part of that delay was due to the uncertainty about the construction of the central sentencing provisions. The appellant did not file the appeal until 25 July one month after sentencing. In ordinary circumstances, that might not be seen as undue delay. However, in circumstances where the sentencing order entitles the respondent to release on 17 December 2022, the loss of a month is significant. The respondent will not know of the outcome of the appeal until less than a month before his release date (on present sentencing orders).
Moreover, the evidence shows that the respondent's incarceration has been (as is commonplace) affected by Covid 19 restrictions. An additional relevant consequence of Covid restrictions was the suspension of the intensive therapy program in which the respondent was participating. That may have had a bearing on his engagement in this offence.
I am not satisfied that the appellant has made out any of the grounds pleaded sufficiently to warrant the intervention of this Court.
I propose that the Crown appeal be dismissed.
DAVIES J: I have had the advantage of reading in draft the judgments of Simpson AJA and Wilson J. I agree with the reasons of Simpson AJA and the order her Honour proposes.
Both Simpson AJA and Wilson J agree, as do I, that ground 3 is made out. That raises the issue discussed by N Adams J in Manojlovic at [225]-[246], regarding whether the Crown must also demonstrate manifest inadequacy in a sentence in order for this Court to intervene if error is otherwise demonstrated. Justice Simpson, although accepting that the matter was not argued on the present appeal, indicated a preference for the view expressed by N Adams J, against the decision in R v Ralston, and contrary, perhaps, to what Basten JA (Rothman and Cavanagh JJ agreeing) said in Burton at [33]. Justice Wilson has expressed the contrary view, that it is not necessary that the Crown establish manifest inadequacy in addition to other error.
This issue will need to be determined in an appropriate case, given the apparent conflict in the authorities. However, as the matter was not argued on the present appeal, I would prefer not to express an opinion about it. It is sufficient to say that, for the reasons given by Simpson AJA, I do not consider that the sentence was manifestly inadequate, notwithstanding the error identified in ground 3.
WILSON J: What follows assumes familiarity with the detailed consideration given to these issues in the judgment of Simpson AJA.
With respect to grounds 1 and 2, I agree with the Presiding Judge that each should be dismissed. The principle expressed by her Honour at [67], with which I agree, is consistent with what was said in Delzotto, and with the conclusions expressed in Glasheen v R [2022] NSWCCA 191.
I also agree that error has been made out with respect to ground 3. The breach of four orders granting the respondent his liberty conditional on his good behaviour was a very serious matter that required specific consideration by the sentencing judge. Whether that was done is not a matter that should be left for others to guess at.
The consequences of the error are less clear. Her Honour has referred at [90] - [91] to an apparent divergence of approach where material error is made out in a Crown appeal, the question being whether this Court should, subject to the residual discretion not to intervene, re-sentence the respondent; or whether intervention should only be considered if manifest inadequacy is additionally established. The issue was considered by N Adams J in Manojlovic, at [225] - [246].
The question is governed by s 5D of the Criminal Appeal Act which provides:
5D Appeal by Crown against sentence
(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.
The Court's discretion to vary a sentence is broad, exercisable where the Court concludes intervention is required to impose a "proper" sentence. In CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 the High Court observed, at [33], that,
"Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 37). The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised."
The use of the word "or" in the fifth line of the second sentence of [33] as extracted above is significant. It is enough to enliven the discretion to re-sentence if specific error is established; it is not necessary that the Crown additionally establish manifest inadequacy.
The majority of the ACT Court of Appeal reached the same conclusion in R v Ralston at [84] that "…it is not appropriate to impose a judicially created additional requirement that the sentence be manifestly inadequate…" before an appellate court intervenes to resentence. That principle, although given in a different legislative context, is in my opinion applicable to appeals brought pursuant to s 5D of the Criminal Appeal Act. There is no basis for the imposition of an additional burden on the Crown to plead and establish manifest inadequacy in every appeal it brings, before an appellate court could intervene to vary the impugned sentence. To impose that extra requirement offends against ordinary notions of equal justice, as well as potentially undermining one of the purposes of a Crown appeal, being to permit the Court to ensure uniformity of sentencing: Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, at 306.
However, as a matter of practical reality, the question of the adequacy or otherwise of the sentence imposed at first instance will ordinarily be a powerful consideration in deciding whether the court should exercise its discretion to "vary the sentence and impose such sentence as to the said court may seem proper". That a sentence imposed at first instance, despite any error that occurred in its imposition, is within the available range, is a feature militating in favour of a decision to decline to intervene.
Ground 4 in this matter is a complaint of manifest inadequacy and the sentence imposed, in my opinion, meets that description.
The maximum penalty for this offence is 15 years imprisonment; the minimum term fixed by s 16AAB is one of 4 years imprisonment. These are the statutory guideposts to the determination of the appropriate sentence. The fact that the respondent was subject to conditional liberty for four sets of similar sexual offending against children points to a requirement for a significant component of specific deterrence, as does his criminal history, replete as it is with other sexual offences involving children. The facts of the crime, culminating as the events did with the respondent attending what he understood to be a meeting with a 13 year old boy with a tube of lubricant in his possession, point very clearly to what he intended to occur at that meeting. I do not regard anything said by the police officer who posed as the fictional 13 year old boy in the exchanges with the respondent previous to the arranged meeting as in any way diminishing his culpability for this crime. It is clear to me that, whilst the respondent was cautious in his interactions with the online persona, his intentions were sexually motivated.
An effective minimum term of 18 month imprisonment does not reflect the gravity of this crime, or adequately denounce it, or act as an effective deterrent to other like-minded individuals. It fails to deter the respondent.
As I am in the minority, I do not intend to state the sentence I would impose. Suffice to say, it would involve a lengthier term of imprisonment than that imposed at first instance.