Overview

On 13 March 2024, the High Court handed down its decision in the appeal of Hurt v The King [2024] HCA 8. The appeal related to how courts should approach the process of mandatory minimum sentencing under section 16AAB of the Commonwealth Crimes Act.

Background to appeal

When a person is being sentenced for a Commonwealth offence, the Crimes Act applies to the sentencing process. It sets out sentencing considerations and available sentencing options. Relevantly, section 16A provides that:

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC.

Section 16A(2) provides for a list of matters that the court must take into account if relevant and known to the court. Those matters include, by section 16A(2)(g), the fact of a plea of guilty, the timing of the plea and the degree to which that fact and the timing resulted in a benefit to the community, or any victim of, or witness to, the offence. They also include, by section 16A(2)(h), any co-operation with law enforcement agencies in the investigation of the offence or of other offences.

This typical regime for sentencing is modified by sections 16AAA and 16AAB, which provide for minimum sentences of imprisonment for certain offences. The appeals in this case related specifically to section 16AAB, which provides for minimum sentences for certain second or subsequent offences where the person has previously been convicted of a child sexual abuse offence.

CRIMES ACT 1914 – SECT 16AAB
Second or subsequent offence

(1) This section applies in respect of a person if:

(a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence); and

(b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.

(2) Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.

Each of the appellants had been convicted for a second time in relation to a child sexual abuse offence. This triggered the requirement that a mandatory minimum sentence be imposed on them. In their case, that was 4 years imprisonment.

Arguments on appeal

The appellants argued that, inter alia, the approach of using a mandatory minimum sentence as a yardstick meant that sentences would be artificially inflated to always be at least the mandatory minimum, which went against principles of legality and the availability of other sentencing options under the Crimes Act.

The High Court held:

1. The mandatory minimum sentence should act as a yardstick representing the least worst category of case for which a sentence of imprisonment is required, just like the maximum penalty reflects the worst category of case.
2. The fact that mandatory minimum sentences are prescribed does not prevent a court from making orders such as good behaviour bonds under sections 19B or 20(1)(a). That is because those orders allow for a court to pass sentence without conviction, or to release a person on conditions without passing sentence.
3. Similarly, a recognizance release order (akin to a suspended sentence in Queensland) under section 20(1)(b) can also be imposed, as that type of sentence is “concerned with the point of release, not with the sentence imposed”.
4. Further, if it is determined that a term of imprisonment is the only appropriate sentence to be imposed (by reference to the mandatory minimum as a yardstick), it may then be further reduced to take into account discounts for pleading guilty (25%) and cooperation with law enforcement (25%). Those discounts are calculated by reference to the mandatory minimum sentence — in this case, 25% of 4 years, or 1 year per discount.
5. The minimum sentence available in the relevant case, taking into account those possible discounts, was therefore 2 years imprisonment.

Summary

The ever-increasing penalties and consequences for child exploitation material and child abuse material offences seems to be a trend which shows no signs of slowing down.

Should you find yourself charged with a CEM or CAM offence, is vital you engage an experienced criminal lawyer to protect your rights.

For more information, check out our dedicated CEM page, articles, or contact us for advice.