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Hurt v The Queen [2022] ACTCA 49

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code, and 1 count of possessing child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Offender also sentenced for a Territory child exploitation offence. Original sentence for federal offences imposed 4 years and 8 months imprisonment. Offender appealed on the grounds that the sentencing judge incorrectly applied the mandatory minimum sentencing regime in the Crimes Act 1914 and that the original sentence was manifestly excessive. The Crown appealed on the grounds that the sentencing judge incorrectly applied application provisions in an Act amending the Crimes Act 1914 and that the original sentence was manifestly inadequate.

Minimum Sentences: Offender contends that Bahar should not be followed. While reasonable arguments can be put in favour of the Pot approach, the reasoning in Bahar cannot be said to be plainly wrong. Indeed, the approach in Bahar is the preferable one in relation to the provisions under consideration in that case. Because the maximum penalty forms a guidepost for the assessment of gravity, the minimum operates, by implication, as a guidepost. The argument that the Bahar approach ‘artificially distorts the sentences upwards’ is one of policy. To the extent that the principle of legality operates to point the court towards whatever construction involves the least infringement of liberty, it must be weighed against other indicators of legislative intention. One such indicator is that, as a consequence of the Pot approach, a person whose offending is at the very bottom of the range of seriousness will receive the same sentence as one whose offending is significantly more serious. This offends notions of equal justice and proportionality. There was no error in the primary judge’s conclusion that the Bahar approach was to be applied.

Manifest Excess: The sentencing judge’s error regarding the application provisions infected the whole exercise. It will be necessary for offender to be resentenced; but it makes it unnecessary to give detailed consideration to whether the original sentences were manifestly excessive. The sentencing judge’s analysis of the objective seriousness of the offending is correct. As is the sentencing judge’s analysis of offender’s subjective circumstances. Noting the minimum sentence of 4 years for the possession offence and the maximum of 15 years, and taking into account the volume and nature of the material in offender’s possession, there is a starting point of 6 years rather than 5. A discount of 25 per cent is applied. The 104 photographs involved in the access charge were a subset of the material involved in the possession count. The sentences for the possession and access counts are therefore almost wholly concurrent.

Appeal allowed. Offender resentenced to 4 years and 8 months imprisonment with a non-parole period of 2 years and 1 month.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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