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R v Hurt (No 2) [2021] ACTSC 241

The offender was sentenced following pleas of guilty to 1 count of transmission of child abuse material contrary to s 474.22(1)(a)(ii) of the Commonwealth Criminal Code, 1 count of access of child abuse material contrary to s 474.22(1)(a)(i) of the Commonwealth Criminal Code and 1 count of possession of child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code.  

Nature and Circumstances: Offences were committed during the operation of a good behaviour order for previous child exploitation offending. Number of images possessed is significant. Material overall discloses more than 100 separate children. All charges are within mid-range of objective seriousness.  

Minimum Sentences: Court not satisfied that the approach in Bahar is correct but is obliged to follow it. The words used by the legislature do not make it express that the maximum and minimum sentences reflect a range within which proportionate sentences must be set. The minimum may be a floor on the sentence to be imposed, but not a floor only applicable in a case warranting the most lenient sentence and requiring other sentences to fit proportionately. Notwithstanding the mandatory minimum sentence provisions, s 16A is not made expressly subject to the minimums in ss 16AAA and 16AAB. The unqualified obligation remains to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case. The approach adopted in Bahar is that it is inherent in the minimum penalty that it identifies the sentence to be imposed in the most lenient case, rather than an arbitrarily fixed minimum to be applied after the determination of what would otherwise be the most appropriate sentence. The discount provisions in s 16AAC(2)-(3) are effectively neutral. There is value in theoretical coherence of a sentencing regime. The language of the explanatory memorandum makes it clear that the intention was to increase sentences however it is not clear that this was to be done by a proportionate increase in all sentences as opposed to by eliminating the possibility of sentences below the threshold. The principle of legality tends in favour of the interpretation suggested by the offender. Increased penalties only apply to offence insofar as it involved the 25 additional photographs.  

Rehabilitation: Offender displayed lack of motivation or capacity to pursue rehabilitation once released, notwithstanding that they were subject to supervision. Offender returned to committing offences within a few months of being released from custody. The earlier sentence of imprisonment was not sufficient to deter further significant offending. Prospects of rehabilitation remain guarded.    

Offender sentenced to 4 years and 1 month imprisonment with a 2 year and 1 month non-parole period.
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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