The offender was sentenced following a plea of guilty to 1 count of using a carriage service to procure a person under the age of 16 years for sexual activity contrary to s 474.26(1) of the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment to be released after 18 months upon entering recognizance of $1,000 to be of good behaviour for 18 months. The crown appealed on the grounds that the original sentence did not reflect the principle that the mandatory minimum sentence was for the least serious category of offending, that the sentencing judge erred in failing to take into account the fact that the offender was on conditional liberty at the time of offending, and that the sentence was manifestly inadequate.
Minimum Sentences: The Crown contends that, unless offending in respect of which offender is 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. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Where a minimum sentence has been legislatively prescribed, it must, like a maximum, operate as a yardstick, but it does not eliminate proportionality as an important sentencing consideration. It does not follow that, unless an offence is found to satisfy the description ‘within the least serious category of offending’, the minimum term can never be imposed. 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’.
Nature and Circumstances: The Crown contends that the sentencing judge failed to have regard to a ‘material consideration’, being that at the time of the offence, offender was subject to 4 good behaviour bonds. That the bonds related to offending which occurred in 2015 and were due to expire soon before this offending are not answers to the apparent failure of the sentencing judge to take account of offender’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. Offender submitted that the sentencing judge was aware of offender’s status. That an offence is committed while offender is on conditional liberty is too important a sentencing consideration to be taken into account subliminally. Specific error does not of itself justify the intervention of the Court to increase the sentence imposed.
Manifest Inadequacy: The Crown submitted that the original sentence failed to reflect the objective seriousness of the offence and as a consequence failed to sufficiently denounce offending or provide sufficient retribution, and that the original head sentence and non-parole period are outside the range of sentences appropriate for child sex offending of this nature when regard is had to sentencing patterns throughout Australia for comparable offending. No comparable sentencing decisions were provided. That there was error in the sentencing judge overlooking offender’s status as being subject to conditional liberty is not sufficient to establish manifest inadequacy.
Appeal dismissed.
