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The High Court of Australia has ruled on how provisions related to mandatory minimum sentencing for Commonwealth child sexual abuse offences should be applied.

The Court ultimately determined that minimum sentences prescribed operate as yardsticks “for the appropriate term of imprisonment for the offence in the least serious circumstances.”

The reference to ‘yardsticks’ essentially means that the minimum sentences ought to be used as a standard for comparison, with the terms reflecting what would be appropriate for an offence in the least serious circumstances.

The judgement related to the matters of Mr Delzotto and Mr Hurt (Hurt v R; Delzotto v R [2024] HCA 8), with the Court unanimously dismissing both appeals and confirming that the approach taken by the Commonwealth Director of Public Prosecutions (‘CDPP’) was correct.

The opposing view, which was held to be incorrect, was that the sentencing judge is to apply all relevant sentencing principles, and if the sentence arrived fell below the minimum, the provisions would then be engaged by increasing the sentence to the minimum penalty.

What Happened in the Case

Mr Delzotto was sentenced for possessing child abuse material obtained or accessed using a carriage service and using a carriage service to access child abuse material.

He had a previous conviction for indecent treatment of children in Queensland, which meant that minimum sentencing provisions in section 16AAB of the Crimes Act 1914 (Cth) were applicable.

The District Court in New South Wales did not treat the minimum sentences specified in section 16AAB(2) as yardsticks appropriate in the least serious circumstances.

Delzotto was sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months.

Mr Hurt was sentenced for charges related to using a carriage service to transmit and access child abuse material, as well as possessing child abuse material obtained or accessed using a carriage service.

He had previous convictions for possessing child exploitation material and using a carriage service to distribute child pornography. The ACT Supreme Court held that section 16AAB(2) did not apply as his conduct took place prior to the commencement of the provisions.

Hurt was sentenced to 3 days less than 4 years and 10 months imprisonment, with a non-parole period of 2 years and one month.

The CDPP appealed both decisions in the NSW Court of Criminal Appeal and the ACT Court of Appeal and were successful in arguing that the yardstick approach was correct, as well as that the provisions ought to have applied to Hurt.

Mr Delzotto’s sentence was increased to 4 years and 6 months imprisonment, with a non-parole period of 3 years, whereas Mr Hurt’s sentence was increased to 4 years and 10 months imprisonment, with a non-parole period of 2 years and 2 months.

Mr Delzotto and Mr Hurt appealed these decisions to the High Court which granted them special leave to appeal on 21 April 2023.

The hearing took place on 9 November 2023, with the Court unanimously dismissing each appeal on 13 March 2024.

What are the Mandatory Minimum Sentences of Imprisonment?

The Crimes Act 1914 (Cth) contains laws regarding sentencing for Commonwealth offences.

Commonwealth offences are applicable throughout Australia.

Section 16AAA of the Act provides mandatory minimum sentences, where a person is convicted of a relevant Commonwealth child sexual abuse offence (listed below), also prescribing the minimum sentence of imprisonment.

Table of Mandatory Minimum Imprisonment Sentences

Offence (under the Criminal Code Act 1995 (Cth)): Minimum Sentence of Imprisonment:
Engaging in sexual intercourse with child outside Australia (section 272.8(1))

 

6 years
Causing child to engage in sexual intercourse outside Australia (section 272.8(2))

 

6 years
Engaging in sexual activity with child outside Australia (section 272.9(1)).

 

5 years
Causing child to engage in sexual activity outside Australia (section 272.9(2))

 

5 years
Aggravated offence – child with mental impairment or under care,

supervision or authority of defendant or degrading treatment or death (section 272.10).

 

7 years
Persistent sexual abuse of child outside Australia (section 272.11)

 

7 years
Benefitting from a sexual offence against children outside Australia (section 272.18).

 

6 years
Encouraging from a sexual offence against children outside Australia (section 272.19).

 

6 years
Aggravated offence (child abuse material outside Australia) – involving conduct on 3 or more occasions and 2 or more people (section 273.7).

 

7 years
Aggravated offence (child abuse material using postal service) – involving conduct on 3 or more occasions and 2 or more people (section 471.22)

 

7 years
Conduct for the purposes of electronic service used for child abuse material (section 474.23A).

 

5 years
Aggravated offence (child abuse material using carriage service) – involving conduct on 3 or more occasions and 2 or more people (section 474.24A)

 

7 years
Engaging in sexual activity with a person under 16 years of age using a

carriage service (section 474.25A(1)).

 

5 years
Causing a person under 16 years of age to engage in sexual activity with

another person using carriage service (section 474.25A(2)).

 

5 years
Aggravated offence of sexual activity with a child under 16 using a carriage service – child with mental impairment or under care, supervision or authority of defendant or degrading treatment or death (section 474.25B).

 

7 years

Section 16AAB of the Act provides mandatory minimum sentences where a person is convicted of a Commonwealth child sexual abuse offence and has previously been convicted previously of a child sexual abuse offence.

The child sexual abuse offence subject to the prior conviction may be under state, territory or Commonwealth law.

The Commonwealth child sexual abuse offence that will trigger this section, and the prescribed minimum penalties are listed below:

Offence (under the Criminal Code Act 1995(Cth)): Minimum Sentence of Imprisonment:
Sexual intercourse with young person outside Australia – in position of trust

or authority (section 272.12(1)).

 

3 years
Causing young person to engage in sexual intercourse outside Australia – in

position of trust or authority (section 272.12(2)).

 

3 years
Sexual activity with young person outside Australia – in position of trust and

Authority (section 272.13(1)).

 

2 years
Causing young person to engage in sexual activity outside of Australia – in position of trust and authority (section 272.13(2)).

 

2 years
Procuring child to engage in sexual activity outside Australia (section 272.14(1)).

 

4 years
Grooming child to engage in sexual activity outside Australia (section 272.15(1)).

 

4 years
Grooming person to make it easier to engage in sexual activity with a child outside Australia (third party grooming outside Australia) (section 272.15A(1)).

 

4 years
Preparing for or planning offence involving sexual intercourse or other sexual activity with child outside Australia (section 272.20(1)).

 

3 years
Preparing for or planning offence involving sexual intercourse or other sexual activity with young person outside of Australia (section 272.20(2)).

 

1 year
Possessing, controlling, producing, distributing, or obtaining child abuse

material outside Australia (section 273.6(1)).

 

4 years
Possession of child-like sex doll or other object (section 273A.1).

 

4 years
Using a postal or similar service for child abuse material (section 471.19(1)).

 

4 years
Requesting another person to use a postal or similar service for child abuse material (section 474.19(2)).

 

4 years
Possess, control, produce, supply, or obtain child abuse material for use through postal or similar service (section 471.20(1)).

 

4 years
Using a postal or similar service to procure persons under 16 (section 471.24(1)).

 

4 years
Sender using a postal or similar service to procure a person under 16 to

engage in sexual activity with another person (section 471.24(2)).

 

4 years
Sender using postal or similar service to procure a person under 16 to engage in sexual activity with another person in the presence of sender or another person (section 471.24(3)).

 

4 years
Using a postal or similar service to groom person under 16 to engage in

sexual activity with sender (section 471.25(1)).

 

4 years
Sender using postal or similar service to groom person under 16 to engage in

sexual activity with another person (section 471.25(2)).

 

4 years
Sender using postal or similar service to groom person under 16 to engage in

sexual activity with another person in the presence of sender or another

person (section 471.25(3)).

 

4 years
Using a postal service to groom another person to make it easier to procure persons under 16 to engage in sexual activity with sender (third party grooming postal service) (section 471.25A(1)).

 

4 years
Using a postal service to groom another person to make it easier to procure person under 16 to engage in sexual activity with another person (section 471.25A(2)).

 

4 years
Using a postal service to groom another person to make it easier to procure person under 16 to engage in sexual activity with another person in the presence of sender or another person (section 471.25A(3)).

 

4 years
Using a postal service or similar service to send indecent material to person under 16 (section 471.26(1)).

 

3 years
Using a carriage service for child abuse material (section 474.22(1)).

 

4 years
Possessing or controlling child abuse material obtained or accessed using a

carriage service (section 474.22A(1)).

 

4 years
Possessing, controlling, producing, supplying, or obtaining child abuse

material for use through a carriage service (section 474.23(1)).

 

4 years
Using a carriage service to procure persons under 16 years to engage in sexual activity (section 474.26(1)).

 

4 years
Using a carriage service to procure a person under 16 years to engage in sexual activity with another person (section 474.26(2)).

 

4 years
Using a carriage service to procure a person under 16 years of age to engage in sexual activity with another person in the presence of the sender or another person (section 474.26(3)).

 

4 years
Using a carriage service to groom a person under 16 years of age (section 474.27(1)).

 

4 years
Using a carriage service to groom person under 16 years of age to engage in

sexual activity with another person (section 474.27(2)).

 

4 years
Using a carriage service to groom person under 16 years of age to engage in

sexual activity with another person in the presence of the sender or another

person (section 474.27(3)).

 

4 years
Using a carriage service to transmit communication to groom another person to make it easier to procure person under 16 years to engage in sexual activity (third party grooming by carriage service) (section 474.27AA(1)).

 

4 years
Using a carriage service to groom another person to make it easier to procure person under 16 years to engage in sexual activity with another person (section 474.27AA(2)).

 

4 years
Using a carriage service to groom another person to make it easier to

procure person under 16 years of age to engage in sexual activity with

another person in the presence of the sender or another person (section 474.27AA(3)).

 

4 years
Using a carriage service to transmit indecent communication to person under 16 years of age (section 474.27A(1).

 

3 years

Section 16AAC provides that these provisions are not applicable to a person who was under 18 years old when the offence that the relevant provision specifies a minimum penalty for was committed.

Furthermore, the Court may impose a lesser sentence of imprisonment if the Court considers it appropriate due to the person pleading guilty or cooperating with law enforcement agencies in the investigation of the offence.

However, this reduction is limited to an amount that is up to 25% of the periods specified for each factor, meaning if both were present, a maximum reduction of 50% could occur.

Published on 15/04/2024

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin