R v Stiller

The applicant pleaded guilty to one count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) and requested that two other related offences be taken into account on sentence under s 16BA of the Crimes Act 1914 (Cth). The applicant was sentenced to three and a half years’ imprisonment with a non-parole period of 12 months. In sentencing the applicant, the learned sentencing judge was required to apply the mandatory minimum penalty regime. That regime permitted the learned sentencing judge to, in accordance with s 16AAC of the Crimes Act 1914 (Cth), reduce the applicant’s sentence below the mandatory minimum penalty to reflect his cooperation with law enforcement and his plea of guilty. The learned sentencing judge’s application of s 16AAC was at the heart of the appeal. Ultimately, the Court of Appeal (Mullins P with whom Dalton and Flanagan JJA agreed) found that neither of the approaches respectively advocated for by the applicant or respondent were wrong. However, whatever approach was adopted, it was critical that the sentencing remarks demonstrate that the sentencing judge did not exceed the restrictions on reductions imposed by s 16AAC. The learned sentencing judge’s remarks showed that his Honour was aware of the limitations mandated by s 16AAC. No error was identified in the approach taken by the sentencing judge. The applicant’s second ground of appeal, that the sentence was manifestly excessive, is not dealt with in this note.

Mullins P and Dalton and Flanagan JJA

24 March 2023

Background

On 23 March 2022, the applicant was convicted on his own plea of guilty of one count of using a carriage service to access child abuse material between 23 June 2020 and 2 February 2021, contrary to s 474.22(1) Criminal Code (Cth) (“subject offence”). [1].

The learned sentencing judge was also able to take into account, pursuant to s 16BA Crimes Act 1914 (Cth) (“Act”), two other similar offences in passing sentence. [2].

The learned sentencing judge sentenced the applicant to a sentence of three years and six months with a non-parole period of 12 months. [2].

The applicant appealed against his sentence on two grounds. The first ground being that the sentencing judge erred in his approach to the minimum mandatory sentencing regime. The second ground was that the sentence was manifestly excessive. [2]. Only the first ground is considered in this note.

At the time of the subject offence, the applicant had one prior entry in his criminal history for using a carriage service to access child pornography material on 14 November 2010. He pleaded guilty to that offence on 9 May 2012 in the District Court and was convicted and released on a recognisance release order (“2012 conviction”). [3].

Mandatory minimum sentencing regime

The applicant had to be sentenced in accordance with the mandatory minimum sentencing regime. [9].

The regime applied to the applicant because pursuant to s 16AAB of the Act:

(a)he had been convicted of a Commonwealth child sexual abuse offence; and

(b)his 2012 conviction was a child sexual abuse offence as defined by the Act. [9].

Therefore, a mandatory minimum head sentence of four years’ imprisonment applied to the applicant. [11].

Sections 16AAC(2) and (3) provide for reductions to the minimum penalties in certain circumstances. Those sections provide:

“(2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:

(a)the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;

(b)the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.

(3) If a court may reduce a sentence, the court may reduce the sentence as follows:

(a)if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty — by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(b)the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence — by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(c)if the court is taking into account both of the matters in paragraphs (a) and (b) — by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.”

The applicant had entered a plea of guilty and had cooperated extensively with police. [1], [5], [13], [18].

In sentencing the applicant, the sentencing judge held that:

“… the appropriate approach is to consider all of the matters in their entirety to assess what is in my view an appropriate sentence of the matter. If it be that sentence was less than the four years I would then be empowered, pursuant to section 16AAC, to reduce it to the point that I consider would be just in all of the circumstances”. [15].

In so doing, his Honour accepted the observations of McLure P (with whom Martin CJ and Mazza J agreed) in Bahar v The Queen (2011) 45 WAR 100 (“Bahar”). [15].

The Bahar approach

The Bahar approach has been adopted throughout Australia in relation to mandatory minimum sentences under Commonwealth legislation. [22]. In Bahar, McLure P found (at [54]), in the context of the Migration Act 1958 (Cth), that the statutory minimum and maximum penalties are “the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied”. [21].

The Court in Bahar explained (at [55]):

“First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise ‘category’ of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender.” [21].

Decisions of the New South Wales Court of Criminal Appeal

Prior to the applicant’s sentencing, two cases were handed down by the New South Wales Court of Criminal Appeal that followed Bahar where s 16AAB of the Act applied: R v Delzotto [2022] NSWCCA 117 (“Delzotto”) and Glasheen v R [2022] NSWCCA 191 (“Glasheen”). [24].

On appeal, the applicant submitted that the Court should adopt the approach taken by the New South Wales Court of Criminal Appeal in Delzotto and Glasheen. This approach has two steps. First, the court determines the provisional penalty by reference to all the relevant factors in s 16A(2) of the Act, except for the factors in s 16A(2)(g) (a plea of guilty) and s 16A(2)(h) (cooperation with law enforcement). Second, the court may then reduce the sentence by reference to those factors, in the appropriate percentage amounts proscribed by s 16AAC(3), namely up to 25% for a plea of guilty under s 16AAC(3)(a) and up to 25% for cooperation with law enforcement under s 16AAC(3)(b). [29].

By contrast, the respondent submitted that ss 16AAC(2) and (3) do not require that separate consideration be given to the s 16AAC(2) factors but rather that, as part of the instinctive synthesis of determining the appropriate sentence, a court may reduce a sentence below the mandatory minimum to give adequate recognition to those factors. However, the reduction to the sentence cannot exceed the restrictions imposed by s 16AAC(3). [30].

Decision of the Court of Appeal

Ultimately, the Court held (Mullins P with whom Dalton and Flanagan JJA agreed) that neither approach was wrong. Rather what is important is that it is clear from the sentencing remarks that the reductions do not exceed those permitted by s 16AAC. [32].

The Court also observed that it is desirable for the sentencing judge to state the exact reductions. [32].

Here, the learned sentencing judge’s sentencing remarks demonstrated that his Honour was aware of the restrictions on reductions that could be made in accordance with ss 16AAC(2) and (3).

Given his Honour’s sentencing remarks and the ultimate head sentence, the applicant failed to demonstrate any error on the part of the sentencing judge’s approach to s 16AAC. [34]. The application for leave to appeal was refused. [38].

A Hughes of Counsel