On 23 June 2020, sections 16AAA, 16AAB and 16AAC were inserted into the Crimes Act 1914 (Cth) by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth).
Amongst others, these legislative amendments introduced a mandatory minimum sentencing scheme to apply to Commonwealth child sex offences. In the Explanatory Memorandum presented to Parliament, it was advanced that the reform was required as “current sentences do not sufficiently recognise the harm suffered by victims of child sex offences” and “do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children”.
The Law
Sections 16AAA and 16AAB now provide for statutory minimum sentences if a person is convicted of certain sexual offences against a child or if the person is convicted of a sexual offence against a child, having been previously convicted for a like offence.
Section 16AAA reads:
Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty |
||
Item |
Column 1 Offence |
Column 2 Sentence of imprisonment |
1 |
offence against subsection 272.8(1) of the Criminal Code |
6 years |
2 |
offence against subsection 272.8(2) of the Criminal Code |
6 years |
3 |
offence against subsection 272.9(1) of the Criminal Code |
5 years |
4 |
offence against subsection 272.9(2) of the Criminal Code |
5 years |
5 |
offence against section 272.10 of the Criminal Code |
7 years |
6 |
offence against section 272.11 of the Criminal Code |
7 years |
7 |
offence against section 272.18 of the Criminal Code |
6 years |
8 |
offence against section 272.19 of the Criminal Code |
6 years |
9 |
offence against section 273.7 of the Criminal Code |
7 years |
10 |
offence against section 471.22 of the Criminal Code |
7 years |
11 |
offence against section 474.23A of the Criminal Code |
5 years |
12 |
offence against section 474.24A of the Criminal Code |
7 years |
13 |
offence against subsection 474.25A(1) of the Criminal Code |
5 years |
14 |
offence against subsection 474.25A(2) of the Criminal Code |
5 years |
15 |
offence against section 474.25B of the Criminal Code |
7 years |
Section 16AAB reads:
(1) This section applies in respect of a person if:
(a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence ); and
(b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.
(2) Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty |
||
Item |
Column 1 Current offence |
Column 2 Sentence of imprisonment |
1 |
offence against subsection 272.12(1) of the Criminal Code |
3 years |
2 |
offence against subsection 272.12(2) of the Criminal Code |
3 years |
3 |
offence against subsection 272.13(1) of the Criminal Code |
2 years |
4 |
offence against subsection 272.13(2) of the Criminal Code |
2 years |
5 |
offence against subsection 272.14(1) of the Criminal Code |
4 years |
6 |
offence against subsection 272.15(1) of the Criminal Code |
4 years |
7 |
offence against subsection 272.15A(1) of the Criminal Code |
4 years |
8 |
offence against subsection 272.20(1) of the Criminal Code |
3 years |
9 |
offence against subsection 272.20(2) of the Criminal Code |
1 year |
10 |
offence against subsection 273.6(1) of the Criminal Code |
4 years |
11 |
offence against subsection 471.19(1) of the Criminal Code |
4 years |
12 |
offence against subsection 471.19(2) of the Criminal Code |
4 years |
13 |
offence against subsection 471.20(1) of the Criminal Code |
4 years |
14 |
offence against subsection 471.24(1) of the Criminal Code |
4 years |
15 |
offence against subsection 471.24(2) of the Criminal Code |
4 years |
16 |
offence against subsection 471.24(3) of the Criminal Code |
4 years |
17 |
offence against subsection 471.25(1) of the Criminal Code |
4 years |
18 |
offence against subsection 471.25(2) of the Criminal Code |
4 years |
19 |
offence against subsection 471.25(3) of the Criminal Code |
4 years |
20 |
offence against subsection 471.25A(1) of the Criminal Code |
4 years |
21 |
offence against subsection 471.25A(2) of the Criminal Code |
4 years |
22 |
offence against subsection 471.25A(3) of the Criminal Code |
4 years |
23 |
offence against subsection 471.26(1) of the Criminal Code |
3 years |
24 |
offence against subsection 474.22(1) of the Criminal Code |
4 years |
25 |
offence against subsection 474.23(1) of the Criminal Code |
4 years |
26 |
offence against subsection 474.26(1) of the Criminal Code |
4 years |
27 |
offence against subsection 474.26(2) of the Criminal Code |
4 years |
28 |
offence against subsection 474.26(3) of the Criminal Code |
4 years |
29 |
offence against subsection 474.27(1) of the Criminal Code |
4 years |
30 |
offence against subsection 474.27(2) of the Criminal Code |
4 years |
31 |
offence against subsection 474.27(3) of the Criminal Code |
4 years |
32 |
offence against subsection 474.27AA(1) of the Criminal Code |
4 years |
33 |
offence against subsection 474.27AA(2) of the Criminal Code |
4 years |
34 |
offence against subsection 474.27AA(3) of the Criminal Code |
4 years |
35 |
offence against subsection 474.27A(1) of the Criminal Code |
3 years |
Section 16AAC provides for certain exclusions to the requirement to impose mandatory minimum sentences, including in circumstances where the offender is aged under 18 at the time of the offence.
Importantly, the Court remains empowered to impose a sentence of imprisonment less than the prescribed minimum penalty, to take into account the person pleading guilty and/or the person’s cooperation with law enforcement. In this regard, ss.16AAC(2) and (3) are statutory mechanisms that allow a Court to impose a sentence of imprisonment less than the mandatory minimum.
Judicial Consideration
On 13 March 2024, the High Court provided guidance as to the appropriate approach that should be applied by sentencing Courts, when applying the new minimum sentencing regime in Hurt v R; Delzotto v R [2024] HCA 8.
The Court held that a statutory minimum should be approached in the same way as a statutory maximum penalty, in that they both fix “ends” of the sentencing yardstick, as referred to in Markarian v The Queen. The High Court further held that the correct approach when applying mandatory sentences was one of ‘double function’ being:
- It confines the power of this Court to prohibit it from imposing a sentence less than the statutory minimum.
- It sets the beginning of the yardstick against which the particular offending can be assessed and within which a court is to exercise its sentencing discretion to determine the appropriate sentence.
As a yardstick, the mandatory minimum imposes an increased starting point for the appropriate term of imprisonment for the offence in the least serious circumstances, and operates to increase the appropriate term of imprisonment generally for that offence.
More recently on 1 November 2024, the NSW Court of Criminal Appeal confirmed in McGregor v R [2024] NSWCCA 200 that aggregate sentences are available for multiple Commonwealth sentences, including for offences subject to mandatory minimum sentences.
Application
When sentencing an offender for Commonwealth offences, the Court is to apply Part 1B of the Crimes Act. The fundamental principle arising from Part 1B is that the Court must impose a sentence “that is of a severity appropriate in all the circumstances of the offence”. In doing so, the Court is to take into account the matters listed in s 16A(2) of the Crimes Act 1914 (Cth) to the extent that they are relevant and known to the Court.
When sentencing an offender for an offence which carries a mandatory minimum penalty, the Court must still consider all relevant factors in the ordinary way as part of an instinctive synthesis, save for the offender’s plea of guilty and any co-operation with law enforcement authorities.
If the Court then considers the offence to fall in the ‘least worst category’ for an offence of that type, the Court may only then determine whether the s 16AAC mechanism is required to move below the prescribed minimum term.
For example, if a Court were sentencing an offender for an offence contrary to s. 474.25A(1) of the Criminal Code (Cth) (minimum sentence of 5 years imprisonment) and found that particular example of offending to fall in the least worst category, the Court could then apply a 25% discount to reduce the head sentence below the mandatory minimum of 5 years to 3 years and 9 months to reflect the offender’s early guilty plea.
Conclusion
Sentencing for Commonwealth offenders is already a complex exercise with numerous statutory restrictions and requirements. The introduction of mandatory minimum sentences for some Commonwealth child sex offences increases complexity on sentence and reduces judicial flexibility.
Should you or someone you know be charged with Commonwealth child sex offences, it is essential you receive legal advice at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Northern NSW (02 5552 1902), Canberra (02 5104 9640) or Perth (08 6255 to make an appointment to speak to one of our lawyers.