Hurt v The King; Delzotto v The King [2023] HCATrans 52 (21 April 2023)

Last Updated: 4 May 2023

[2023] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C25 of 2022
No C26 of 2022

B e t w e e n -

RAYMOND JAMES CHOI HURT

Applicant

and

THE KING

Respondent

Office of the Registry
Sydney No S140 of 2022

B e t w e e n -

ENRICO ROBERT CHARLES DELZOTTO

Applicant

and

THE KING

Respondent

Applications for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 APRIL 2023, AT 2.00 PM

Copyright in the High Court of Australia

____________________

MR J. WHITE, SC: May it please the Court. I appear with my learned friend MR K.V. LEE for the applicant in the Hurt matters. (instructed by Legal Aid ACT)

MR R.J. WILSON, SC: May it please the Court. I appear with my learned friend MR N.J. BROADBENT for the applicant, Mr Delzotto. (instructed by Legal Aid NSW)

MS S.G. CALLAN, SC: If it please the Court, I appear with MS K.M.J. BRECKWEG and MS J.S. CALDWELL for the respondent in all three matters. (instructed by Commonwealth Director of Public Prosecutions)

Given the practices of the courts below, we have brought our wigs, but we were not quite sure, depending on who is speaking, whether we should be wearing them or not.

GAGELER J: Well, you do not have a wig on at the moment, but you are speaking. Will you remain on your feet, Ms Callan?

MS CALLAN: Yes.

GAGELER J: I do not mind what you do about the wig, but I do want to hear you on the substance of these applications.

MS CALLAN: Yes.

GAGELER J: Why should special leave not be granted?

MS CALLAN: Well, your Honour because, as we have set out in our written submission, the Crown response which appears at each of the application books, relevantly in the matter of Hurt at page 129 and Delzotto at page 208. In our submission, these decisions on appeal are not attended by sufficient doubt. The Crown contends that the so‑called Bahar approach to section 16AAB of the Crimes Act reflects and is concordant with the exercise of statutory construction, which we say is at the heart of this matter.

GAGELER J: You see, the problem that can develop with a line of precedent at the intermediate appellate court level is that when the rule of precedent that applies is that a decision of another court will be followed unless clearly wrong, a line of authority can be perpetuated without anyone second‑guessing at what might be regarded, systemically, as an appropriate level. The particular difficulty here is that there is one judge in one court who has said the line is clearly wrong. How do you deal with that?

MS CALLAN: Well, your Honour, the task of this Court is, as reflected in our submissions, to approach the exercise without being burdened by those issues of comity, and how we deal with that is by – as developed in our response – undertaking the task: look at the text, look at its statutory context, have regard to what, we say, are the relevant matters.

GAGELER J: So, if we do that, is it best to do it on an appeal or on a special leave application?

MS CALLAN: I take your Honour’s point. We do so in aid of our contention that this would not enjoy sufficient prospects as to warrant the grant of leave, but I recognise your Honour’s concern that that task be done at the right point in time.

GAGELER J: Yes.

GLEESON J: I think, in my mind, it might be helpful if you could address both the question of whether or not Bahar applies to this particular statutory provision, as well as the question of whether it is arguable that Bahar is wrong.

MS CALLAN: Yes.

GLEESON J: Thank you.

MS CALLAN: The provision which the court was dealing with in Bahar, plainly enough, is not this provision – which is, relevantly, section 16AAB of the Crimes Act (Cth) – but we say that there are two features of the language of the provisions which are, relevantly, the same, which mean that the approach articulated in Bahar has equal operation. In that respect, if your Honours – I could do it by reference to what appears in – sorry, copies of the provisions that appear in the Hurt application book. In my submission, the critical features of the relevant jurisdiction is ‑ ‑ ‑

GLEESON J: Could we adjourn for a minute? I think we might adjourn.

GAGELER J: Yes, we will adjourn momentarily.

AT 2.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.08 PM:

GAGELER J: Ms Callan.

MS CALLAN: Your Honours asked, as I understand it, why ‑ ‑ ‑

GAGELER J: The Court will adjourn.

AT 2.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.00 PM:

GAGELER J: Ms Callan.

MS CALLAN: Can I thank the Court for that time and for permitting me to remain seated. Your Honour Justice Gleeson asked me a question which was about the relevant similarities or not as between the statutory regime under consideration in Bahar and that which is before the Court here. Can I address that question by reference to the Delzotto application book. At page 184, there is an extract from the Migration Act, section 233C, which was under consideration by the court in Bahar. I draw the Court’s attention to three relevant features. The first is what appears in subparagraph (2), and that is the language employed in that subparagraph, first that:

The court must –

That is a statutory command to the court:

impose a sentence of imprisonment of at least –

And when we come to it, your Honours, in my submission, those are the two key dimensions of this provision, and they are relevantly identical when it comes to section 16AAB. The second feature is in subsection (1), which makes it clear that this section applies to particular offences; in this instance, sections 232A and 233A.

I will come to it, but again, in section 16AA, relevantly (b), it is directed towards a particular set of offences; that is, it is not a blanket provision, and I will come to an associated point about that in a moment. The third is that it is a provision which is directed at a particular category of offender, and subparagraph (2)(a), relevantly, it directs a court to:

impose a sentence of imprisonment of at least –

and the period there expressed is 8 years, but only in instances:

if the conviction is for a repeat offence –

So, they are the three features. If I ask the Court then to turn to section 16AAB which commences at page 111 of the Delzotto application book. Subsection (2), as I said, employs precisely the same language, that:

the court must impose . . . a sentence of imprisonment of at least –

Then the second feature is about the nomination of particular offences to which the provision applies. The third feature which is present in section 16AAB – your Honours might observe is absent from the associated provision 16AAA – is that 16AAB has work to do if, as is made clear in subsection (1):

the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.

That is a recidivist offender, and in that respect, it has operation only for a particular class of offender. That addresses, I hope, your Honour’s question about what we say are the relevant features of the statutory provisions under consideration in Bahar and before this Court, which we say are, relevantly, the same.

The next point to be made is that, in my submission, the command which has been given by this provision is a command in respect of the offence for which a sentence is being passed. It is not a command which is directed towards the jurisdiction of the court. This Court in Park was quite clear in identifying the relevant difference between a jurisdictional limit to a sentencing exercise, which is not a matter required – sorry, which is not a matter required to be taken into account in determining an appropriate sentence.

This Court said that the jurisdictional limit relates to a sentence in court, not to the task of identifying and synthesising relevant factors. In Park, the High Court contrasted jurisdictional limit with a maximum penalty, which is well established is relevantly to be taken into account when a court comes to the task of identifying and synthesising relevant factors.

The argument put strongly by Justice Loukas‑Karlsson in dissent in Hurt is that what occurred in Bahar was an exercise, an assumption, of false equivalence between a mandatory and a minimum sentence. In my submission, on scrutiny, what is being contended for in Pot and in the applicant’s submissions and these applications is so described by the applicants as – that this provision is akin to a jurisdictional limit. In my submission, that has particular consequences if it is to be approached in the way that this Court in Park made clear as to a difference between a provision which goes to jurisdiction and a provision which goes to power.

If the applicant’s contention is good, the question is, well, what does that mean for this provision in terms of the sentencing exercise? If it is akin to a jurisdictional limit, then that suggests what follows is that it is not relevant for the Court to take it into account in the task it is undertaking in identifying and synthesising all of the relevant factors.

Conscious of your Honour Justice Gageler’s observation as to the limits of what this application is concerned with, in terms of the task of statutory construction, the reason that the respondents contend that these applications do not enjoy sufficient prospects of success is because there are a number of features of this provision which, we say, make clear this is not directed towards a jurisdictional limit on the court. As soon as it be accepted that it is relevant to the power of the court, and accordingly, it is permissible and ought be taken into account by the court when it is undertaking its sentencing task, then that is not a matter of false equivalence. That renders the provision a minimum penalty in the same category as a maximum penalty.

Why and how does the court take it into account? Because it tells the court something very clearly about what the legislature considers as to the seriousness of the offence. And that is why, in my submission, the doubt which is being expressed in dissent by Justice Loukas-Karlsson and elsewhere in obiter remarks failed to grapple with the distinction which is central to, and the reason why, a minimum penalty has been appropriately characterised, we say, by President McLure in Bahar as the other end of the exercise, where it exists.

If that characterisation is accepted, then what flows accords with the way this provision has been constructed by the majority in Hurt and by the Court of Criminal Appeal in Delzotto. The question of jurisdiction, or the notion of the jurisdictional limit, in my submission, has a real pertinence here, in the way that this Court would consider the operation of this provision and whether it can – it detects doubt sufficient to warrant the grant of special leave.

In my submission, the legislative history, which is dealt with in writing in the Crown’s response, reinforces the construction for which we contend, and the operation of this provision in this sentencing exercise. The other point to be made is that which then‑President Allsop made in the five‑Bench decision of Karim, and that is the principle of equal justice, and the consequence of a construction – an application of a mandatory minimum provision, such as this, which is contended for by the applicants.

The principle of equal justice, we say, and President Allsop emphasised, firmly favours the manner for which we contend as to the role of this provision – the sentencing exercise. There is a reference in writing variously in this decision, and in the parties’ submissions, to the so‑called compression effect that would follow if this provision is treated as akin to a jurisdictional limit. That is in such tension with the principle of equal justice, in my submission, that, unless the legislature expressed as to being its intention, it would not be a construction that this Court would favour.

The other, in my submission, key consideration in terms of the proper application of a mandatory minimum provision such as this is the terms of section 16A(1) of the Crimes Act (Cth). A copy of that appears at page 108. By that provision, the court is commanded to:

impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Now, there is a point which has been made by a number of judges in various of the appellate decisions, most recently by Justice Simpson in Taylor, which really invokes the principle of proportionality, and that principle of proportionality finds legislative expression in subparagraph (1).

In my submission, a strong contextual reason favouring the Bahar approach – to put it that way – is that, for the exercise to be conducted in the way contended for by the applicants, a consequence would be in certain circumstances a sentence imposed by the sentence judge which the sentence judge did not regard as of a severity appropriate on all the circumstances. Now, an argument against that, of course, is that that is subject to what appears in section 16AB but, in my submission, it better accords with a coherent construction of this part of the scheme to construe 16AAB in the manner for which we contend, because that accords with and enables 16A(1) to apply.

That is the difficulty with contending that these mandatory minimum provisions are akin to a jurisdictional limit. That, in my submission, could not be reconciled with section 16A(1) unless it was being contended that the latter is to be preferred over the former and that there is an inconsistency, the result of which means that the latter prevails. In my submission, that is not only unpalatable, but also unnecessary on the construction for which we contend.

The applicants, in their submissions – but also in the carefully‑reasoned decisions in the matter of Hurt, Justice Mossop at first instance and in dissent Justice Loukas-Karlsson on appeal, and also the obiter remarks of Justice Adams in Kol – seek to invoke the principle of legality. For instance, Justice Adams speaks about interpreting a mandatory minimum provision such as this in a way which does the least damage to that principle.

In answer to that, we say, by reference back to the legislative history, and the explanatory memorandum in Second Reading Speech, that here the legislature has expressed a clear intention to infringe the right to personal liberty. It is done, though, in respect of a particular category of offence – and, in the case of 16AAB, a particular category of offender – that, being expressed in its clear terms, the principle of legality does not assist, in my submission, or does not undermine the construction for which we contend.

Unless there is anything further, those are my submissions.

GAGELER J: Thank you, Ms Callan. Mr White, Mr Wilson, we do not need to call on you. In each matter there will be a grant of special leave to appeal. Would it be correct that these appeals should be heard concurrently?

MR WHITE: Yes, your Honour.

MR WILSON: Yes, your Honour.

GAGELER J: And they would be completed within one day?

MR WHITE: Yes, I would think so, your Honour.

MR WILSON: Yes, your Honour.

GAGELER J: Ms Callan, do you agree with that?

MS CALLAN: Yes.

GAGELER J: Yes. Very well, thank you. The Court will adjourn until 10.00 am on Tuesday, 9 May.

AT 3.19 PM THE MATTERS WERE CONCLUDED