McGregor v R [2024] NSWCCA 200

McGregor v R [2024] NSWCCA 200 · Read the judgment on AustLII

Catchwords: Federal Sentencing – Mandatory minimum sentences – Aggregate sentencing

In this case a five-judge bench of the CCA, in a unanimous decision, has considered the correct approach to discounts in federal sentencing cases involving mandatory minimum sentences. The Court also held that aggregate sentences remain available for this category of federal sentences when imposed in NSW.

The applicant pleaded guilty and was sentenced for four child sexual offences. One of those offences carried a mandatory minimum sentence of 7 years, pursuant to s 16AAA of the Crimes Act 1914 (Cth). He was sentenced to 11 years and 6 months, with a non-parole period of 8 years.

Section 16AAA imposes mandatory minimum sentences for a range of offences relating to either child sexual abuse or child abuse material. Section 16AAB similarly creates a mandatory sentencing regime for offenders who offend for their second or subsequent time; practitioners might have noticed a recent increase in the use of these provisions in cases which would previously have resulted in State-based charges for possession of child pornography. As a result of ss 16AAC(2) and (3), a Court can impose a sentence which is less than the mandatory minimum by discounting for a plea of guilty (by up to 25%), and / or if there is cooperation with law enforcement agencies (also by up to 25%).

The availability of these discounts resulted in two possible ways that the discounts should be calculated:

• The first is to calculate the discount as a fraction of the minimum penalty. For example, the maximum discount for a plea of guilty (25%) in a case where the minimum sentence is 4 years would be 1 year in this hypothetical, regardless of what the actual sentence is. On this interpretation, a person who is sentenced to more than the minimum sentence would still have their discount capped at a lower level, because the discount would be tied to the minimum sentence, rather than the undiscounted sentence. Thus, on this approach, a person who is sentenced to 5 years in a case which carries a minimum sentence of 4 years would receive at most a 1 year discount for their plea of guilty.
• This was the approach taken by the sentencing judge.
• The second approach is to calculate the discount by reference to the actual sentence which would otherwise be imposed, and then to check it against the mandatory minimum floor. So, to stick with the example of a case with a 4 year minimum, the discount for the plea of guilty (25%) would be 1 year, if the person would otherwise receive the minimum sentence. But if the judge would otherwise impose a sentence of, say, 8 years, then on this scenario the 25% discount for the plea of guilty would result in a discount of 2 years.

In this case, the Crown conceded that the sentencing judge had erred by capping the discount by reference to the mandatory minimum, and the CCA (Bell CJ, Kirk JA, Harrison CJ at CL, Davies and Sweeney JJ, in a unanimous five-judge judgment) accepted that concession.

Courts across Australia (see [14]-[15]) had varied in whether they took the first or second approach set out above. The words of the section are ambiguous (at [22]-[23]). The first construction set out above is not harmonious with the text of the section. Adopting it would involve a substantial departure from the ordinary application of sentencing factors by introducing a numerical cap, calculated by reference to the minimum penalty. The first construction would additionally be somewhat arbitrary and capricious, and would dilute the discount for an offender with a higher (undiscounted) sentence, creating a disincentive for a person who is facing a long sentence to plead guilty (at [25]-[27]). The second construction avoids this unfairness because the discount will be informed by the chosen starting point, which will vary from case to case, as opposed to being calculated by reference to the mandatory minimum sentence, which will not (at [28]).

The Court did note that s 16AAC does not itself require a sentencing judge to impose a discount in percentage terms for the plea and / or assistance, though the judge may well wish to do so; the percentages are specified in the section only in order to identify the minimum floor of the sentence (at [34]).

The Crown having conceded error, the Court needed to resentence the applicant. However, as part of that exercise the Crown asserted that aggregate sentences were not available in cases involving a mandatory minimum sentence.

The Crown made both a broad argument (based on asserted inconsistency between State and federal sentencing regimes) and a narrower argument (based on the text of ss 16AAA-16AAC). Both arguments were rejected.

The answer to the broader argument was one of construction: When properly construed, the NSW aggregate sentencing regime simply requires the court to undertake on an indicative basis the same sentencing exercise for each offence as would have otherwise occurred (albeit perhaps in a more abbreviated way). It does not alter how that sentencing exercise is to be undertaken (at [79]). In relation to the narrower argument, the Court considered that as long as an aggregate sentence of at least the minimum term is imposed, then the requirement has been satisfied. The fact that the sentence is also imposed in punishment of other offences does not alter the fact that the aggregate and operative sentence is imposed in punishment of the listed offence(s) (at [97]). However, this does not mean that a court can announce an indicative sentence for a count that requires a minimum sentence which is less than the minimum; to do so would cause the sentencing discretion to miscarry (at [102]).

The applicant was resentenced to 10 years and 9 months with a non-parole period of 7 years and 6 months.