Rex v Taylor [2022] NSWCCA 256
Rex v Taylor [2022] NSWCCA 256 · Read the judgment on AustLII
Catchwords: Mandatory minimum sentences – Commonwealth sentencing – breach of conditional liberty
In this decision the CCA has held that there is no rule of law which concludes that in all cases involving a mandatory minimum it is a precondition, in order to obtain that minimum sentence, for a sentencing judge to conclude that the sentence is at the bottom of the range of objective seriousness. Moreover, there are worthwhile observations about the relevance of a breach of conditional liberty in the sentencing process.
The respondent (this was a Crown appeal) was sentenced for an offence of using a carriage service to procure a person under the age of 16 for sexual activity. Where a person has a previous conviction for a child sex offence, the Crimes Act 1914 (Cth) prescribes a mandatory minimum sentence for offenders convicted of certain Commonwealth child sex offences (of which this was one). In this case, a mandatory minimum of 4 years was prescribed. The only reductions below that minimum are for a reduction for a plea of guilty, or certain kinds of assistance to authorities.
The respondent had a history of sexual offences against children. Whilst on good behaviour bonds (bonds which will become relevant later in this summary), the respondent participated in online discussions with a police officer who was posing as a 13-year-old boy. The respondent and the ‘boy’ arranged to meet up, the respondent attended the address, and he was arrested. He pleaded guilty in the Local Court. The respondent was eventually sentenced to imprisonment for 3 years, with a recognizance release order (that is, the Commonwealth equivalent of a parole period, in cases involving shorter sentences) after 18 months. That was obviously below the 4 year minimum sentence set by the legislation: it had been reduced by 25% due to the respondents plea of guilty.
The Crown appealed, asserting, amongst other things, that the sentence was erroneous because the judge had not found that the offence was in the least serious category, and therefore a sentence at the mandatory minimum level was not available. Another ground asserted that it was an error to fail to take into account that the offence was committed while the respondent was on four good behaviour bonds.
The CCA (Simpson AJA, Davies J agreeing with some additional remarks, Wilson J agreeing in part and dissenting in part) dismissed the Crown’s appeal. The central question which arose on this appeal was whether, by prescribing a minimum sentence, the legislature precluded – as a matter of law – the imposition of the mandatory minimum sentence in any case other than an offence at the lowest end of the range of objective seriousness. Crucially, on this point, the judges were agreed: neither the cases nor the legislation supports such a conclusion. Mandatory minimum penalties are relatively rare, but where one is prescribed it must, like a maximum penalty, operate as a yardstick (at [61]). However, the mandatory minimum is not the only factor, nor even the predominant factor. It constitutes one end of a spectrum into which the case at hand must be fitted. The minimum imports an additional constraint into the evaluation of proportionality, but it does not eliminate proportionality as an important sentencing consideration. It remains true that judges should be allowed as much flexibility as is consonant with consistency of approach and as accords with the statutory regime (at [62], quoting earlier authority). Careful attention must be paid to a mandatory minimum; just as any sentence may not exceed the statutory maximum, neither may a sentence be lower than a statutory minimum. But it does not follow that unless an offence is found to be in the least serious category of offending, the minimum can never be imposed. That will be a matter within the sentencing discretion of the sentencing judge to be determined on established sentencing principles (at [66]-[67]). It might well be that it will be rare that a sentence at the minimum meets the requirements of sentencing unless it is properly in the lowest category of offending (at [69]). But, for the above and other reasons, it is incorrect to say that unless an offence is (expressly) found to be in the least serious category of offending, a sentence in excess of the minimum must as a matter of law be imposed (at [78]).
Another ground asserted that the judge erred by failing to take into account a ‘material consideration’, being the fact that the respondent had been on a number of good behaviour bonds at the time of this offending. Simpson AJA (with whom both Davies and Wilson JJ agreed on this topic) observed the fact that an offence is committed whilst on conditional liberty to be too important a sentencing consideration to be taken into account subliminally. That is all the more so where the offending is of the same kind (at [89]). A breach of conditional liberty is not only relevant but a ‘seriously aggravating factor and an important sentencing consideration’ (at [86]).
There was also, in the three judgments, an interesting three-way divergence of views about what to do in Crown appeals when there is an error of law – but the divergence goes beyond what can be comfortably summarised in these pages, and applies only to a vanishingly small category of matters – though it makes excellent fodder for the kind of black letter wonk who wants to delve deeply into when the Court will intervene in those rare Crown appeals.