House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)

Schedule 6 - Minimum sentences

Part 1 - Main amendments

Crimes Act 1914

193. Child sexual abuse and conduct such as "grooming" and procuring has significant impacts on child victims and the community. Accordingly, a significant penalty is necessary to protect the community, reflect the harm done to victims and deter others from offending.

194. This Schedule inserts mandatory minimum penalties into the Crimes Act. Mandatory minimum penalties will apply in two circumstances: firstly, for offences classified as the most serious Commonwealth child sex offences (section 16AAA); secondly, to all Commonwealth child sex offences (excluding section 474.25C of the Criminal Code) where the Commonwealth child sex offence(s) are a second or subsequent offence (section 16AAB).

195. Mandatory minimum penalties do not limit judicial discretion of courts to set the non-parole period. With the exception of a limited number of offences (such as terrorism, treason and espionage), the Crimes Act does not prescribe how a non-parole period should be determined.

196. This Schedule does not impact the current requirement for the courts to consider all the circumstances, including the matters listed in section 16A of the Crimes Act, when fixing a non-parole period. This allows the courts to take into account individual circumstances and any mitigating factors in considering the most suitable non-parole period.

Item 1 - At the end of subsection 16A(1)

197. This item clarifies that, despite section 16A(1), there will be applicable minimum penalties for certain Commonwealth child sex offences under proposed sections 16AAA, 16AAB and 16AAC.

Item 2 - After section 16AA

Section 16AAA Minimum penalties for certain offences

198. The proposed section 16AAA and relevant table establishes that if a person is subject to an offence or offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2. For example, where a person commits an offence against section 272.8(1) of the Criminal Code (sexual intercourse with a child outside Australia), the person must be sentenced to a minimum penalty of 6 years' imprisonment, subject to the reduction principles in proposed section 16AAC. It is also noted that in accordance with existing Commonwealth law, the maximum penalty of life imprisonment is taken to be 30 years' imprisonment for the purposes of calculating the mandatory minimum.

199. The offences included under the proposed section 16AAA attract a minimum penalty upon a first and subsequent conviction. The offences are limited to the serious Commonwealth child sex offences involving engaging in sexual activity with children or aggravated offences within Division 272, 273, 471 and 474 of the Criminal Code.

Section 16AAB Second or subsequent offence

200. The proposed section 16AAB and relevant table sets out the minimum penalty a person is to be sentenced for an individual offence where that offence is a second or subsequent offence and the requirements for applying the second or subsequent offence minimum penalties are met.

201. For second or subsequent offence minimum penalties to apply, the person must be convicted of a "Commonwealth child sexual abuse offence". The definition of "Commonwealth child sexual abuse offence" will be set out in the definitions section of the Crimes Act (see item 1, Schedule 14 - Definitions) to mean a Commonwealth child sexual abuse offence other than a serious offence captured by proposed section 16AAA above.

202. The proposed subsection 16AAB(1) sets out the circumstances that must be met before minimum penalties can be applied to an offence for being a second or subsequent offence. The proposed paragraph 16AAB(1)(a) requires that the person has been convicted and is being sentenced for a Commonwealth child sexual abuse offence (the current offence).

203. The proposed paragraph 16AAB(1)(b) requires that the person must have been convicted previously of a child sexual abuse offence in an earlier sitting. The reference to "in an earlier sitting" is intended to exclude a first time offender being subject to the minimum penalties where the person has been convicted and is now being sentenced for multiple "child sexual abuse offence(s)". Paragraph 16AAB(1)(b) utilises the definition of "child sexual abuse offence" to be inserted in the Crimes Act which includes certain Commonwealth child sex offences as well as state and territory registrable child sex offences (see item 1 of Schedule 14).

204. The proposed section 16AAB and relevant table establishes that if a person is subject to the offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2, subject to any reductions under proposed section 16AAC. The offences within the table are the remainder of the child sexual abuse offences except sections 474.25 and 474.25C of the Criminal Code.

205. Section 474.25 of the Criminal Code is not suitable for mandatory minimum penalties due to the offence being for Internet Service Providers and Internet Content Hosts. The penalty for section 474.25 of the Criminal Code was recently increased from 100 penalty units to 800 penalty units by the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019.

206. Section 474.25C of the Criminal Code is an offence targeted at the very preliminary stages of the offending spectrum. It captures those who engage in conduct to prepare to cause harm, without the need to demonstrate a sexual intent. As such, mandatory minimum penalties will not apply to section 474.25C of the Criminal Code.

207. An example of the mechanics of the second or subsequent offence minimum penalties regime would be where an offender has previously been convicted of a state or territory child abuse material possession offence 12 months ago and that offender is now being sentenced for accessing child abuse material through a carriage service. The court would be required to apply a minimum penalty of 4 years, subject to any reductions under proposed section 16AAC.

Section 16AAC Exclusions and reductions - minimum penalties

208. The proposed section 16AAC sets out the exclusions and reductions to the mandatory minimum penalties. Exclusion - People aged under 18

209. Proposed subsection 16AAC(1) provides that offenders who were under the age of 18 years when they committed a Commonwealth child sex offence are excluded from the minimum penalty that would otherwise be applicable under proposed section 16AAA or 16AAB.

Reduction of minimum penalty

210. The Bill recognises the value of a guilty plea and cooperation with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective criminal justice system and to reduce impacts on witnesses and victims. As such, the courts are able to exercise a degree of discretion when imposing the minimum penalties.

211. The proposed subsection 16AAC(2) permits the court to impose a sentence of imprisonment of less than the minimum penalties specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2). This can be done 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) of the Crimes Act, the person pleading guilty, and

(b)

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

212. In reducing the minimum penalty, the proposed subsection 16AAC(3) sets out the restrictions on any reductions done so under the proposed subsection 16AAC(2). Proposed paragraph 16AAC(3)(a) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed paragraph 16AAC(2)(a) (guilty plea). Proposed paragraph 16AAC(3)(b) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed paragraph 16AAC(2)(b) (law enforcement cooperation). The proposed paragraph 16AAC(3)(c) allows for a reduction of up to 50% taking into account both of the matters in paragraphs (a) and (b).

213. The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the tables in section 16AAA and subsection 16AAB(2).

Item 3 - Application provisions

214. Subitem 3(1) ensures that the mandatory minimum penalties only apply in relation to conduct engaged in, on or after the commencement of Part 1 of Schedule 6.

215. Subitem 3(2) allows for previous convictions of conduct that would amount to a "child sexual abuse offence" regardless of whether the relevant previous conviction of the person occurred before, on or after the commencement of Part 1 of Schedule 6. This ensures that, in determining second and subsequent mandatory penalties, any previous convictions of child sexual abuse conduct are captured.

Part 2 - Technical amendments

Crimes Act 1914

Item 4 - Subsection 16(1) (definition of victim impact statement)

216. This item substitutes the reference to section 16AAA of the Crimes Act with section 16AAAA, as a result of the renumbering of the provision.

Item 5 - Section 16AAA

217. This item renumbers 16AAA of the Crimes Act as section 16AAAA.

Item 6 - Paragraph 16A(2)(h)

218. This item is a technical amendment to ensure compliance with current legislative drafting practices.

Item 7 - Saving provision

219. This item ensures that the renumbering in item 5 does not impact on the validity of any instrument in force immediately before the commencement of this item.

Part 3 - Amendments contingent on the Combatting Child Sexual Exploitation Legislation Amendment Act 2019

Division 1 - Amendments relating to the offence of possession of child-like sex dolls etc.

Crimes Act 1914

Item 8 - Subsection 16AAB(2) (after table item 10)

220. This item provides that the minimum penalty applicable for the new offence proposed in Schedule 2 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 criminalising possession of child-like sex dolls will be four years' imprisonment, in circumstances where it is a second or subsequent offence.

221. As set out in the commencement information, this item does not commence if the proposed offence does not commence.

Division 2 - Amendments relating to the offence of possessing or controlling child abuse material obtained or accessed using a carriage service

Crimes Act 1914

Item 9 - Subsection 16AAB(2) (after table item 24)

222. This item provides that the minimum penalty applicable for the new offence proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 criminalising the possession or control of child abuse material obtained or accessed using a carriage service will be four years' imprisonment, in circumstances where it is a second or subsequent child sex offence.

223. As set out in the commencement information, this item does not commence if the proposed offence does not commence.