A recidivist Canberra child sex offender has won the rare right to a High Court appeal, with his lawyers convincing the nation's top judges to examine the controversial issue of mandatory minimum sentences.
Raymond James Choi Hurt, aged in his mid-30s, is currently behind bars serving his second sentence for child abuse material offences.
As a repeat offender in relation to the possession of child abuse material, Hurt found himself subject to a mandatory minimum jail sentence of four years under federal laws passed in 2020.
That is precisely what Justice David Mossop imposed on that charge when he sentenced Hurt in the ACT Supreme Court in 2021.
Justice Mossop handed Hurt a total term of five years and three months, which also incorporated time for two other child abuse material crimes and a good behaviour order breach.
The judge set a non-parole period that was due to expire late last month.
While Hurt and the Commonwealth Director of Public Prosecutions agreed the mandatory minimum sentencing provisions were engaged in his case, they were at odds on how Justice Mossop should apply them.
Justice Mossop's ultimate approach left both sides feeling aggrieved, prompting each to appeal.
In the ACT Court of Appeal last year, both parties alleged the judge had made a distinct error relating to the provisions.
Hurt also argued his sentence was manifestly excessive, while the Crown contended it was inadequate.
Justice Geoffrey Kennett and Justice Darryl Rangiah - a 2-1 majority of the appeal court - upheld the Crown's appeal in relation to an error of principle and re-sentenced Hurt.
They extended his total jail term by just three days, but boosted the non-parole period by one month.
Hurt subsequently applied to the High Court for special leave to challenge the decision.
In written submissions, his lead counsel, Jon White SC, argued two competing approaches to mandatory minimum sentencing had emerged in Australia and the High Court should look to resolve the controversy.
One approach, derived from a Northern Territory case, was for a court to determine the appropriate sentence and, if it turned out to be below the mandatory minimum term, increase it as required.
That approach was rejected in a subsequent decision, from Western Australia, which said courts should reserve the mandatory minimum sentence for the lowest category of offending.
While the latter approach has been widely applied, there has been doubt about its correctness and it has been criticised for, as one NSW judge has put it, "artificially distorting sentences upwards".
Mr White noted Justice Mossop had "engaged in a lengthy critique" of the reasoning in the Western Australian case before reaching the "unsatisfying" conclusion that he had to apply it in Hurt's matter.
He ultimately argued the dissenting judge in the ACT Court of Appeal, Justice Chrissa Loukas-Karlsson, had been right when she described the approach taken in the Western Australian case as "plainly wrong".
Hurt's application for special leave was heard in the High Court on Friday alongside that of Enrico Robert Charles Delzotto, a convicted NSW child abuse material offender whose case raised similar issues.
Neither Mr White nor Delzotto's barrister, Richard Wilson SC, were required to make oral submissions.
That was the case because Sophie Callan SC, representing the Commonwealth Director of Public Prosecutions, failed to convince three High Court judges special leave to appeal should be refused.
Justice Stephen Gageler, announcing the court's decision, indicated the appeal hearing would likely take one day. It is yet to be listed.
The High Court refuses the overwhelming majority of applications for special leave to appeal.
One statistical analysis, conducted by Clayton Utz in 2021, examined nearly nine years' worth of applications and found an average of less than 12 per cent were granted annually.
