Yes, it is possible, but only in a few specified ways, and not by the method most people expect.
Since 2020, Commonwealth law has required courts to impose minimum terms of imprisonment for certain child sexual abuse offences. For someone being sentenced for a second offence, that minimum is often four years. The natural question is whether four years is simply fixed. The position is more subtle. Four years is close to a floor, but it is not a ceiling, and the practical effect of that distinction is not always understood.
This article sets out how the regime works, what the High Court has said about it, and when a sentence below the minimum is available.
Where the four years comes from
The provisions sit in Part IB of the Crimes Act 1914 (Cth).
Section 16AAA sets minimum sentences for a list of Commonwealth child sexual abuse offences, and applies even to a first offence. Section 16AAB sets minimums for a second or subsequent offence, meaning a person convicted of a listed Commonwealth child sexual abuse offence who has, at an earlier sitting, been convicted previously of a child sexual abuse offence. That earlier conviction can be under State, Territory or Commonwealth law. Section 16AAC contains the exceptions and reductions.
The minimums are not all four years. They range from one year to seven, depending on the offence. Four years is the common minimum for the main carriage service offences that arise most often in practice, including using a carriage service for child abuse material (s 474.22), possessing or controlling child abuse material obtained or accessed using a carriage service (s 474.22A), procuring (s 474.26) and grooming (ss 474.27 and 474.27AA) under the Criminal Code (Cth).
Two threshold points matter. The scheme applies only to conduct engaged in on or after 23 June 2020, and there is a genuine question in some cases about which element counts as the relevant conduct. The minimums also do not apply to offenders who were under 18 at the time of the offence.
The key case: Hurt v The King
How the minimum operates was settled by the High Court in Hurt v The King; Delzotto v The King [2024] HCA 8.
The Court held unanimously that a mandatory minimum performs two functions at the same time. It restricts the sentencing power, so that, subject to the exceptions, the court cannot go below the minimum. It also works as a yardstick, the statutory counterpart of the maximum penalty, representing Parliament’s view of the appropriate sentence for the least serious case that still warrants imprisonment.
The second function is the one that causes confusion. Because the minimum fixes the bottom of the range for the least serious case, more serious offending starts above the minimum and is assessed upwards from there. The four years is therefore not a figure to be discounted from. It marks the appropriate sentence for the least serious case, and it tends to lift sentences generally. The High Court accepted that this was the intended effect, since the reforms were designed to increase both the number of offenders imprisoned and the length of their sentences.
Hurt also dealt with the transitional question. For the possession offence in s 474.22A, the relevant conduct is the act of possession. The requirement that the material was obtained or accessed using a carriage service is a jurisdictional circumstance rather than conduct. The regime therefore applies where the possession occurred on or after 23 June 2020, even if the material was obtained earlier.
How a sentence below four years becomes available
There is one lawful route, in section 16AAC. A court may impose a sentence below the minimum only where it is appropriate to reduce the sentence to reflect a plea of guilty, or cooperation with law enforcement in the investigation, or both.
A plea of guilty allows a reduction of up to 25 per cent of the minimum. Cooperation allows a further reduction of up to 25 per cent. Where both apply, the combined reduction can be up to 50 per cent.
For a four year minimum, that produces two floors. A plea of guilty on its own cannot bring the sentence below three years. A plea combined with genuine cooperation cannot bring it below two years. The High Court confirmed in Hurt (at [103]-[104]) that these discounts can operate below the minimum, and that allowing them to do so is consistent with the yardstick rather than contrary to it.
The discount applies to the starting point, not to the minimum
This is the point most often misunderstood. The plea and cooperation discounts are not simply a percentage taken off four years. In McGregor v R [2024] NSWCCA 200, a five judge bench of the New South Wales Court of Criminal Appeal held that the discount is applied to the starting point, being the sentence the court would otherwise impose after assessing the objective seriousness of the offending against the yardstick. The only limit is that the final sentence must not fall below 75 per cent of the minimum where one factor applies, or 50 per cent where both apply.
This matters in practice. For a serious repeat offender whose starting point is well above four years, a full plea discount will often still leave a head sentence above four years. A result below four years is realistic mainly for cases at or near the least serious end. In other cases the benefit is found not on the head sentence but on the non-parole period, which is set separately and is usually lower. For many people the non-parole period is the number that matters, because it determines when release becomes possible.
A court may also impose an aggregate sentence across several counts even where one count carries a mandatory minimum. The High Court confirmed this in The King v McGregor [2026] HCA 3.
Avoiding prison altogether
For most people asking this question, that outcome is not realistic. For these offences, a sentence of imprisonment carries a presumption of actual custody. Immediate release on recognizance is available only in exceptional circumstances (s 20(1)(b)(ii) and (iii) of the Crimes Act 1914). That is a demanding test, and a prior conviction of the kind that triggers the second offence regime will usually put it beyond reach.
Practical points
Four years is the appropriate sentence for the least serious case, not a cap to plead down from. In most cases the yardstick lifts the starting point above it.
A guilty plea is the most valuable step available, and is often the only thing that can bring a sentence below the minimum. It is worth the most when entered early.
Cooperation with law enforcement provides a separate reduction of up to a further 25 per cent.
The discount is calculated on the starting point, and cannot reduce the final sentence below 75 per cent, or 50 per cent, of the minimum.
The non-parole period is often where any real benefit is found for serious repeat offending, even where the head sentence stays above four years.
Timing can be decisive. Whether the regime applies, and whether earlier conduct is caught, can depend on close questions about dates and about which element counts as conduct.
The regime is deliberately severe, and the High Court has made clear that the policy behind it is a matter for Parliament rather than the courts. There is still useful work to be done within it, in assessing objective seriousness, advising on the plea and any cooperation, and considering how the sentence is structured. Where a person falls within the framework is often not obvious, and preparation done early tends to affect the result.
Always get early legal advice for these matters for your specific matters.