Why paedophile's sentence will be slashed and govt can't intervene

A sentencing error and what appears to be the misinterpretation of territory legislation have led to Stephen Mitchell's recently unopposed appeal and forthcoming resentencing.

But his victims say the laws in question, while not technically affected by a legal "loophole", are flawed and not working as intended for survivors of historical sexual abuse.

They have called on the government to step in and help change that.

"It's a known flaw in the child sexual abuse laws and they've known about it for two years," victim Elizabeth Hall told this masthead.

"It's quite frustrating that as a victim of this type of crime, we're the ones that happen to bring it back to the attention of the Attorney-General to try and get some movement on it."

"It would not be appropriate for the ACT government to amend legislation in order to change the outcome in the Mitchell case," Attorney-General Shane Rattenbury told the victims on Wednesday in a letter.

"Once a matter has been commenced before the court, it is not appropropriate for a legislative body to change the laws which will apply to the parties."

Mr Rattenbury said any changes made would likely result in a further appeal.

"This is a topic which has been deeply considered by governments and courts," he said.

On Wednesday, the ACT Supreme Court set a new date for Mitchell to be resentenced for crimes he committed while he was a national rock climbing and gymnastics coach.

The paedophile is now likely to see his 13-year-and-five-month jail sentence significantly reduced when a new sentencing hearing takes place on August 27.

Some of Mitchell's six victims are expected to attend and read updated impact statements to the court.

The Holt man abused his position of power and preyed on his victims between 1994 and 2008, committing sexual offences against them in the ACT, NSW and overseas.

A court previously heard the man turned childhood memories into "scarred, distorted nightmares".

Mitchell's case has become a legally complex one but can be boiled down to one simple issue - Justice David Mossop applied the wrong maximum penalty when sentencing the sex offender last year.

The judge sentenced Mitchell using a 25-year maximum penalty for three counts of persistant sexual abuse of a child - in line with how modern offences are sentenced. He also capped each offence at 14 years.

"It is obviously significant for the sentencing exercise that the legislature has set a very high maximum penalty of 25 years' imprisonment for an offence against [Section 56 of the Crimes Act 1900]," he said at the time.

However, according to that legislation, Mitchell must be sentenced on "the lesser of the current maximum penalty and the 1991 maximum penalty" for the three relevant crimes due to when he committed them.

The 1991 maximum penalty for single charges of maintaining a sexual relationship with a young person, as the charge was previously known, was seven years.

Mitchell should have and will now be sentenced on a maximum penalty of seven years, not 25 or 14, based on how he was charged.

Mr Rattenbury told ABC Radio on Tuesday the issue being characterised as a legal "loophole" was incorrect.

"I don't think there's a glitch in the law," he said.

Mr Rattenbury said the ACT had implemented royal commission recommendations made in 2017 aiming to modernise consequences of historical sexual abuse crimes.

However, a 2022 ACT Court of Appeal decision "said the approach taken in that legislation was not sound".

"Rather than it being a legislative loophole, what the Court of Appeal identified is an important principle of criminal law, which is that no one should be punished more severely now than was possible at the time they committed the offence," Mr Rattenbury said.

"Basically, you can't retrospectively increase the penalty. That same principle is enshrined in the Human Rights Act."

In a letter sent to the victims last month, former territory top prosecutor Anthony Williamson SC said the only way to prevent Mitchell's appeal would be to suggest that Court of Appeal decision should be overturned.

After seeking outside counsel, the prosecuting office decided there was no reasonable prospect of successfully launching that challenge.

On Tuesday, the Attorney-General said the government was reconsidering the issue of retrospective sentencing.

"I have directed the Justice and Community Safety Directorate to undertake further consultation in light of the issues that have been raised and they will talk with key justice stakeholders," he said.

ACT Opposition leader Elizabeth Lee has said she would support legislative amendments.

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Mitchell's solicitor, Peter Woodhouse, said Justice Mossop had simply made an error by applying the incorrect maximum penalty.

"The aim of the appeal and resentence is to fix that error," the lawyer said.

"This is not a loophole or some legal trick that we are trying to pull off which needs the intervention of the government to prevent it."

The offence of persistent sexual abuse of a child, or maintaining a sexual relationship with a child, is intended to capture sexual abuses committed over a protracted period of time.

"That's supposed to help victims and judges look at the entirety so they can sentence properly and appropriately," victim Odette Visser said.

However, Ms Visser said the rolled up charge, when applied to historical offences, offered a severely underwhelming maximum penalty which came as a shock to the victims when the appeal was revealed.

"So, it's a law that is functioning in a way it wasn't intended," she said.

"Because I cannot believe that after a royal commission into sexual abuse that law makers intended for the most serious possible crime you can commit against a child to be sentenced at seven years maximum."

Ms Visser said she accepted it was likely too late for any changes to affect Mitchell's case but she refused to let it happen to others.

"It shouldn't continually fall on victims to front up, be dragged through the courts and ask for it to be fixed. This has to be the last time it happens," she said.

Ms Hall said the legislation didn't need a government review or an inquiry. "It needs urgent law reform to amend this section so it can operate as intended," she said.

Mitchell is set to be sentenced in August.