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District Court 25 June 2021

R v Delzotto

[2021] NSWDC 325

Sexual offences
CRIMINAL LAW SENTENCING FOR COMMONWEALTH OFFENCES CONSTRUCTION OF S 16AAB AND 16AAC AUSTRALIA FIRST M ORAL CULPABILITY GENERAL AND PERSONAL DETERRENCE

Citation: R v Delzotto [2021] NSWDC 325
Court: District Court of New South Wales
Date: 25 June 2021
Judge: Grant DCJ

Background

The offender pleaded guilty to two Commonwealth offences: possessing or controlling child abuse material obtained or accessed using a carriage service (s 474.22A(1) of the Criminal Code (Cth), carrying a maximum of 15 years and a minimum of four years), and using a carriage service to access child abuse material (s 474.22(1) of the Criminal Code (Cth), carrying a maximum of 15 years). Two further offences of the same general character were admitted and taken into account on sentencing.

Separately, just days before this sentence was handed down, the offender had been convicted in Queensland of seven counts of indecent treatment of an eight-year-old boy with significant disabilities, for which he received three and a half years imprisonment with a 16-month non-parole period. This meant the current Commonwealth offending constituted a "second or subsequent" child sexual abuse offence within the meaning of the Crimes Act 1914 (Cth).

The critical procedural and substantive issue was how to apply the mandatory minimum sentencing regime introduced in June 2020 by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020. No court had previously considered the construction of ss 16AAB and 16AAC of the Crimes Act in this context.

  • Whether ss 16AAB and 16AAC of the Crimes Act 1914 (Cth) applied to the offender as a second or subsequent child sexual abuse offender, and how those provisions should be construed.
  • Whether the mandatory minimum sentence of four years operates as a floor reserved only for the least serious category of offending, with the sentencing discretion operating above it, or whether it functions differently.
  • Whether the percentage reductions for a guilty plea and cooperation with authorities (under s 16AAC) were available where the offending was assessed as falling above the minimum threshold.
  • How to weigh the relevant sentencing factors, including general and personal deterrence, the offender's rehabilitation, and extra-curial punishment he had suffered.

Decision

Grant DCJ noted that this was the first time any Australian court had considered the construction of ss 16AAB and 16AAC. The Crown relied on the Western Australian Court of Appeal's approach in Bahar v The Queen (2011), which held that a statutory minimum operates as the floor for the least serious category of offending, with the sentencing discretion ranging upward toward the maximum. The offender's counsel argued that Bahar was not binding, as it concerned a different Act (the Migration Act 1958 (Cth)), and that the provisions should not be read as reserving the mandatory minimum solely for the least serious cases.

The Court accepted the Crown's broad framework: the mandatory minimum of four years marks the bottom of the sentencing range for the relevant offence, and sentences for more serious offending must fall above it. The reductions available under s 16AAC for a guilty plea and cooperation apply only where the penalty imposed is the mandatory minimum itself. Because the Court assessed the offending as falling in the mid-to-high range of objective seriousness, a sentence above the minimum was appropriate, and the s 16AAC reductions did not mechanically apply in the usual way.

Applying the relevant sentencing factors, the Court gave paramount weight to general deterrence, given the public interest in protecting children. The Court found personal deterrence was less significant, as the offender had demonstrated genuine insight and commitment to rehabilitation. The Court also took into account extra-curial punishment the offender had suffered, including an incident in which a neighbour damaged his vehicles and drove him from his home community.

The Court imposed an aggregate sentence, with indicative terms of 18 months for the s 474.22(1) offence and two years and nine months for the s 474.22A(1) offence. A 30% reduction was applied from the four-year minimum to account for the plea and cooperation, yielding an aggregate sentence of three years and three months.

Orders Made

  • Aggregate sentence of three years and three months imprisonment, commencing 26 June 2021 and expiring 22 September 2024.
  • Non-parole period of two years and two months, with eligibility for parole on 22 August 2023.
  • Credit of two days for pre-sentence custody.
  • Forfeiture order under s 23ZD of the Crimes Act 1914 (Cth) in respect of: a Toshiba hard drive, a Lenovo laptop computer, a Samsung tablet, and a Samsung Galaxy 8 mobile phone.

Key Takeaways

  • The District Court held, for the first time in Australia, that the mandatory minimum sentencing regime in ss 16AAB and 16AAC of the Crimes Act 1914 (Cth) sets the floor of the sentencing range for second or subsequent Commonwealth child sexual abuse offences, with the sentencing discretion operating upward from that point.
  • A prior conviction for a State or Territory registrable child sex offence is sufficient to engage the "second offence" provisions in s 16AAB, even where that earlier offence predates the 2020 amendments.
  • Under the regime as construed, the percentage reductions for a guilty plea and cooperation under s 16AAC are available only where the court has determined that the mandatory minimum is the appropriate sentence before those reductions are applied. Where the offending is assessed as more serious, the mitigating factors are absorbed into the broader instinctive synthesis above the minimum.
  • Extra-curial punishment inflicted by a private person, even where it amounts to deliberate revenge, remains a factor a sentencing court may take into account in mitigation, consistent with R v Daetz and Wilson.
  • General deterrence is the paramount sentencing consideration for offences involving child abuse material accessed via carriage services, given the public interest in child protection and the nexus between demand for such material and ongoing abuse of children.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.19(1), 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 16BA, 23ZD
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Migration Act 1958 (Cth)
- Criminal Code 1899 (Qld), s 210
- Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)

Cases:
- Bahar v The Queen (2011) 45 WAR 100
- DPP (Commonwealth) v Beattie [2017] NSWCCA 301
- Magaming v The Queen (2013) 252 CLR 381
- McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646
- R v Daetz and Wilson 139 A Crim R 398
- Karim & Ors v The Queen (2013) 83 NSWLR 268
- Balog v ICAC (1990) 169 CLR 625