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11
Court of Criminal Appeal 6 June 2022

R v Delzotto

[2022] NSWCCA 117

Also reported as (2022) 298 A Crim R 483
Sexual offences

Citation: R v Delzotto [2022] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 6 June 2022
Judges: Beech-Jones CJ at CL; R A Hulme J; Adamson J

Background

The respondent was convicted in the District Court of several Commonwealth offences involving child abuse material accessed and possessed via a carriage service. The sentencing judge imposed an aggregate sentence of 3 years and 3 months' imprisonment with a non-parole period of 2 years and 2 months.

The principal offence (sequence 5) was possessing child abuse material in the form of data accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth). That offence carried a statutory mandatory minimum sentence of 4 years' imprisonment. The sentencing judge imposed an indicative sentence of 2 years and 9 months for that sequence, reducing it below the mandatory minimum by applying discounts for a guilty plea and cooperation with law enforcement under s 16AAC of the Crimes Act 1914 (Cth).

The Commonwealth Director of Public Prosecutions appealed, arguing that the sentencing judge had failed to apply the correct approach to mandatory minimum sentences and that the overall sentences were manifestly inadequate.

  • Whether the sentencing judge erred by failing to apply the "Bahar approach," under which a statutory mandatory minimum sentence is treated as the starting point for the least serious category of offending, with more serious offending attracting a higher sentence before any discounts are applied
  • Whether the mandatory minimum in s 474.22A(1) applied to the respondent's offence, given questions about the timing of the "relevant conduct" and whether the offence qualified as a registrable child sex offence under s 16AAB of the Crimes Act 1914 (Cth)
  • Whether the indicative sentence for sequence 5 was manifestly inadequate
  • Whether the discounts for guilty plea and cooperation under s 16AAC(2) and (3) were available only where the offending fell within the lowest category of seriousness

Decision

The Court of Criminal Appeal (Adamson J, with Beech-Jones CJ at CL and Hulme J agreeing) found that the sentencing judge had erred by treating the mandatory minimum of 4 years as both the starting point and the endpoint for sequence 5, without first assessing the objective seriousness of the offending and positioning it within the full sentencing range. The Bahar approach, as applied in NSW through Karim v The Queen, requires the sentencing court to use the mandatory minimum as the floor for the least serious offending, and to sentence more seriously for more culpable conduct, before considering any discounts.

On the timing issue, the Court resolved questions about when the "relevant conduct" under s 474.22A had to occur for s 16AAB to apply, and whether the offence was a registrable child sex offence at the time it was committed. Having resolved those questions in favour of the mandatory minimum applying, the Court found the original indicative sentence below the mandatory minimum was erroneous.

The Court assessed the objective seriousness of sequence 5 as above the least serious category, and set a pre-discount starting point of 6 years' imprisonment. After applying a 25% discount for the guilty plea and 5% for cooperation with law enforcement, the indicative sentence became 4 years and 2 months. For sequence 8 (which took into account sequences 7 and 10), the Court applied a pre-discount term of 18 months, reduced by 30% to one year.

Beech-Jones CJ at CL also addressed a proposed but unpressed argument that s 16AAC discounts are available only where the sentencing court's starting point is exactly at the mandatory minimum. His Honour rejected that construction, noting it was inconsistent with Muldrock v The Queen, denied the principle of instinctive synthesis, and would produce arbitrary disparities incompatible with equal justice.

Orders Made

  • Appeal allowed
  • Sentence imposed by Grant DCJ on 25 June 2021 set aside
  • Aggregate sentence of 4 years and 6 months' imprisonment imposed, commencing 23 June 2021 and expiring 22 December 2025
  • Non-parole period of 3 years, commencing 23 June 2021 and expiring 22 June 2024
  • Indicative sentence for sequence 5: 4 years and 2 months' imprisonment
  • Indicative sentence for sequence 8 (taking into account sequences 7 and 10): 1 year's imprisonment

Key Takeaways

  • The Bahar approach applies in NSW when sentencing for offences carrying a statutory mandatory minimum: the minimum is the sentence for the least serious category of offending, and the sentencing court must assess where the actual offending sits within the full range before applying any discounts.
  • Where a sentencing judge treats the mandatory minimum as both a floor and a ceiling without applying the Bahar approach, that constitutes a legal error justifying a Crown appeal.
  • Under s 16AAC of the Crimes Act 1914 (Cth), discounts for guilty pleas and cooperation with law enforcement are not confined to cases where the court's pre-discount assessment places the offending in the lowest category of seriousness; that construction was rejected as inconsistent with instinctive synthesis and the principle of equal justice.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for Commonwealth offences remains available pursuant to the existing authority in DPP (Cth) v Beattie, notwithstanding doubt expressed by a differently constituted bench in Patel v R [2022] NSWCCA 93.
  • Whether conduct qualifies as a "State or Territory registrable child sex offence" for the purposes of s 16AAB turns on whether the offence was registrable at the time it was committed, not at the time of sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.19, 474.22, 474.22A
- Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5D
- Acts Interpretation Act 1901 (Cth), s 15AB
- Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Key Cases:
- Bahar v R (2011) 45 WAR 100; [2011] WASCA 249
- Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Patel v R [2022] NSWCCA 93
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- DPP (NSW) v Burton [2020] NSWCCA 54
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40