The offender was sentenced following a plea of guilty to 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Original sentence imposed 4 years imprisonment with a non-parole period of 2 years and 8 months. Offender appealed on the ground that the sentencing judge erred in not discounting the head sentence below the minimum sentence.
Minimum Sentence: Section 16AAB of the Crimes Act applied so as to impose a mandatory minimum head sentence of 4 years imprisonment. By operation of s 16AAC, the discounts to be imposed on offender’s head sentence could not exceed 2 years. Sentencing judge determined that the appropriate undiscounted head sentence was 4 years and 6 months. Sentencing judge went on to say that ‘[offender] is entitled to a combined discount of 30% … [h]owever, in applying that discount that would see the head sentence fall below the mandatory minimum. I could only allow that if the penalty I impose is the minimum penalty … I am unable to give full effect to the discount to which the offender is entitled.’ Sentencing proceedings occurred before the judgment in Delzotto was delivered. Because of Delzotto, the sentencing judge was not obliged to impose a sentence of 4 years imprisonment.
Nature and Circumstances: The charge was a rolled-up count involving more than 1 instance of offending. Accordingly, the criminality was greater than one instance of offending. Offending occurred over a discrete period of time between 12 and 19 July 2020 but was not isolated. Actual children were used in the creation of the material including a number that were prepubescent. The material included prepubescent female children engaged in sexual acts with adults.
Rehabilitation: Offender is currently working in the kitchen, has completed a behavioural change program (‘EQUIPS’), and has undertaken the Real Understanding of Self-Help program (‘RUSH’). Offender has also signed up for the Medium Intensity Sex Offender Program. Offender states that they were ashamed for what they had done and realised the abhorrent nature of their actions to everyone involved.
Leave to appeal granted. Appeal allowed. Offender resentenced to 3 years and 1 month imprisonment with a non-parole period of 2 years and 4 months.
