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R v Delzotto [2021] NSWDC 325

The offender was sentenced following pleas of guilty to 1 count possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code and 1 count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Additional offences taken into account under s 16BA.  

Mandatory Minimum Sentences: Current offending is a second or subsequent child sexual abuse offence. Section 16AAB is not concerned with whether a sentence is of severity appropriate in all the circumstances. The notion of an appropriate sentence is distinct from the requirement to set a mandatory minimum sentence. There is nothing the legislation of the section which suggests, let alone requires, that it be understood as applying to minimum sentences to cases in the least culpable category of seriousness. The section says nothing about seriousness, it simply requires a sentence to be imposed of at least the specified length. Section 16AAB must be read as far as possible consistently and harmoniously with the requirement to impose a sentence that is of severity appropriate to all the circumstances.  

Mental Condition: Offender suffered major depressive disorder at time of offending. Major depressive disorder was causal and contributed to offending. Alcoholism led to disinhibition and offender crossed moral boundaries. Moral reason and judgment was impaired due to major depression and substance abuse. On balance the moral culpability has been reduced.  

Extra-Curial Punishment: Offender was subject to abuse, violence and harassment by his neighbour as a result of the offending. Offender has also been subject to abuse and threats in local community. Offender has lived in fear, particularly since publication of an article detailing offending in February 2021. Court can take into account any serious loss or detriment the offender has suffered as a result of committing the offence. This is so even when the detriment is extra curial punishment inflicted by a private person exacting revenge.  

Offender sentenced to 3 years and 3 months imprisonment with a 2 year and 2 month non-parole period.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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