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R v Delzotto [2022] NSWCCA 117

The offender was sentenced following a conviction of 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code (Sequence 5), 2 counts of using a carriage service for child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code (Sequences 8 and 10) and 1 count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code (Sequence 7). Original aggregate sentence imposed 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months. The Crown appealed on grounds that the sentencing judge erred in sentencing for Sequence 5 by imposing a sentence that did not reflect the sentencing principle that the mandatory minimum head sentence of 4 years imprisonment was for the least serious category of offending (as set out in Bahar v The Queen and Karim v The Queen), that the sentencing judge erred in reducing the sentence for Sequence 5 to reflect the offender’s plea of guilty and cooperation and that the total effective sentence imposed is manifestly inadequate.

Minimum Sentences: Sentencing judge did not follow the Bahar approach on the basis that it was not binding. Offender submitted there was a distinction between prescriptions of a minimum penalty which serve to indicate the view of Parliament as to the seriousness of a particular offence (ss 233A and 233C of the Migration Act) and prescriptions of a minimum penalty which depend on the circumstances of the offender (s 16AAB applying to s 474.22A(1)). Offender submitted that the Bahar approach only applied to the former. The differences between ss 233C and 236B of the Migration Act on the one hand and ss 16AABB and 474.22A on the other are formal and reflect different drafting styles but are nonetheless substantially the same. Nothing in the legislative provisions or extrinsic material indicate the latter provisions were intended to have any materially different effect from the provisions in the Migration Act. The extrinsic material indicates the legislature considered that sentences imposed for an offence under s 474.22A ought generally to be increased (the effect of the Bahar approach) rather than that the increase be confined to less serious offences (the effect of the Pot approach). There is no relevant distinction between the provisions in the Migration Act which were considered in Bahar and the provisions at issue which would warrant a different conclusion about the applicability of the Bahar approach in the present case.

Manifest Inadequacy: The sentence for sequence 5, but for discounts made pursuant to s 16AAC, would have been 4 years. A sentence of 4 years for sequence 5 would only be appropriate on the Bahar approach for a case where the objective seriousness was in the lowest category. While there was a relatively strong subjective case for the offender, the objective seriousness of sequence 5 was found to be mid-range. Despite there being substantial subjective factors, an indicative sentence of 4 years does not adequately reflect objectiveness seriousness of the sequence 5 offence. The indicative sentence for sequence 8, disregarding discounts, of 2 years and 2 months is not inadequate given the overlap with sequence 5 and relatively small number of files involved. Aggregate sentence is manifestly inadequate.

Leave to appeal granted. Appeal allowed. Original sentence set aside. Offender resentenced to 4 years and 6 months imprisonment commencing on 23 June 2021 with a non-parole period of 3 years.
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