R v Delzotto

[2021] NSWDC 325

District Court

New South Wales

Medium Neutral Citation:

R v Delzotto [2021] NSWDC 325

Hearing dates:

08 June 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

See paragraph [72] for sentence imposed.

Catchwords:

Criminal law – sentencing for Commonwealth offences - possessing or controlling child abuse material obtained or accessed using a carriage service - use carriage service to access child abuse material - construction of s 16AAB and 16AAC- Australia first- moral culpability- general and personal deterrence – extra curial punishment - minimum sentencing regime

Legislation Cited:

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Queensland)

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1914 (Commonwealth)

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020

Criminal Code 1899 (Queensland)

Criminal Code 1995 (Commonwealth)

Migration Act 1958

Cases Cited:

Bahar v The Queen (2011) 45 WAR 100

Balog v ICAC (1990) 169 CLR 625

DPP(Commonwealth) v Beattie [2017] NSWCCA 301

Dui Kol v R [2015] NSW CCA 150

Karim & Ors v The Queen (2013) 83 NSWLR 268

Magaming v The Queen (2013) 252 CLR 381

McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646

Minehan v R 2001 A Crim R 243; [2010] NSWCCA 140

R v Daetz and Wilson 139 A Crim R 398

R v Pot (Unreported, Northern Territory Supreme Court 18 January 2011)

R v Young (1999) 46 NSWLR 681

Category:

Sentence

Parties:

Regina (Crown)
Delzotto (Offender)

Representation:

Counsel:
Ms Breckweg (CDPP)
Mr Boncardo (Offender)

Solicitors:
Ms Snobar (CDPP)
Mr Hanke (Offender)

File Number(s):

2020/00194467

Publication restriction:

Nil.

Judgment

INTRODUCTION

1. Enrico Delzotto has pleaded guilty to two counts. They are:

Sequence 5; possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Commonwealth), maximum penalty of 15 years, minimum penalty of four years;

Sequence 8; use carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Commonwealth), maximum penalty of 15 years.

2. The offender additionally admits the following offences which are to be taken into account in sentencing on sequence 8 in accordance with s 16BA of the Crimes Act 1914 (Commonwealth).

3. Sequence 7; on 20 September 2019 use carriage service to access child pornography material, contrary to s 474.19(1) Criminal Code (Commonwealth).

4. Sequence 10; between 27 June 2020 and 1 July 2020 use a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Commonwealth). The offences taken into account may increase the penalty otherwise appropriate for the offence for which the offender has been convicted by giving greater weight to the need for specific deterrence and the community’s entitlement to extract retribution for serious offences.

5. Taking the other offences into account is a relevant factor to be considered in the instinctive synthesis of sentencing. He was committed for sentence on 2 February 2021. On 19 June 2021 Mr Delzotto was convicted of seven counts of indecent treatment of an eight year old boy, contrary to s 2010 of the Criminal Code 1899 (Queensland) by the District Court in Queensland. He had been the carer of an eight year old boy who had significant behavioural, learning and medical disabilities. He was autistic and suffering from Asperger’s Syndrome. Mr Delzotto was sentenced to three and a half years imprisonment with a non-parole period of 16 months.

6. The current offending is a second or subsequent child sexual abuse offence, and accordingly the Court needs to consider the construction of s 16AAB and s 16AAC of the Crimes Act, and the minimum sentencing regime there set out. The construction of s 16AAB and s 16AAC and the minimum sentencing regime they create for second or subsequent child sexual offences has not been considered by any court before.

SECTION 16AAB AND S 16AAC

7. In June 2020 a new sentencing regime was introduced into the Crimes Act 1914: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020.

8. The amendment requires mandatory minimum head sentences to be imposed when sentencing an offender for a Commonwealth sexual abuse offence where the offence is a “serious offence” (s 16AAA) or a second offence (s 16AAB).

9. Section 16 AAB(1) provides,

“This section applies in respect of a person if:

(a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence); and

(b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.”

10. Commonwealth child sexual abuse offences defined by s 3 of the Crimes Act include an offence contrary to s 474.24A. The phrase “child sexual abuse offence” includes a State or Territory registrable child sex offence. Mr Boncardo in his helpful written submissions dated 7 June 2021, conceded that the offence committed by Mr Delzotto in 2001 were reportable offences in relation to which he was a person whose name was required to be entered on the Child Protection Register pursuant to s 68(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Queensland).

11. Section 16AAB(2) provides,

“Subject to s 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the Court must impose for the current offence a sentence of at least the period specified in column 2 of that item.”

12. Item 24 of s 16AAB(2) provides for a minimum maximum penalty of four years for an offence contrary to s 474.22(1) of the Criminal Code. This does not apply to count 2 (sequence 8) as s 2 to the amending Act provided that schedule 6 of that Act was to commence operation on 23 June 2020. Mr Delzotto’s s 474.22(1) offence spanned the period from 5 October 2019 to 3 March 2020. The explanatory memorandum accompanying the proposed legislation at cl 40 says,

“The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the Courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of the offences and ensure that the community is protected from child sex offences. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further sexual abuse of children.”

13. It is against this backdrop that I consider the submissions of the parties.

CROWN SUBMISSIONS

14. The Crown relies upon Bahar v The Queen (2011) 45 WAR 100. The Court held that where there is a minimum mandatory sentence the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offender falls. Those factors include:

1. The statutory minimum like the statutory maximum is a legislative discretion as to the seriousness of the offence.

2. The statutory minimum and maximum penalties dictate the seriousness of the offence for the purposes of s 16A of the Crimes Act. They are the floor and ceiling respectively within which the judge has a sentencing discretion to which the general principles are to be applied.

3. The minimum penalty is for the least serious category of offending and the maximum penalty for offences in the worst category, taking into account all relevant factors, namely s 16A Crimes Act 1914.

PRINCIPLES AND RELEVANT COMMON LAW PRINCIPLES

15. Ms Breckweg, counsel for the Crown, in her helpful written submissions dated 2 June 2021, submitted s 16AAC(2) and (3) provide for specific reductions below the mandatory minimum term that can take into account an offender’s plea of guilty and any assistance to authorities,

“The reductions only apply if the penalty imposed by the Court is the mandatory minimum penalty specified for the offence; that is, that the offending is classified as being in the least serious category of offending of a type being sentenced.”

16. She submits that the offending falls in the mid to high range of objective seriousness. She submits that the appropriate head sentence should fall within a level above the mandatory minimum period of four years imprisonment. She submits that in these circumstances the percentage reductions for cooperation and/or plea of guilty (leading to a sentence below the mandatory minimum) are irrelevant because the available sentencing guidepost for the present offending more than adequately allows for the impact of mitigatory factors, including a plea of guilty and cooperation to be properly taken into account in determining the ultimate sentence.

17. In short, the Crown submits that the reductions only apply if the offending is in the least serious category of offending. The mandatory minimum sentence of four years imprisonment is reserved for those offences that fall in the least serious category of offending. In the alternative the offending is of such character that even with applicable discounts the sentence would exceed the minimum sentence of four years imprisonment.

OFFENDER’S SUBMISSIONS

18. It is submitted on behalf of the offender that I should not follow Bahar. Bahar was dealing with people-smuggling offences contrary to the Migration Act 1958 (Commonwealth) which imposed mandatory minimum sentences. The construction of these provisions of the Migration Act by intermediate appellant courts is not binding on this Court as it relates to the construction of a different Act: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40]. Further, there are important differences between s 16AAB and the minimum sentence provisions of the Migration Act.

19. Mr Boncardo submits that properly construed s 16AAB does not require that the statutory minimum sentence operate as a predetermined basepoint from which the Court determines what a sentence of severity appropriate in all the circumstances of the offence is. It does not reserve the mandatory minimum sentence for cases only at the bottom of the spectrum of seriousness for the relevant offending, nor does it say anything about what a sentence appropriate in all the circumstances of the offence is.

CONSIDERATION

20. Section 16A(1) mandates that the Court must impose a sentence of severity appropriate in all the circumstances of the offence. A sentence of a severity appropriate in all the circumstances must have regard to all the mandatory considerations set out in s 16A(2). Common law sentencing principles inform and give content to the imposition of a sentence of a severity appropriate in all the circumstances of the offence for the purposes of s 16A(1). Unlike s 16A(1) s 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.

21. Section 16AAB, and the relevant table, establishes that if a person is subject to the offences in column 1 the Court must impose a sentence of imprisonment of at least the period specified in column 2 subject to any reductions contained in s 16AAC. The explanatory memoranda at cl 195 states, “Mandatory minimum penalties do not limit judicial discretion of courts to set the non-parole period”. It goes on to say at cl 196,

“This schedule does not impact the current requirement for the courts to consider all the circumstances, including the matters listed in s 16A of the Crimes Act, when fixing a non-parole period. This allows the Courts to take into account individual circumstances and any mitigating factors in considering the most suitable non-parole period”.

22. Clause 196 is consistent with the principles of individualised justice and the Court needs to take into account the matters listed in s 16A when fixing a non‑parole period.

23. Although the legislation was designed to “introduce a mandatory minimum sentencing scheme to apply to the Commonwealth Child Sex Offenders”: explanatory memorandum cl 3. There are reducing principles in s 16AAC. The explanatory memorandum at cl 210 says,

“...the courts are able to exercise a degree of discretion when imposing the minimum penalties”.

24. Section 16AAC(2) permits the Court to impose a sentence of imprisonment of less than the minimum penalties specified in column 2 of an item of a table in s 16AAA or subsection 16AAB(2): explanatory memorandum cl 211.

25. The Court can take into account the plea of guilty s 16A(2)(g), and cooperation with law enforcement agencies s 16A(2)(h). Section 16AAC(3)(a) allows for a reduction of up to 25% of the minimum penalty by reason of the plea of guilty.

26. Section 16AAC(3)(b) allows for a reduction of up to 25% for the minimum penalty by reason of law enforcement cooperation. Section 16AAC(3)(c) allows for a reduction of up to 50% taking into account the plea of guilty and law enforcement cooperation.

27. The Crown relies upon Bahar v The Queen where it was held that the statutory language used in s 233C of the Migration Act 1958 makes it unequivocally clear that the Commonwealth parliament intended to deprive a judicial officer sentencing an offender for breach of s 232A of the Act of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years. The statutory minimum and statutory maximum penalties provided for in s 232A of the Act are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which general sentencing principles are to be applied. The Crown submits that Bahar makes it clear that where there is a minimum mandatory sentence of imprisonment the question for the sentencing judge is where, having regard to all the relevant sentencing factors, the offending falls in the range between the least serious category of offending for which the minimum is appropriate, and the worst category of offending for which the maximum is appropriate. The Crown submits that I can only impose the minimum term if I am satisfied that the offending falls within the least serious category.

28. The legislation under consideration by the Court of Appeal of the Supreme Court of Western Australia is very different to the legislation that I have been requested to interpret. Section 233C provides,

“(1) This section applies if a person is convicted of an offence under s 232A...unless it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

(2)   The Court must impose a sentence of imprisonment of at least:

(a) eight years, if the conviction is for a repeat offence; or

(b) five years, in any other case.

(3)   The Court must also set a non-parole period of at least:

(a) five years, if the conviction is for a repeat offence; or

(b) three years, in any other case.”

29. The legislation provides floor and ceiling penalties within which a sentencing judge has a sentencing discretion. However unlike the legislation I am asked to interpret there is no s 16AAC(3)(a), (b) or (c) which allows for a reduction of up to 50% taking into account the plea of guilty and law enforcement cooperation. Those provisions are absent from the Migration Act considered by the Court of Appeal. The Crown submits that the minimum sentence may only be applied to cases in the least culpable category of seriousness. In my view there is nothing in 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 subject to s 16AAC(3)(a) to (c). The Crown’s proposed construction of s 16AAB cannot operate harmoniously or consistently with the discretionary reductions for assistance and guilty pleas under s 16AAC.

30. The legislation is different to that described by McClure P in Bahar where her Honour concluded at [54] that the general sentencing principles in pt 1B applied, but between the maximum and mandatory minimum sentences, as the ceiling and floor of punishing. This interpretive approach was followed in Karim & Ors v The Queen (2013) 83 NSWLR 268. The decision of a full bench of the Court of Criminal Appeal has been subject to criticism by Adams and McCallum JJ in Dui Kol v R [2015] NSW CCA 150. In R v Pot (Unreported, Northern Territory Supreme Court 18 January 2011) Riley CJ was of the view that,

“The section provides the minimum sentence that can be imposed in the identified circumstances but does not go so far as to reserve that mandatory minimum sentence, only for cases at the lowest end of seriousness or relevant offending, as submitted by the Crown. A clear expression of such an intention would be expected and is not present”.

31. This view, however, was held to be wrong in a number of succeeding cases and is not the position in this State for interpretation of the minimum sentencing provisions contained in the Migration Act. I accept Mr Boncardo’s submission that the construction of the provisions of the Migration Act by intermediate appellant courts is not binding on the Court of this Court as it relates to the construction of a different Act.

32. I do not accept the Crown submission that s 16AAB reserves the mandatory minimum sentence for cases only at the bottom of the spectrum of seriousness for the relevant offending. The legislature is presumed not to alter common law doctrines or principles in the absence of expressed words or necessary implication. In determining appropriate punishment for criminal offending the punishment is to be measured by reference to the particular circumstances of the offence and the offender: Magaming v The Queen (2013) 252 CLR 381 at [51].

33. Where two alternative constructions of legislation are open that which is consonant with the common law is preferred: Balog v ICAC (1990) 169 CLR 625 at 635 to 636; Here the Crown asked me to read words into the statute that do not appear. It is a strong thing to read words into an act of parliament and, in the absence of a clear necessity for doing so, a wrong thing to do: R v Young (1999) 46 NSWLR 681 at [5] - [7]. I decline to read into the statute that the minimum sentence is only reserved for cases at the bottom of the spectrum. The legislation does not relevantly provide that the statutory minimum sentences create a predetermined basepoint from which sentences are to be imposed, nor does it provide that the minimum sentence is to apply only to cases falling at the lowest end of the spectrum of seriousness.

34. Section 16AAB must be read as far as possible consistently and harmoniously with a requirement under s 16A(1) to impose a sentence that is of severity appropriate to all the circumstances, having regard to the mandatory considerations set out in s 16A(2). There is no logical imperative that requires the minimum penalty to be imposed for cases falling at the bottom end of the spectrum. There is nothing in the text of the legislation that says so, nor does it find any support in the explanatory memorandum.

SECTION 16A(2)(A) - NATURE AND CIRCUMSTANCES OF THE OFFENDING

35. In assessing the objective seriousness of the offending I have taken into account the checklist in Minehan v R 2001 A Crim R 243; [2010] NSWCCA 140.

Sequence 8

36. Sequence 8 is a “rolled up” count involving more than one separate instance of offending, each capable of constituting separate offences distinct in time. The criminality involved in this charge is greater than with a count involving only one episode of criminal conduct. Sequences 7 and 10 are to be taken into account pursuant to s 16BA of the Crimes Act. Sequence 7 relates to 33 files located on the offender’s Lenovo laptop that were accessed by the offender on 20 September 2019. The files include videos and images depicting penetrative sexual intercourse with children. Sequence 10 relates to four stories describing incest between two seven year old boys and their two 14 year old brothers that were accessed by the offender from his mobile phone between 27 June and 1 July 2020.

36. Mr Delzotto’s offending relates only to the accessing of child abuse material. The offending conduct comprised in sequence 8 involved accessing seven CAM files between 5 October 2019 and 3 March 2020 using a Lenovo laptop. These files include six videos and one picture. The picture and six of the videos have been assessed as falling into category 1 of the Interpol Baseline four tier categorisation system, whilst one video falls into category 2.

37. The following matters are relevant to the assessment of objective seriousness of this offending:

1. Seven different files were accessed by Mr Delzotto

2. Actual children were used in the creation of the material

3. The material involved prepubescent children in sexual acts on other children, and in one instance on an adult male

4. The sexual activity included fellatio, anal and vaginal penetration, exposure of genitalia and urination

5. A number of children were depicted in the materials

6. Mr Delzotto accessed the material for his own use. The material was not to be used for sale or dissemination

7. Mr Delzotto acted alone

8. There was no planning or organisation of any particular sophistication involved in the offending

9. There was no risk of the material being seen or required by vulnerable persons or being seen or required by anyone susceptible to act in the manner depicted in the material.

39. Mr Boncardo submits that the offending falls below the middle of the range of objective seriousness; I accept that submission.

Sequence 5

40. The offence contrary to s 47.22A(1) was constituted by Mr Delzotto storing some 2,552 child sexual abuse files on a Toshiba hard drive, 42 sexual abuse files on his Lenovo laptop, and 59 child sexual abuse files on a OneDrive account accessible via Mr Delzotto’s Samsung tablet. A total of 2,653 child sexual abuse files were possessed by Mr Delzotto in this way. Of these 142 files were videos and 2,511 were images. 54 of the videos and 787 of the images fell within category 1 of the Interpol Baseline four tier categorisation system. Overall, 841 of the files fell within category 1, and 1,812 fell within category 2.

41. The following factors are relevant to assessing the objective seriousness of this offending:

1. The number of files possessed was significant

2. Actual children were used in the creation of the material

3. The material ranged from children engaged in sexual acts with other children and adults to children masturbating

4. The sexual activity included fellatio, anal and vaginal penetration

5. A number of children were depicted in the materials

6. Mr Delzotto possessed the materials for his own purpose, he did not possess them for sale or dissemination

7. Mr Delzotto acted alone

8. There was some planning and organisation in possessing the material with Mr Delzotto having downloaded and saved the material on three devices. The planning and organisation cannot be described as sophisticated

9. There was no risk of the material being seen or required by honourable persons or seen or required by persons susceptible to act in the manner depicted in the material.

42. The Crown submits that the offending falls in the mid to high range of objective seriousness for offending of this type. Having regard to the number of items of material, the number of children depicted, and the nature of the material, the offending falls in the middle of the range of objective seriousness.

MORAL CULPABILITY

43. The following documents were tendered on behalf of the offender: Exhibit A, psychologist report of Dr Roger Blake, 27 May 2021; Exhibit B, psychologist report of a Graham Randall dated 27 May 2021; Exhibit C, affidavit of the offender affirmed on 2 June 2021; Exhibit D, court attendance notice to appear at the Corowa Local Court on 22 July 2020; Exhibit E, COPS event in regard to Mulwala incident on 11 September 2020.

44. Dr Blake in his report at p 4 says the offender,

“Identified a very high level of alcohol addiction, he meets a diagnosis for major depressive disorder. He has historically and currently been experiencing major depressive symptoms and meets that diagnosis. Mr Delzotto has been prescribed and been taking an antidepressant medication for around ten years. In my opinion major depression has been causal and contributed to the offending. Mr Delzotto’s cycle of thoughts, feelings and behaviours supports a view that major depression was an underlying psychological condition as related to his offending. It is likely that the psycho‑reactive nature of alcohol has allowed Mr Delzotto to become totally absorbed in an obsessive quest to seek increasingly explicit images of mostly pubescent teens. As previously indicated Mr Delzotto has used alcohol and child pornography to cope with his lack of life direction, depression, and emotionally impoverished circumstances.”

45. The Crown cross-examined Dr Blake on 8 June 2021 questioning the causal link between alcohol, depression and offending. In evidence-in-chief at transcript 13 Dr Blake gave evidence that.

“There’s a whole range, a raft of empirical evidence that states child sexual offending is not purely around sexual gratification or stimulation, there’s a lot of emotional factors that go to it, in fact, one of the most key risk assessment instruments called The Stable talks about intimacy deficits, failed relationships, and sex as coping, and that’s very much related to people with a history of depression or a diagnosis of depression. And certainly I see that with Mr Delzotto quite clearly, so sex is coping, trying to ameliorate depressive state through the seeking of child pornography, that’s the link I’m drawing between, you know, depression and his offending.”

46. When asked about the consumption of alcohol and offending he said,

“My expert opinion, it’s all very interlinked. People, you know, become, you know, addicted to alcohol and habitual drinking with a lot of underlying emotional reasons, so he’s drinking to kind of ameliorate loneliness, stress, negative mood states, including depression, but he also then has this disinhibiting effect where, you know, he crosses that moral boundary, and yes, it’s sexual stimulation but it’s also comfort seeking, to child pornography. So you know, the alcohol comment, yes, it’s an inhibiting effect but it’s also, you know, to try and deal with depression. But in turn it links into just giving him more, you know, disinhibition and permission, I guess to seek out, you know, child sexual material.”

47. He went on to say in cross-examination at transcript 15 as to the use of the term “causation”,

“I’m using it in a psychological sense obviously, and, you know, as I pointed out in an earlier statement I made that, you know, lonerism(as said), intimacy deficits, failed relationships, all lead to depression, and depression is an empirically validated psychological factor within child sexual offending, and it - so I’m using causal in a psychological sense.”

48. At transcript 16 he said,

“...depression can certainly impact upon a person’s ability to engage in advanced consequential thinking, moral reasoning and impulse control, so, you know, that’s a known empirical fact, people who are majorly depressed, you know, often have a poor sense of more compass, often they’re not really very - you know, they’re not thinking in consequential ways indeed they quite - yeah, their level of impulse control is quite impaired...I’m saying his moral reasoning and judgment was impaired. He knew it was wrong, but certainly, you know, because or major depression and substance abuse and a whole range of other life factors, you know, his capacity to kind of . abstain or stop this kind of compulsive behaviour was - was quite diminished.”

49. At transcript 18 I asked this question,

“Q. Doctor if he was not suffering from major depressive illness what’s the likelihood of his offending?

A. Well I think, I mean, my expert opinion, if he wasn’t suffering a major depressive illness the likelihood of his offending would be a much lower risk.”

50. I am satisfied on balance that the offender at the time of the offending suffered a major depressive disorder and that major depressive disorder was causal and contributed to his offending. His alcoholism led to disinhibition and he crossed moral boundaries. His moral reason and judgment was impaired due to his major depression and substance abuse. I am satisfied on balance that the moral culpability of the offender has been reduced due to him suffering a major depressive disorder at the time of offending. I am also satisfied that due to the offender’s major depressive disorder, which is ongoing, general deterrence and specific deterrence need to be moderated.

Section 16A(2)(g) - Plea of Guilty

51. The plea was entered at the first reasonable opportunity. It has significant utilitarian value. It spared the need for a trial. It reflects a willingness to cooperate with, and facilitate, the course of justice. I allow a discount of 25%.

Section 16A(2)(h) - Cooperation With Law Enforcement

52. He cooperated with police. He provided passwords to is devices and made full admissions upon questioning. If I am required to specify a discount for cooperation I assess it at 5%.

Section 16A(2)(d) - Subjective Circumstances

53. Mr Delzotto grew up in regional Victoria. He struggled as a child and teenager with his sexuality. He realised he was attracted to men in his early teenage years, had faced significant prejudice both at home and in his local community. His parents both drank alcohol to excess, and his father was emotionally absent. One of his elder brothers regularly beat him from the age of 11. Those beatings were often inspired by Mr Delzotto’s sexuality. The beatings were extremely violent and resulted in Mr Delzotto suffering injuries which often kept him away from school.

54. His first sexual encounter involved him being sexually assaulted by an older boy at age 12 or 13. The boy told him to keep quiet about it, and when Mr Delzotto approached the boy about it the elder boy beat him up. The trauma of his sexual and subsequent physical assault, as well as the regular beatings by his brother during his formative years, combined with his anxiety about his sexuality appeared to have had significant impacts on his capacity to engage in relationships and form positive attachments throughout his life.

55. After a car accident at the age of 20, which rendered him unable to perform physical labouring work, Mr Delzotto trained as a chef. He thrust himself into his vocation and successfully operated a number of businesses which over the years employed a number of workers. Despite appearing to be a reasonably high functioning individual Mr Delzotto drank heavily and took drugs. He did this to blank out and deflect from the attraction he felt to male children, and attraction he had felt since he was a teenager but which he was too ashamed and frightened to do anything about.

56. In 2000 he was charged and subsequently convicted of seven counts of indecently treating a highly vulnerable eight year old boy who was under his care. He made full admissions to police and pleaded guilty at the first available opportunity. He was sentenced to a non-parole period of 16 months. Mr Delzotto was deeply ashamed of his offending and acknowledges and understands the horrendous impact it would have on the victim and the victim’s family. After being released from custody Mr Delzotto engaged in counselling with a drug and alcohol group. He found these experiences positive. But after resuming fulltime work his engagement with these services lapsed.

57. He was in one relationship of significance which ceased prior to his incarceration and in circumstances where his former partner had attempted suicide and blamed Mr Delzotto for this. After being released from custody in 2002 he has had no relationships of any significance. Whilst he threw himself back into his work after 2002 he also resumed drinking heavily and taking illicit drugs. Some ten years ago he was diagnosed with depression. In 2019 Mr Delzotto moved to Mulwala to commence work as a chef at a local pub. After six months he started work at Club Mulwala. Mr Delzotto led an isolated and lonely existence in Mulwala. He had few friends. His drinking became exceedingly problematic to the point that he was drinking half a bottle of vodka each evening.

58. He commenced searching for and downloading child pornography. He derived a level of excitement from his conduct and rationalised his actions on the basis that he was not himself engaged in the abuse he was witnessing. At this time he was also experiencing intensive suicide ideation and attended Bunnings to purchase a rope to hang himself with. He also kept razorblades on his coffee table. When AFP officers executed a search warrant at his house on 1 July 2020 he made full admissions to his offending. He also provided the officers with passwords for his devices assisting them in uncovering his offending.

59. After being arrested and released from custody he was targeted by his neighbour who threatened him with death, sought to break into his premises and damaged his vehicle. He was living in fear of his neighbour since, notwithstanding a domestic violence order applied for and obtained to protect him from the neighbour. In early 2021 after he had pleaded guilty in the Local Court he was regularly abused and threatened in Mulwala. He lived in a state of perpetual fear and did not leave his house. He was forced to go to Albury or Corowa to shop for essentials.

60. He is undertaking fortnightly counselling sessions as part of the Uniting Church’s Men Taking Responsibility Program. Mr Delzotto’s engagement with Mr Randall has proved to be of immeasurable benefit. He has ceased his problematic consumption of alcohol. He has also developed insight into his offending and commenced the process of understanding triggers for his offending and strategies to prevent further offending. He is well engaged and committed to his therapy.

Section 16A(2)(m) - Mental Condition

61. Dr Blake opines that Mr Delzotto was at the time of the offending experiencing a major depressive disorder. He was also at a very high level of alcohol addiction. Dr Blake details that his underlying psychological condition related to and contributed to is offending. There was therefore a causal link or nexus between Mr Delzotto’s offending and his underlying mental disorders. These circumstances operate to ameliorate his moral culpability and therefore the objective gravity of the offending. Further, Mr Randall outlines his opinion that in addition to suffering depression, Mr Delzotto meets the criterial for the post-traumatic stress disorder for the purposes of DSM-5.

Section 16A(2)(f) - Contrition

62. Mr Delzotto recognises the seriousness of his offending. He is disgusted with, and deeply ashamed of, his behaviour. He understands that his conduct contributed to the suffering of innocent children. He is appalled at the manner in which he rationalised his behaviour whilst engaged in offending.

Section 16A(2)(m) - Prospects of Rehabilitation

63. There is a sentence assessment report date 13 May 2021. Mr  Delzotto has been assessed at a high risk of reoffending according to the level of service inventory. Mr Randall (psychologist) is of the opinion that Mr Delzotto does not meet the criteria for paedophilia. He says further, “that treatment would be highly effective, particularly given his willingness to engage in therapy. The program that Mr Delzotto has commenced is specifically designed to address these areas of concerns identified in Mr Delzotto’s profile”. It is Mr Randall’s opinion that, “Mr Delzotto’s risk for reoffending based on sonar is low”. I prefer the opinion of Mr Randall as opposed to Taylor Williams, community corrections officer. There is nothing in the sentence assessment report that sets out the author’s qualifications or experience other than that the author is a community corrections officer.

64. Mr Delzotto has been accepted into treatment and is committed to the treatment process at the Pastoral Counselling Institute in the 'Men Taking Responsibility Program”. The program specifically addresses child sexual offending among men. I do not accept the Crown submission that his prospects of rehabilitation are poor. He has prospects of rehabilitation. It would be in his and the community’s interests for him to re-engage with the program when he is released from prison.

65. I take into account s 16A(2) - AAA - which provides that,

“A court sentencing an offender for a Commonwealth child sexual offence must take into account the objective of rehabilitating the person”.

I take this into account in the instinctive synthesis of sentencing.

EXTRA-CURIAL PUNISHMENT

66. Mr Delzotto was subject to abuse, violence, and harassment by his neighbour as a result of the offending. He has also been subject to abuse and threats in his local community. He has lived in fear, particularly since the publication of an article detailing his offending in early February 2021.

67. Exhibit D is a court attendance notice and fact sheet where Mr Eddy engaged in vigilante conduct threatening Mr Delzotto to leave his apartment permanently or he would end up in a “body bag”. It was an attempt to run the offender out of the small country town that he was living in. Mr Eddy then used his vehicle to drag the offender’s vehicle out of the driveway. He then dragged a second vehicle owned by the offender onto the street.

68. A 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: R v Daetz and Wilson 139 A Crim R 398. I take into account extra curial punishment occasioned to Mr Delzotto.

Section 16A(2)(j)(a) - General Deterrence

69. General deterrence is the paramount factor in sentencing for offences of this nature because of the paramount public interest in promoting the protection of children.

Section 16A(2)(j) - Personal Deterrence

70. Although Mr Delzotto has a previous conviction of a relevant offence in 2001 he now has insight into his offending. He has taken positive steps to rehabilitate himself and has expressed an ongoing commitment to rehabilitation. Personal deterrence is not a factor requiring significant weight in the sentence exercise.

SENTENCE

71. I have considered the table of comparative cases provided by the Commonwealth at 10.9 of exhibit 1. I intend to impose an aggregate sentence. Section 68(1) of the Judiciary Act applies to pick up the aggregate sentencing scheme under s 53A of the Crimes (Sentencing Procedure) Act 1999 for Federal offences dealt with on indictment: DPP (Commonwealth) v Beattie [2017] NSWCCA 301 at [141] – [146].

72. The indicative sentences are as follows:

Sequence 8, 18 months imprisonment. Sequence 5, two years and nine months. I have reduced by 30% from the four year minimum term taking into account his plea and cooperation. I impose an aggregate sentence of three years and three months. It is agreed between the parties that Mr Delzotto is entitled to credit for two days spent in custody. The commencement date of sentence is 26 June 2021. It will expire on 22 September 2024. I impose a non‑parole period of two years and two months whereby Mr Delzotto will be eligible for parole on 22 August 2023.

73. I make a forfeiture order pursuant to s 23ZD of the Crimes Act. Upon the application of the Director of Public Prosecutions, the following items are forfeited to the Commonwealth:

(a)   Toshiba hard drive

(b)   Lenovo laptop computer

(c)   Samsung tablet

(d)   Samsung Galaxy 8 mobile phone.

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Decision last updated: 20 July 2021