Beech-Jones CJ at CL at [1]; R A Hulme J at [6]; Adamson J at [7]
Decision:
(1) Appeal allowed.
(2) Set aside the sentence imposed by Grant DCJ on 25 June 2021.
(3) Impose an aggregate sentence of 4 years and 6 months’ imprisonment commencing on 23 June 2021 and expiring on 22 December 2025 with a non-parole period of 3 years commencing on 23 June 2021 and expiring on 22 June 2024.
(4) Note the following indicative sentences:
(a) for sequence 5, the indicative sentence is 4 years and 2 months’ imprisonment; and
(b) for sequence 8 (taking into account sequences 7 and 10) the indicative sentence is one year’s imprisonment.
Catchwords:
SENTENCING — Crown appeal against inadequacy of sentence — Principles — approach to sentencing where statute provides mandatory minimum sentence — whether sentencing judge erred by not applying the Bahar approach — where sentencing judge should have applied Bahar approach — where ground made out
SENTENCING — Crown appeal against inadequacy of sentence — Manifest inadequacy — where failure to apply Bahar approach led to starting point of minimum mandatory sentence — whether indicative sentence inadequate — where indicative sentence not ‘of a severity appropriate in all the circumstances of the offence’ as required by statute — where ground made out
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — when ‘relevant conduct’ in s 474.22A of the Criminal Code (Cth) had to occur for s 16AAB of the Crimes Act 1914 (Cth) to apply
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — whether conduct was a ‘State or Territory registrable child sex offence’ — where offence was not a registrable offence at the time committed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Delzotto
Sign in free to access the full text
Details
AGLC
R v Delzotto [2022] NSWCCA 117
Case
[2022] NSWCCA 117
Decision Date
CaseChat Overview and Summary
In the case of R v Delzotto, the appellant was convicted and sentenced for using a carriage service for child pornography material, an offence under section 16AAB of the Crimes Act 1914 (Cth). The Crown appealed against the sentence imposed by the sentencing judge, arguing that it was manifestly inadequate. The appeal raised questions about the application of the sentencing principles where a statute provides for a mandatory minimum sentence, and whether the sentencing judge had erred by not applying the principles outlined in the case of R v Bahar.
The primary legal issues before the court were whether the sentencing judge had erred in not applying the Bahar approach, and if this error led to the imposition of a sentence that was inadequate. The court was required to determine whether the starting point for the minimum mandatory sentence was correctly identified and whether the indicative sentence imposed was of a severity appropriate in all the circumstances of the offence. Additionally, the court needed to clarify the scope of 'relevant conduct' under section 474.22A of the Criminal Code (Cth) and determine whether the offence in question was a 'State or Territory registrable child sex offence' when it was not classified as such at the time it was committed.
The court found that the sentencing judge had indeed erred by not applying the Bahar approach, which led to an incorrect starting point for the minimum mandatory sentence. This error resulted in an indicative sentence that was not of a severity appropriate in all the circumstances of the offence. Consequently, the Crown's appeal was allowed, and the case was remitted to the sentencing judge for re-sentencing. The court emphasised the importance of correctly applying the sentencing principles, particularly in cases involving mandatory minimum sentences, to ensure that the sentence imposed reflects the gravity of the offence and the circumstances surrounding it.