The Mandatory Minimum Should Only Be Applied to the Least Serious Offences

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By Paul Gregoire and Ugur Nedim

NSW police executed a warrant at the home of Enrico Delzotto in the southern NSW town of Mulwala on 1 July 2020. Officers seized the 57-year-old chef’s laptop, tablet and phone, on which, a forensic digital analysis found, there were 2,653 files containing child abuse material.

The analysis further found that prior to May 2019, Delzotto had used a carriage service to access 7 of 42 files found on the laptop, which included adults having penetrative sex with children, while 33 more of these files were found to have been accessed via the internet on 20 September that year.

Delzotto was also detected having accessed a website between 27 June and 1 July 2020, on which appeared written stories describing the incestuous sexual encounters between two 7-year-old boys and their 14-year-old brothers.

This wasn’t the first time the Club Mulwala chef had been arrested over child sex crimes. In 2001, Delzotto was convicted of seven counts of aggravated indecent treatment of a child under 16 years, contrary to section 210 of the Criminal Code 1899 (Qld).

For this series of child sex crimes in Queensland, which are classified as a state registrable offence these days, the child sex offender was sentenced to 3 years and 6 months prison time, with the court setting non-parole at 16 months.

Sentencing in Albury

Before the Albury Local Court, Delzotto plead guilty to several Commonwealth offences. The first was one count of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to section 474.22A of the Criminal Code (Cth).

This crime carries a maximum penality of 15 years imprisonment. And due to the provisions set out in section 16AAB of the Crimes Act 1914 (Cth), because Delzotto had previously been convicted of a registrable child sex crime, the newly convicted offence carried a minimum sentence of 4 years.

The chef also pleaded guilty to one count of using a carriage service to access child abuse material, contrary to section 474.22 of the Criminal Code. This offence also carries a maximum of 15 years gaol time.

As per the provisions in section 16BA of the Crimes Act, two further crimes were taken into consideration when sentencing for the second count.

These involved using a carriage service to access child pornography, contrary to section 474.19 of the Criminal Code, which carries a maximum of 15 years prison time, as well as a second count of the section 474.22 offence.

On 25 June 2021, NSW District Court Judge Sean Grant found that while the nature of the child abuse material sourced was serious, the offender had not disseminated it to others, so both offences sat at the mid-range of seriousness.

For the count one offence which carried the minimum, his Honour applied a 4 year sentence, which he then discounted via the provisions set out in section 16AAC of the Crimes Act, which permits a reduction of a 16AAB minimum sentence in the case of guilty pleas and cooperation with police.

So, on applying a 25 percent discount for his early guilty pleas and a 5 percent discount for his cooperation with police, his Honour sentenced Delzotto to an aggregate sentence of 3 years and 3 months imprisonment, with a non-parole period of 2 years and 2 months.

Bahar versus Pot  

The Crown appealed Delzotto’s sentence to the NSW Court of Criminal Appeal (NSWCCA) on 25 May this year. 

In the appeal’s final findings, Justice Christine Adamson explained that there are two approaches to dealing with a minimum penalty.

The Bahar approach considers the minimum sentence to work as a maximum does, therefore a sentence must fall between the two limits. This approach was developed prior the child sex crimes minimums being enacted and was based on minimums contained in the Migration Act 1958 (Cth).

The Pot approach, however, considers that sentencing takes place as per usual without the lower bar, but if the sentence then falls below the minimum, that sentence should be applied. However, her Honour points out that this second approach poses significant issues for equal justice.

The prosecution based its appeal on three grounds, which included the sentencing judge having made an error in imposing a sentence not in accordance with Bahar, that he was wrong to apply the sentencing discounts, and that the sentence was manifestly inadequate.

Delzotto submitted on appeal that the minimum should not apply because his previous conviction had not been registrable at the time he committed the crime. But the appeals court found the wording in the relevant legislation outlines that offences “at any time” can be captured.

Dealing with a minimum

Judge Grant said Bahar didn’t apply in Delzotto’s case as section 16AAC discounts “cannot operate harmoniously” with the construction in the authority. So, he took the other approach and imposed a 4 year sentence for the 474.22A offence, which was discounted to 2 years and 9 months.

However, Justice Adamson didn’t agree with the sentencing judge’s reasoning.

Her Honour found that “the legislature considered that the sentences imposed for an offence under section 474.22A ought generally to be increased, in accordance with the Bahar approach, “rather than that the increase be confined to less serious offences”, which is in line with Pot.

Justice Adamson ruled that the Bahar approach should have been taken as it is not at odds with the minimum sentencing provisions in the Crimes Act, as the latter were modelled on the minimum sentences in the Migration Act, which Bahar is based on.

So, ground one was made out, while the Crown dropped its second contention which had asserted that discounts shouldn’t be applied in this case.

And in terms of ground three, her Honour found that the sentence for the section 474.22A offence was manifestly inadequate, as the minimum sentence should only apply to low-end offences, yet in the Delzotto case, it was handed down in relation to a mid-range crime.

“The sentencing judge failed to comply with the statutory mandate in section 16AAB of the Crimes Act,” Justice Adamson said. “This breach ought not be left unrectified. As I am satisfied that the aggregate sentence imposed by the sentencing judge was manifestly inadequate.”

An appropriate sentence

In resentencing, Justice Adamson found, “in taking into account the objective seriousness” of the 474.22A offence, that a 6 year sentence was appropriate prior to applying a 30 percent discount, while the original 18 month sentence for the second offence being correct pre-discount.

On 6 June this year, her Honour ordered that the original sentence be quashed, and a new post-discount aggregate sentence of 4 years and 6 months be imposed, with non-parole set at 3 years.

And Chief Justice at Common Law Robert Beech-Jones and NSWCCL Justice Robert Allan Hulme agreed with their colleague’s orders.

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