R v Delzotto

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 DPP (NSW) v Burton [2020] NSWCCA 54 DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134 Dui Kol v R [2015] NSWCCA 150 Eldridge v The State of Western Australia [2020] WASCA 66 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 JM v R [2014] NSWCCA 297 Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Park v The Queen (2021) 95 ALJR 968; [2021] HCA 37 Patel v R [2022] NSWCCA 93 R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 R v Hurt (No 2) [2021] ACTSC 241 R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338 R v Latif: ex parte Cth DPP [2012] QCA 278 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Nitu (2013) 1 Qd R 459; [2012] QCA 224 R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Totaan v R [2022] NSWCCA 75 Texts Cited: Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 Category: Principal judgment Parties: Regina (Appellant) Enrico Robert Charles Delzotto (Respondent) Representation: Counsel: S Callan SC / K Breckweg (Appellant) R J Wilson SC / K Averre (Respondent)

Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Legal Aid New South Wales (Respondent) File Number(s): 2020/194467 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 325 Date of Decision: 25 June 2021 Before: Grant DCJ File Number(s): 2020/194467

Judgment

1. BEECH-JONES CJ at CL: I agree with Adamson J and the orders her Honour proposes. I note three further matters.
2. First, the judgment appealed from involved the imposition of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for Commonwealth offences. The orders proposed by Adamson J also involve the imposition of an aggregate sentence for such offences. Recently, a differently constituted bench of this Court, cast doubt on whether such a sentence can be imposed for Commonwealth offences (Patel v R [2022] NSWCCA 93 at [72] to [74] per Brereton JA and [83] to [86] per N Adams J). However, existing authority in this Court has held that it can (Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 (Beattie)). Neither party to this appeal submitted to the contrary. This Court is entitled to act on what was found in Beattie until the contrary is held either by the High Court or this Court acting in accordance with established principles concerning the departure from its earlier decisions (see for example Totaan v R [2022] NSWCCA 75).
3. Second, even though ground 2 of the Commonwealth Director of Public Prosecution's appeal was not pressed, it is necessary to say something further about it in case there is an attempt to reagitate it elsewhere in a manner which is unconnected to the reasoning that has led to this Court's acceptance of ground 1 of the appeal. At least one permutation of ground 2 contended that the power conferred by s 16AAC(2) of the Crimes Act 1914 (Cth) to reduce a sentence below the minimum periods specified in column 2 of the Table in s 16AAB, on account of an offender's plea of guilty or cooperation with law enforcement agencies, could only be exercised in a case that involved the "lowest category of offending" which I understand to mean an offence the objective seriousness of which was at the bottom of the range. The written submissions referred to [213] of the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) which upon its enactment included ss 16AAB and 16AAC and which stated: "The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the table in section 16AAA and subsection 16AAB(2)."
4. The contention that it is only the lowest category of offending that could ever result in the imposition of the minimum sentence is inconsistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and otherwise denies the fundamental precept that the determination of the appropriate sentence requires a consideration of all the relevant factors as part of the "instinctive synthesis" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). Otherwise, as emerged in argument, if this approach to s 16AAC was accepted, then in the case of an offence against s 474.22A(1) of the Criminal Code (Cth) where, say, before any consideration of the discount to be afforded to an offender's plea of guilty, the appropriate sentence has been determined to be 4 years and 6 months, there could be no reduction below the 4-year minimum on account of the offender's plea. However, if the assessment was that, before any consideration of the offender's plea of guilty, the appropriate sentence was 4 years, then the sentence could be reduced to as low as 3 years on account of the plea of guilty (and 2 years if the offender cooperated with law enforcement agencies). This disparity in outcome would be the antithesis of the concept of "equal justice" as explained by Allsop P in Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [45] (Karim) and which was part of the reasoning that led the Court in that case to follow Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 (Bahar) and in turn has led this Court to follow Bahar and Karim in this case. There is nothing in the text of s 16AAC which supported this contention. None of the circumstances envisaged by s 15AB(2) of the Acts Interpretation Act 1901 (Cth) in which second materials such as an Explanatory Memorandum can be considered in the construction of legislation, are engaged.

1. The Crown appeals against the sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) on the following grounds: "1. 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 R [2011] WASCA 249; (2011) 45 WAR 100 and Karim v R [2013] NSWCCA 23; (2013) 301 ALR 597. 2. The sentencing judge erred in reducing the sentence imposed on Sequence 5 pursuant to s 16AAC(2) and s16AAC(3) of the Crimes Act 1914 (Cth) to reflect the Respondent's plea of guilty and co-operation. 3. The sentences imposed in respect of each of Sequences 5 and 8 and the total effective sentence and non-parole period imposed on the respondent are manifestly inadequate, in particular, but not only, because the sentencing judge: a) Failed to adequately reflect the maximum penalties prescribed for the offences; b) Failed to adequately reflect the mandatory minimum penalty for Sequence 5; c) Applied a reduction in the sentence imposed on Sequence 5 to reflect the Respondent's plea of guilty and co-operation where such a reduction was not appropriate; d) Imposed a sentence on Sequence 8 that did not adequately account for the two charges to be taken into account in sentencing for that sequence pursuant to s 16BA of the Crimes Act 1914 (Cth); e) Failed to adequately reflect the serious nature and circumstances of the overall offending; f) Failed to adequately reflect the principles of denunciation, punishment, and specific and general deterrence; and g) Provided inadequate accumulation of the sentences imposed on Sequences 5 and 8."
2. These grounds raise fundamental questions about sentencing where the legislature has stipulated a minimum penalty.

The relevant statutory provisions

1. Section 474.22A was added to "Subdivision D - Offences relating to use of carriage service for child abuse material" of the Criminal Code by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth). The effect of the insertion of s 474.22A was to create a new Commonwealth offence of intentionally possessing child abuse material which has been accessed. This was substantively different from the offence of accessing material, created by s 474.22. Both provisions included the connection with a carriage service in order to ensure their constitutionality pursuant to s 51(v) of the Constitution.
2. Those provisions relevantly provide: "474.22 Using a carriage service for child abuse material (1) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material to be transmitted to himself or herself; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child abuse material. Penalty: Imprisonment for 15 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b). Note: For the meaning of intention and recklessness see sections 5.2 and 5.4. (2A) Absolute liability applies to paragraph (1)(aa). Note: For absolute liability, see section 6.2. (3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section. 474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service (1) A person commits an offence if: (a) the person has possession or control of material; and (b) the material is in the form of data held in a computer or contained in a data storage device; and (c) the person used a carriage service to obtain or access the material; and (d) the material is child abuse material. Penalty: Imprisonment for 15 years. (2) Absolute liability applies to paragraph (1)(c). Note: For absolute liability, see section 6.2. (3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person: (a) obtained or accessed the material; and (b) used a carriage service to obtain or access the material. Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4." [Emphasis in original.]

The facts

1. The facts relevant to the offences for which the respondent stood to be sentenced and the offences which he asked to be taken into account in the sentence for sequence 8 were agreed and can be briefly summarised.
2. On 1 July 2020, a search warrant was executed at the respondent's home. Police seized a hard drive, a laptop computer, a tablet and a mobile phone belonging to the respondent. Forensic digital analysis of these devices revealed a total 2,653 files (according to the agreed statement of facts) containing child abuse materials on these devices. The offence of possession was sequence 5.
3. Forensic analysis also revealed that the respondent had used a carriage service to access 7 of the 42 files located on the laptop, including images and videos depicting penetrative intercourse between adults and children (sequence 8).
4. The respondent asked that two further offences, sequences 7 and 10, be taken into account pursuant to s 16BA of the Crimes Act in the sentence imposed for sequence 8. The sequence 7 offence involved the respondent using the internet to access 33 of the 42 files located on the laptop on 20 September 2019. The sequence 10 offence involved the respondent using his mobile telephone between 27 June 2020 and 1 July 2020 to access a website which contained four written stories describing incestuous sexual encounters between two seven-year-old boys and their two 14-year-old brothers which was classified as child abuse material.
5. The respondent was sentenced on the basis that the sequence 5 offence was a second child sexual abuse offence, which attracted the operation of s 16AAB(1) of the Crimes Act. It was accepted that, in 2001, the offender was convicted of seven counts of aggravated indecent treatment of a child under 16 years contrary to s 210 of the Criminal Code 1899 (Qld) (the Queensland Code), for which a total effective sentence of 3½ years with a non-parole period of 16 months was imposed (the Queensland offence). At the sentence hearing, the respondent accepted that an offence contrary to s 210 of the Queensland Code was a State registrable offence and that therefore the minimum penalty in s 16AAB of the Crimes Act applied, subject to s 16AAC. The respondent now challenges, in his response to ground 1, the proposition that the Queensland offence was a State registrable child sex offence. His challenge will be addressed later in these reasons.

The two main approaches

1. Before turning to the remarks on sentence it is convenient to summarise the two main approaches to sentencing which are, at least theoretically, available where mandatory minimum sentences are prescribed.

The Bahar approach of using the minimum penalty to establish a range from the outset

1. The first approach will be referred to as the Bahar approach because it was the approach endorsed by the Western Australian Court of Appeal in Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 (Bahar). The Bahar approach involves the sentencing judge having regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentences in the same way as the maximum penalty is used to prescribe the upper limit of the range of appropriate sentences. It follows from the principle that the sentence must be proportionate to the objective gravity of the offence (R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ)) that the mandatory minimum sentence applies as a pre-determined base line for cases which involve the least serious offending.

The Pot approach of applying the minimum term provisions only if the outcome falls below the minimum

1. The second approach will be referred to as the Pot approach because it was the approach taken by Riley CJ in R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) (Pot).
2. The Pot approach is a two-stage approach which involves the sentencing judge having regard to the maximum penalty (but not, in the first stage, the minimum penalty) and applying all relevant sentencing principles. It is only if the ultimate sentence to be imposed falls below the minimum penalty that the minimum penalty has any effect. On this approach, if a minimum sentence of 4 years has been stipulated, an offender who, but for the stipulation of a minimum sentence, would have received a sentence of 1 year, will receive the same sentence as the offender, in respect of whom a sentence of 4 years was arrived at without taking into account the statutory minimum. Such a result tends to compromise the principles of equal justice.
3. The Pot approach inflates the sentences for those offences at the lower end, which would otherwise have been below the minimum penalty but has no effect on those above the minimum penalty.
4. In this respect there is an analogy between the two-stage approach and the approach to the jurisdictional limit which prohibits the Local Court imposing a sentence exceeding 2 years' imprisonment. In R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 (Doan) at [35], Grove J held that the 2-year jurisdictional limit did not operate as a maximum penalty and thus a sentence of 2 years ought not be reserved for the worst case. His Honour said, at [35]: "… where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit."
5. This approach to jurisdictional limits (as opposed to minimum penalties, which did not arise) was endorsed by the High Court in Park v The Queen (2021) 95 ALJR 968; [2021] HCA 37 at [19] and [23] (Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ).

The approaches taken in the authorities

1. In Bahar, the Court was concerned with the construction of s 233C of the Migration Act 1958 (Cth) which specified a mandatory minimum sentence for an offence contrary to s 232A, which provided that "a person who organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people … and does so reckless as to whether the people had, or have, a lawful right to come to Australia; is guilty of an offence punishable, on conviction, by imprisonment for 20 years or 2,000 penalty units, or both."
2. Section 233C provided: "(1) This section applies if a person is convicted of an offence under section 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) 8 years, if the conviction is for a repeat offence; or (b) 5 years, in any other case. (3) The court must also set a non-parole period of at least: (a) 5 years, if the conviction is for a repeat offence; or (b) 3 years, in any other case."
3. The Court in Bahar expressly rejected the Pot approach. The rationale for the Bahar approach appears from the reasons of McLure P as follows: "53 The statutory language makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose a non-custodial sentence and the power to impose a sentence of less than five years. Thus, s 233C is positively inconsistent with s 17A of the Crimes Act which requires that consideration be given to different types of sentence. However, the later, specific provision (s 233C) must prevail. 54 Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the 'just and appropriate' sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a 'just and appropriate' sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied."

The proceedings in the Court below

1. At the sentence hearing on 8 June 2021, the Crown tendered the agreed statement of facts (the effect of which is summarised above), the court attendance notices, the schedule under s 16BA of the Crimes Act, the respondent's criminal history and the transcript of proceedings in the Queensland District Court. The respondent tendered reports of psychologists, Dr Roger Blake and Graham Randall; an affidavit by the respondent; a court attendance notice relating to charges laid against his neighbour for abusive, violent conduct towards the respondent as a result of the charges and his plea of guilty and an associated Computerised Operational Policing System (COPS) report. A sentencing assessment report was also tendered. The respondent gave evidence and was cross-examined. When asked whether he would "behave like this again", he said "no" and explained: "Because it hurts so many people, it hurts children and it's just unacceptable, and it's not the just the children, it's the - it's the ripple effect when you throw that stone into a pond and it goes out, and it goes to my family, my two elderly brothers, my friends that I have left, and even my work colleagues who I worked with; it hurts everybody. I want to be productive, not destructive."
2. Dr Blake also gave evidence and was cross-examined.
3. In the Court below, the Crown contended that the Bahar approach was correct. The respondent's counsel submitted first, that, as Bahar concerned provisions of the Migration Act, it did not apply to the Crimes Act provisions or to offences under the Criminal Code and that the sentencing judge was not bound to follow the Bahar approach. Second, the respondent's counsel emphasised that s 16AAB of the Crimes Act neither required the Court to impose more than the mandatory minimum, nor provided that the statutory minimum sentence created a base point from which sentences were to be imposed. Third, he submitted that s 16AAB did not expressly provide that minimum sentences were only to apply to cases falling at the lowest end of seriousness. Fourth, he relied on the absence of any corresponding provision to s 16AAC(2) of the Crimes Act in the Migration Act.
4. The Crown contended that the offending was objectively "extremely serious". The respondent contended that, having regard to all relevant factors, including the causal effect of the respondent's mental illness, the objective seriousness of the sequence 5 offence was in the middle of the range and the objective seriousness of the sequence 8 offence fell below the mid-range.

The remarks on sentence

1. In the remarks on sentence delivered on 25 June 2021, his Honour set out the relevant statutory provisions and the parties' submissions. His Honour contrasted the provisions of the Migration Act, which were relevant in Bahar, with ss 16AAB and 16AAC. His Honour said, at [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."
2. On that basis, his Honour accepted the respondent's submission that the authorities which concerned the Migration Act, including Bahar were not binding on him.
3. For sequence 8, his Honour noted that sequences 7 and 10 were also to be taken into account. His Honour listed the following matters as relevant to an assessment of the objective seriousness of sequence 8: the number of files accessed (seven); the material involved prepubescent children in sexual acts on other children and, in one instance, on an adult male; the sexual activity included fellatio, anal and vaginal penetration, exposure of genitalia and urination; a number of children were depicted; the respondent acted alone and accessed the material for his own use rather than for sale or dissemination; there was no sophisticated planning or organisation; and there was no risk of the material being seen by a vulnerable person or by anyone who was susceptible to act in the way depicted. On the basis of these matters, his Honour accepted the respondent's counsel's submission that sequence 8 fell below the middle of the range of objective seriousness.

Ground 1: alleged failure to follow the Bahar approach

1. Mr Wilson SC, who appeared with Mr Averre for the respondent, accepted that the sentencing judge had not followed the Bahar approach. He submitted that his Honour was entitled to distinguish Bahar and that the Pot approach applied to a provision such as s 16AAB of the Crimes Act.
2. However, he submitted, as a preliminary issue, that s 16AAB did not apply in the present case for the following two discrete reasons: 1. the relevant conduct which constituted the sequence 5 offence was engaged in before s 474.22A of the Criminal Code commenced on 23 June 2020; and 2. the offence committed by the respondent in Queensland was not a State registrable child sex offence within the meaning of s 3 of the Crimes Act.
3. It is convenient to address these preliminary matters before turning to the submission that the Bahar approach did not apply to a provision such as s 16AAB of the Crimes Act.

Whether the relevant conduct which constituted the sequence 5 offence was engaged in before s 474.22A commenced on 23 June 2020

1. The respondent argued that it was an element of an offence under s 474.22A that "the person used a carriage service to obtain or access the material": s 474.22A(1)(c). He submitted that: 1. use of a carriage service to obtain or access the material amounted to "conduct" within the meaning of s 4.1(2) of the Criminal Code which defined conduct as meaning "an act, an omission to perform an act or a state of affairs"; 2. the conduct in (1) was, necessarily, the conduct of the respondent; 3. therefore, the conduct was part of the "relevant conduct" referred to in cl 3 of Part 1 of Schedule 6 of the 2020 Act, which needed to have been engaged in on or after the commencement of the Part, 23 June 2020; 4. it was common ground the conduct could not be shown to have been engaged in on or after 23 June 2020; and 5. accordingly, s 16AAB of the Crimes Act did not apply.
2. The Crown argued, in response, that to characterise the use of the carriage service to obtain or access the material as "conduct" in (1) was at odds with the provisions of the Criminal Code which, correctly applied, resulted in such use being a "circumstance" within the meaning of s 4.1(c), rather than "conduct". The Crown's analysis depended on the following provisions of the Criminal Code: "4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. (2) In this Code: conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means: (a) do an act; or (b) omit to perform an act." [Emphasis in original.]
3. Section 6.2(2) of the Criminal Code provides: "6.2 Absolute liability … (2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element. …" [Emphasis in original.]
4. The Crown contended that, while s 474.22A contains the physical elements of both possessing and accessing the material, no fault element attached to s 474.22A(1)(c) (that the material in the possession of an accused was obtained or accessed using a carriage service).

Whether the offence committed by the respondent in Queensland was not a State registrable child sex offence within the meaning of s 3 of the Crimes Act

1. The respondent further submitted that an offence under s 210 of the Queensland Code did not become a registrable offence until 1 January 2005, when the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) commenced. He submitted that because it was not a registrable offence either when the respondent committed the s 210 offence or when he was convicted of that offence (in 2001), it did not fall within the definition of State registrable offence in s 3 of the Crimes Act.
2. I do not regard the respondent's submissions as adequately taking account of the wording of the definition of State registrable offence. It is noteworthy that the legislature has chosen to use the following words to express its intention: "an offence … that a person becomes, or may at any time have become, a person whose name is entered on a child protection register (however described) of a State … for committing; and … in respect of which a child was a victim …" [Emphasis added.]
3. The use of the indefinite article "a" before "person" indicates that the legislature intended to capture any State child sex offence that at any time may lead a person (not necessarily the offender) to be placed on a child protection register. Thus the relevant criterion is whether the offender has been convicted of an offence that falls within the relevant definition, irrespective of whether the offender could ever have been placed on a register. The focus of the provision is on the type of offence and not on either the specific offender or the actual offence committed by the offender, except in so far as the latter forms part of a type.
4. When the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) commenced, the respondent became a person who had been convicted of a State registrable child sex offence and thus, when he was to be sentenced for sequence 5, s 16AAB applied to him.

Whether Bahar is distinguishable such that it does not apply in the circumstances of the present case

1. As these preliminary matters have been decided adversely to the respondent, it is necessary to address Mr Wilson's principal submission that there was an important distinction between the following two categories and that the Bahar approach only applied to the first: 1. legislative provisions where the prescription of a minimum penalty serves to indicate the view of Parliament as to the seriousness of a particular offence (ss 233A and 233C of the Migration Act); and 2. legislative provisions where the prescription of a minimum penalty does not depend on the seriousness of the offence of itself but rather on the circumstances of the offender who committed it, and, in particular, whether the offender had previously been convicted of an offence of a particular category (the application of s 16AAB of the Crimes Act to an offence contrary to s 474.22A(1) of the Criminal Code).
2. Mr Wilson submitted that Bahar itself was an example of category (1) since all that was required was that the offender be convicted of an offence against s 233C of the Migration Act before the minimum penalty in s 236B applied. He contrasted these provisions with the application of s 16AAB of the Crimes Act to the sentencing of the respondent for an offence contrary to s 474.22A(1), which he submitted fell into category (2). He submitted that in category (2), the Bahar approach was inapplicable because the legislature had chosen, as one of the criteria for imposing a minimum penalty, matters germane to the offender (that the offender had been previously convicted of an offence of a particular type).
3. Mr Wilson submitted that this classification was reinforced by the circumstance that there was no absolute minimum penalty since s 16AAC(3) provided for the application of discounts for a plea of guilty or co-operation with authorities, which were capable, in certain circumstances, of bringing the penalty below the minimum penalty otherwise stipulated.
4. I am not persuaded that the dichotomy for which Mr Wilson contended is either maintainable or has the consequence for which he contended. Section 236C of the Migration Act also builds in the factor of recidivism by imposing higher minimum penalties for "a repeat offence" than "in any other case." The differences between ss 233C and 236B of the Migration Act on the one hand and s 16AAB of the Crimes Act and s 474.22A of the Criminal Code on the other are, in my view, formal and reflect different drafting styles but are nonetheless substantially the same.

Ground 2: alleged discounts for plea of guilty or law enforcement cooperation not available where the assessment of objective seriousness was not in the lowest category

1. At the hearing of the appeal, the Crown abandoned the argument for which it contended in written submissions that no deduction for a plea of guilty or cooperation with law enforcement agencies could be made unless the sentence would otherwise be one at the statutory minimum of 4 years. In these circumstances, the Crown accepted that ground 2 had no separate operation beyond grounds 1 and 3. Accordingly, it is not necessary to address it.

Ground 3: manifest inadequacy

1. There are some similarities between a ground of manifest excess and one of manifest inadequacy in that each involves a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). While a ground of manifest excess need not be determined if another ground is made out which requires this Court to re-sentence, the position is otherwise for a ground of manifest inadequacy. The reason for this is that manifest inadequacy is relevant to, if not determinative of, the question whether this Court should intervene on a Crown appeal.
2. The Crown has particularised the bases on which it alleges that the sentence was manifestly inadequate, as well as relying on the sentence as a whole. Particular (b) has been considered in the context of ground 1. Particular (c) which, as noted above, falls away with the abandonment of the argument which underpinned ground 2.
3. The Crown supported its contention that the aggregate sentence was manifestly inadequate by contending that the indicative sentences for sequences 5 and 8 were also inadequate (consistently with this Court's summary of principles in JM v R [2014] NSWCCA 297 at [40], proposition 11 (R A Hulme J, Hoeben CJ at CL and myself agreeing). However, before addressing the indicative sentences, it is important to recognise the significant overlap between sequences 5 and 8, for which the respondent was to be sentenced, as well as sequences 7 and 10 which were to be taken into account on the sentence for sequence 8.
4. As was recognised in Allison at [6], there is a significant overlap between an offence such as in s 474.22(1), which provides for specific fault elements in relation to access to child abuse material, and s 474.22A(1) where accessing child abuse material using a carriage service is a strict liability element. The Court said in Allison: "45 … the critical hallmark of the possession offence is that the accused has possession or control of the medium (computer, data storage device or document) in which the material is captured. Possession is not necessarily denoted by the 'additional step' of saving the material. As the definition of 'access' shows, access may include copying or moving the material to any other place in a computer or to a data storage device, therefore access may in a given case include the step of downloading and saving material onto a computer hard drive or a data storage device. But unless the relevant medium is one that the accused has or takes possession or control of, the offence does not pass beyond the access offence. Saving the material for the purpose of ongoing or future use would usually imply that the user retains possession or at least control of the material, but merely downloading or saving it would not necessarily carry that implication. That is, the additional step is better described as 'keeping', rather than 'saving', the material. … 46 Regardless of that minor qualification, the two offences are nonetheless aimed at different behaviours and that is reflected in their different elements. This is not a case where there would be nothing left to be punished once the applicant is convicted and sentenced for the possession offence. 47 This conclusion is supported (although not compelled) by the cases concerning the sentencing for overlapping Commonwealth access offences and State possession offences. In those cases the courts have recognised the different aspects of the distribution and possession of child abuse material caught by the access offence and an offence of possession. The two forms of offences are directed at different but related vices." [Footnotes omitted.]

The residual discretion

1. On a Crown appeal, this Court retains a residual discretion to decline to intervene with a sentence, even one which has been found to be manifestly inadequate: CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9. It is for the Crown to negate any reason why the discretion not to interfere ought not be exercised.
2. Mr Wilson did not suggest that there had been any relevant delay in filing or prosecuting the Crown appeal. Indeed, he acknowledged that the Crown appeal was timely and had been brought expeditiously. He submitted that, as the respondent was the first person to be sentenced under the sentencing provisions inserted into the Crimes Act in 2012, this Court could provide guidance to sentencing judges in these reasons without disturbing the sentence imposed. He submitted that a refusal to intervene would not undermine confidence in the proper administration of the criminal justice system and that, in these circumstances, this Court should dismiss the appeal.
3. I consider there to be a compelling reason for this Court to intervene in the present case. For the reasons given above, the sentencing judge failed to comply with the statutory mandate in s 16AAB of the Crimes Act. This breach ought not be left unrectified. As I am satisfied that the aggregate sentence imposed by the sentencing judge was manifestly inadequate, it is not necessary to address whether this Court would have been obliged to intervene in these circumstances, had I not been so satisfied.

Re-sentence

1. The objective and subjective matters which applied at the time of sentencing are sufficiently set out in the remarks on sentence set out above.
2. On re-sentence, the respondent relied on his affidavit of 23 May 2022 in which he deposed as follows: "2 This is my first time in custody, and I have been in custody since 25 June 2021. 3 When I first went into custody, I was in protective custody at Junee due to the nature of my offences. Other inmates found out what I was in gaol for, and most days I was subject to a lot of verbal abuse and intimidation. I was always very anxious that I was going to be physically assaulted. 4 This behaviour continued until was reclassified C2 and removed from protective custody about 5 weeks ago. I am very active in my new pod of about 12 inmates. We share cooking and cleaning duties and all get along pretty well. 5 My first job in custody was in the kitchen. Because of Covid, there were lots of lockdowns and I would volunteer.to work additional hours, sometimes for 10 hours a day, 7 days a week. I didn't mind the extra work as I preferred to keep busy. 6 About 3 months ago I then changed jobs and for a while was doing office cleaning. 7 After being reclassified, I applied for a gardening role. For the last month or so I have been working in the prison gardens, outside the gaol walls. This is a very trusted position. I largely work on my own and am subject to minimum supervision. I work 5 days a week in charge of the herb and hothouse section. I love this job and look forward to work each day. 8 I have done several courses in custody including; - Furniture making certificate 2 - Work place health and safety - Food handing - 'Positive Lifestyle', this was an 8 week program run by the prison reverend. 10 This course has helped me enormously in changing my way of thinking and eliminating negative thoughts. I still maintain fairly regular contact with the reverend, which I enjoy. 11 I am currently being treated for depression and take 100ml daily of antidepressant Pristique. It took a little while to settle on the appropriate dosage, but I now feel quite stable and settled. 12 My only family is my two brothers. One lives in Western Australia and the other lives in Victoria. I don't get any face to face visits, but I do get to speak on the phone with my brothers about every 2 weeks. 13 When I am finally released from custody, I would love to be able to start my own organic herb supply business to local restaurants and cafes in the Lismore area."

Proposed orders

1. For the reasons given above, I propose the following orders: 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: 1. for sequence 5, the indicative sentence is 4 years and 2 months' imprisonment; and 2. for sequence 8 (taking into account sequences 7 and 10) the indicative sentence is one year's imprisonment.

Amendments 06 June 2022 - Representation corrected - coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2022