R v Delzotto [2022] NSWCCA 117

R v Delzotto [2022] NSWCCA 117

The failure of the sentencing judge to apply the Bahar approach—that is, to treat the minimum sentence as the baseline for the least serious offending—resulted in a manifestly inadequate sentence that did not reflect the mid-range objective seriousness of the respondent’s offending. The correct approach is to apply the minimum as the base from which sentences are determined, with discounts for cooperation and plea as expressly permitted by statute. The Bahar approach remains applicable even where the minimum penalty is triggered by recidivism, and there is no distinction warranting a departure from its application in the present case.

Parties
Appellant: Regina; Respondent: Enrico Robert Charles Delzotto
Jurisdiction
Australia
Judgment Date
06 June 2022
Procedural Posture
Crown Appeal Against Sentence / Appeal and Re Sentencing
Outcome
Appeal allowed. Sentence set aside. Respondent re-sentenced.
Legal Topics
Sentencing, Mandatory Minimum Sentences, Child Sexual Offences, Principles of Sentencing Under Commonwealth Law, Aggregation and Reduction of Sentences
Criminal Law Sentencing Mandatory Minimum Sentences Child Sexual Offences Principles of Sentencing Under Commonwealth Law Aggregation and Reduction of Sentences

Case Brief

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Parties

Regina

Appellant

Enrico Robert Charles Delzotto

Respondent

Procedural Posture

Crown Appeal Against Sentence / Appeal and Re Sentencing

Legal Issues

  1. 1 Whether the sentencing judge erred by not applying the Bahar approach to mandatory minimum sentences for Commonwealth child sex offences
  2. 2 Whether the sentence imposed was manifestly inadequate due to failure to reflect the objective seriousness of offending and to apply a proper indicative sentence for the relevant offences
  3. 3 Whether the discounts permitted for plea of guilty and cooperation could bring the sentence below the minimum statutory penalty

Ratio Decidendi

The failure of the sentencing judge to apply the Bahar approach—that is, to treat the minimum sentence as the baseline for the least serious offending—resulted in a manifestly inadequate sentence that did not reflect the mid-range objective seriousness of the respondent’s offending. The correct approach is to apply the minimum as the base from which sentences are determined, with discounts for cooperation and plea as expressly permitted by statute. The Bahar approach remains applicable even where the minimum penalty is triggered by recidivism, and there is no distinction warranting a departure from its application in the present case.

Court Disposition

Appeal allowed. Sentence set aside. Respondent re-sentenced.

Orders

  • Appeal allowed.
  • Set aside the sentence imposed by Grant DCJ on 25 June 2021.