For consistency, the term “child abuse material” (CAM) is used throughout this chapter. In 2009, “child abuse material” replaced “child pornography” in the NSW Crimes Act 1900. On 21 September 2019, the previous distinction between “child pornography material” and “child abuse material” in the Criminal Code was replaced with a single, reconstituted definition of “child abuse material” in s 473.1.

A combination of State and Commonwealth offences is not uncommon in a prosecution for offences involving CAM: R v Porte [2015] NSWCCA 174 at [55]. Courts have identified common factors relevant to assessing the objective seriousness of the State offences of possessing and disseminating CAM (Crimes Act 1900, s 91H(2)) and Commonwealth offences of accessing or transmitting CAM (ss 474.19 (rep), 474.22(1)): R v Hutchinson [2018] NSWCCA 152 at [45]. However, it is still important to differentiate between the State and Commonwealth statutory sentencing schemes. Accordingly, if the aggregate sentencing scheme is to be applied in such a case, separate aggregate sentences must be imposed in relation to the State and Commonwealth offences (see [16-040] Sentencing for multiple offences). Also, while State and Commonwealth offences may overlap, they will generally not be identical and any overlap in offences will need to be taken into account as part of totality (see [17-730] General sentencing principles and [17-740] Objective factors (including relevant s 16A(2) matters)).

General deterrence and denunciation are important considerations for offences involving CAM as well as offences involving predatory conduct towards children online: Lazarus v R [2023] NSWCCA 214 at [76]; Martin v R [2019] NSWCCA 197 at [83]; R v Edwards [2019] QCA 15 at [63], [86]; R v Porte [2015] NSWCCA 174 at [60]; DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21].

In R v Booth [2009] NSWCCA 89 at [40]–[44], Simpson J discusses the relationship between the exploitative nature of the offence of possessing CAM (in relation to Crimes Act 1900, s 91H(3) (rep)) and the importance of general deterrence:

The growing prevalence of such offences and the difficulty in detecting them is another reason for emphasising the importance of general deterrence on sentence. In Small v R [2020] NSWCCA 216 at [59] Johnson J (Hoeben CJ at CL and Lonergan J agreeing) quoted the following passage from DPP v Watson [2016] VSCA 73 at [89]:

Specific deterrence has been found to be an important consideration in the following circumstances:

When sentencing an offender for more than one offence, the overall sentence must be “just and appropriate”: Johnson v The Queen [2004] HCA 15 at [18], citing Mill v The Queen (1988) 166 CLR 58 at [63]; see also [8-200] The principle of totality.

For example, it is not uncommon for an offender to be sentenced for accessing (ss 474.19 (rep), 474.22(1)), and possessing, the same CAM (Crimes Act 1900, s 91H(2)). While the overall sentence must reflect that these offences overlap, some measure of accumulation is likely to be required: R v De Leeuw [2015] NSWCCA 183 at [142], [179]. This is to address that, after accessing the material, the offender took the further step of taking possession of it: R v Porte [2015] NSWCCA 174 at [55]–[56], applying R v Fulop [2009] VSCA 296.

In Rajasekar v R [2017] NSWCCA 113, the offender used false identities to groom five children online (s 474.27(1)) and, on one occasion, had a child engage in sexual activity online (s 474.25A(1)). Although the offending was an ongoing course of conduct, it was necessary for there to be some accumulation of the individual sentences to comprehend the distinct criminality of each offence: [34]. See also DPP (Cth) v Beattie [2017] NSWCCA 301 at [155]–[158].

There must be reasonable proportionality between the sentence and the objective gravity of the offence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; see also [10-010] Objective seriousness and proportionality.

In R v Booth [2009] NSWCCA 89, the Court held the sentencing judge gave undue focus to the offender’s need for counselling when imposing a good behaviour bond for an offence of possessing CAM (Crimes Act 1900, s 91H(3) (rep)), at the expense of other sentencing considerations such as the need for general and specific deterrence, and denunciation: [47]–[48].

In R v De Leeuw [2015] NSWCCA 183, the Court held the imposition of an intensive correction order for offending involving possession of over 30,000 items of CAM which the offender had obtained from the internet over a lengthy period (Crimes Act 1900, s 91H(2); Criminal Code, s 474.19 (rep)) was manifestly inadequate: [146]. The sentencing judge approached the offender’s prospects of rehabilitation (a significant factor on sentence) in an erroneous way so the offender’s subjective circumstances overshadowed the substantial objective gravity of the offences: [136].

Note: Section 67 Crimes (Sentencing Procedure) Act 1999 provides an ICO must not be made in relation to a prescribed sexual offence which includes many Commonwealth child sex offences.

The court must have regard to the sentences imposed in all States and Territories: The Queen v Pham (2015) 256 CLR 550 at [23], [41]; see also [16-035] Relevance of decisions of other State and Territory courts.

For offences involving CAM, it is useful to have regard to comparative cases, given a particular case will lie on a spectrum in accordance with factors identified as relevant to assessing objective serious: Lyons v R [2017] NSWCCA 204 at [81]–[82]. Although, the comparative cases should bear similarity to the case before the court. In Kannis v R [2020] NSWCCA 79, the Court held the sentencing judge erred by relying on sentencing decisions which were materially and significantly different from the offender’s case: [284].

In Tector v R [2008] NSWCCA 151, the Court found the following factors in the case relevant to the assessment of criminality for three offences of procuring a child for sexual activity (s 474.26(1)):

In Lazarus v R [2023] NSWCCA 214, the Court held the offender’s persistent and predatory behaviour over eight years involving more than one victim and the use of another person’s identity were relevant to assessing the objective seriousness for offences including procuring a child for sexual activity (s 474.26(1)): [31], [80].

For a serious example of grooming (s 474.27(1)) where the much older offender exploited a child’s emotional vulnerability and subjected her to sustained, predatory communications for over a month, see Small v R [2020] NSWCCA 216 at [54].

Harm to victim (s 16A(2)(e), (ea))

The presumption a child has suffered harm applies to online grooming (s 474.27(1), (2)) and procuring (s 474.26(1)) where the offender has engaged with a child: Adamson v The Queen [2015] VSCA 194 at [47]; R v Kannis [2020] NSWCCA 79 at [126]. In Adamson v The Queen the Court concluded at [56]–[57]:

The presumption does not apply where the offender has been communicating with a person who assumed the identity of a child: Adamson v The Queen at [30]; see also R v Bredal [2024] NSWCCA 75 at [114].

R v Kannis is a case where a victim impact statement illustrated the harms caused by a grooming offence (s 474.27(1)) which included humiliation, anxiety and ongoing fears about intimate material remaining on the internet: [119]–[123].

Generally prior good character will be given limited weight for sexual offences against children, including offences involving CAM: DPP (Cth) v D’Alessandro [2010] VSCA 60; R v Porte [2015] NSWCCA 174 at [126]. However, in Henderson v The King [2024] ACTCA 3 at [52], the ACT Court of Appeal took the offender’s prior good character into account, but found it did not mitigate the seriousness of offences of possessing and transmitting CAM.

Section 16A(2)(ma) Crimes Act provides that where a person’s community standing aided the commission of the offence, this aggravates the seriousness of the offending. Section 16A(2)(ma) applies to Commonwealth offenders charged with, or convicted of, an offence from 20 July 2020.

For a detailed discussion of the relevance of a mental health condition, see [10-460] Mental health or cognitive impairment.

Examples of cases involving Commonwealth child sex offences where a mental health condition has been taken into account include:

Psychiatric or psychological reports may also contain material relating to motive. For example, offending related to learned behaviour from early exposure to CAM (Puhakka v R [2009] NSWCCA 290 at [8]) and confusion about an offender’s sexual identity (R v Booth [2009] NSWCCA 89 at [16]).

While the prospect of rehabilitation is to be taken into account on sentence under s 16A(2)(n) Crimes Act, the Court must ensure it is not given undue focus at the expense of other important sentencing considerations such as general deterrence and denunciation: R v Porte [2015] NSWCCA 174 at [71]–[72]; R v Booth [2009] NSWCCA 89 at [47]; see also discussion of Proportionality in [17-730] General sentencing principles.

When sentencing for a Commonwealth child sex offence, s 16A(2AAA) provides the court must have regard to the objective of rehabilitating the offender, by considering treatment options. This includes, when determining the length of a sentence of imprisonment or non-parole period, that there is sufficient time for the offender to undertake a rehabilitation program.

The Explanatory Memorandum to the amending legislation, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 at [255] to [258] states:

In Darke v R [2022] NSWCCA 52, the Court held it was an error not to consider an offender’s rehabilitation when sentencing for Commonwealth child sex offences: [35]–[36]; see also Henderson v The King [2024] ACTCA 3 at [52].

In Curle v R [2024] NSWCCA 117, the Court held s 16A(2AAA) does not require a sentencing judge to identify how a period of imprisonment takes into account the rehabilitation objective, and nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence where it may have an adverse impact upon an offender’s rehabilitation: [52].

In Clarke-Jeffries v R [2019] NSWCCA 56, the Court found the offender’s criminality for offending including online soliciting of CAM from a child (s 474.17 (rep)) and online procuring (s 474.26(1)) was reduced by his youth and immaturity which had materially contributed to the offending: [50]–[51]. The Court also found the offender’s youth was of significance because this “was not a case of a person of mature years grooming a much younger victim” where the offender was aged 18, and the child victim aged 15: [52]; see also Kannis v R.

See also general discussion of sentencing principles relevant to young offenders at [10-440] Youth.

Mandatory minimum penalties apply to offences specified in ss 16AAA–16AAB Crimes Act: see [17-790] Mandatory minimum penalties.

Further, s 19(5) Crimes Act provides a presumption that sentences of imprisonment for Commonwealth child sex offences are to be entirely cumulative upon other child sex offences (including Commonwealth offences and State or Territory registrable child sex offences). However, the court may, with reasons, impose a sentence in a different manner if it results in sentences of a severity appropriate in all the circumstances: s 19(6)–(7). This suggests the presumption does not unduly fetter the sentencing exercise, and principles of totality still apply: Mertell v DPP (Cth) [2022] ACTCA 69 at [18].

Section 20(1B) specifies conditions to be imposed on a recognizance release order where at least one offence is a Commonwealth child sex offence. Those mandatory conditions concern supervision, treatment, and travel restrictions. Section 20(1)(b)(ii), (iii) also provides a presumption the offender will serve a minimum period of imprisonment before release unless the court is satisfied there are “exceptional circumstances”. “Exceptional circumstances” is not defined but its meaning is discussed in R v Bredal [2024] NSWCCA 75 at [58]–[65]. The term “exceptional” in the context of s 20(1)(b) requires the circumstances to be sufficiently “exceptional” such that, despite a period of imprisonment being required, the offender should not be required to serve any part of it in actual custody: [63]. Factors, each not in itself exceptional, may in combination demonstrate the circumstances are exceptional: [61]; Griffiths v The Queen (1989) 167 CLR 372 at 379. Also, although a finding in relation to exceptional circumstances is a step in the sentencing process, it is not made in a vacuum and instinctive synthesis remains engaged: [63].

Under s 67(2) Crimes (Sentencing Procedure) Act 1999, an intensive correction order (ICO) is not available for a “prescribed sexual offence” which is defined to include most Commonwealth child sex offences. For further detailed discussion, see Additional sentencing alternatives: s 20AB in [16-030]; Intensive correction orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff and particularly Federal offences at [3-680].

The transitional provision provides ss 16AAA and 16AAB apply where the “relevant conduct” was “engaged in” on or after 23 June 2020: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020, Sch 6, item 3.

The High Court in Hurt v The King [2024] HCA 8 held the transitional provision is concerned with “acts rather than the results of those acts or the circumstances in which they occur”: [12]–[15]; [80]–[81]. Accordingly, the High Court found s 16AAB applied to a s 474.22A(1) offence of possess CAM accessed using a carriage service where the offender had possession of it after 23 June 2020, but accessed some/all of it before that date: [11]; [82]–[84].

The majority in the High Court in Hurt v The King (Edelman, Steward and Gleeson JJ) held a mandatory minimum penalty has the following “double function” in sentencing proceedings:

As the yardstick approach imposes an increased starting point for the appropriate term of imprisonment for a specified offence in the least serious circumstances, it operates to increase the appropriate term of imprisonment generally: Hurt v The King at [50]–[51]; [54].

When mandatory minimum penalty provisions were introduced, the yardstick approach to minimum penalties had been adopted consistently throughout Australia in relation to “people-smuggling offences” in the Migration Act 1958 (Cth): Hurt v The King at [89], citing Bahar v R (2011) 45 WAR 100. In R v Delzotto [2022] NSWCCA 117, one of the decisions appealed to the High Court in Hurt v The King, the Court of Criminal Appeal concluded there is no relevant distinction between the Migration Act 1958 (Cth) provisions considered in Bahar v R and s 16AAB warranting a different conclusion about the applicability of the “Bahar approach”: [89]–[90].

The discounts associated with an offender’s plea of guilty (s 16A(2)(g)) and/or cooperation with law enforcement agencies (s 16A(2)(h)), by up to 25% each, could result in the reduction of an offender’s sentence below the prescribed minimum: Hurt v The King at [103]; ss 16AAB(2), 16AAC(2), (3). This does not detract from the role of the minimum sentence as a yardstick, but rather the process contemplated by s 16AAC reinforces the yardstick role of the minimum sentence: Hurt v The King at [104].

The majority in the High Court stated:

A different approach was taken in Trinh v The King [2024] VSCA 61 at [44] (a post Hurt v The King decision). See also ch 7.3, Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024.

It is unclear whether non-custodial orders under s 19B (bond without conviction) and s 20(1)(a) (recognizance without passing sentence) as well as sentences under s 20(1)(b) (imprisonment where the court directs an offender’s release upon security, including an immediate release in exceptional circumstances) would be available for an offence to which a minimum penalty applies. The majority in Hurt v The King (Edelman, Steward and Gleeson JJ) held it was unnecessary to resolve the issue: [98]–[101]. While the minority (Gageler CJ and Jagot J) held the minimum penalty represents “…Parliament’s view of the least worst possible case warranting imprisonment” and its application “presupposes both conviction and that the court has decided, first, to impose a sentence of imprisonment (thereby excluding s 19B and s 20(1)(a)), and, second, that the sentence of imprisonment is not to be subject to any direction under s 20(1)(b)”: [34]–[35]. See also R v Taylor [2022] NSWCCA 256 at [63]; Bahar v R at [53], both decided before Hurt v The King.

See also Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024, ch 7.3.