In R v Hutchinson [2018] NSWCCA 152 at [45], RA Hulme J (Meagher JA and Button J agreeing) identified the following factors as being relevant to an assessment of the objective seriousness of possessing, disseminating and transmitting CAM:

These are based on the factors set out in Minehan v R [2010] NSWCCA 140 at [94], with two additional factors to account for offending involving engagement with a child victim online, including the age disparity with the victim (factor 10) and whether the offender used deception, including a false persona, to commit the offence (factor 9).

The list of factors is not exhaustive as individual cases can always identify other matters relevant to an assessment of objective seriousness: R v Hutchinson at [46], applied in Burton v R [2020] NSWCCA 127 at [27]; CR v R [2020] NSWCCA 289 at [55]–[56]. Further, the absence of a factor, for example, the offender did not have the purpose of selling the CAM accessed and possessed (factor 5), does not act in mitigation on sentence: R v Porte [2015] NSWCCA 174 at [66].

The definition of CAM in s 473.1 includes sexualized depictions, representations and descriptions of children, which therefore may include:

For an offence concerning CAM where real children are used in its creation, the exploitation of the children involved should be borne in mind when assessing the objective seriousness of the relevant offence. Such exploitation is one reason general deterrence is an important sentencing consideration for such offending: see, for example, R v Booth discussed at [17-760].

This does not mean that CAM made without the direct use of children is considered victimless or harmless. CAM in the form of “fantasy” stories, chatroom discussions and computer-generated images may normalise or encourage others to participate in the activity depicted; fuel the demand for such material; and have the capacity to groom recipients of it: R v Edwards at [60]–[61], [69], [78]; see also Godfrey v The Queen [2013] WASCA 247 at [59] citing Ponniah v The Queen [2011] WASCA 105 at [38]. For these reasons, such CAM is considered harmful, and general deterrence is important for offences of accessing and transmitting it: Wilson v R (Cth) at [85]; R v Edwards at [84].

However, where actual children are not directly used in the creation of CAM, this may (but will not necessarily) justify a finding the offence is in a lower range of seriousness. For example:

Where “fantasy” stories or discussions relate to real rather than imaginary children, the offence may be regarded as more serious: see for example R v LS [2020] NSWCCA 148 involving offences including producing CAM (Crimes Act 1900 (NSW), s 91H(2)) where the married offenders’ children featured in written stories: [136]–[137]; discussed at [17-530].

The use of classification scales is a helpful way to assist a court assess the gravity of the CAM, and the objective seriousness of the offence: R v Porte [2015] NSWCCA 174 at [75]. The Child Abuse Material Interpol Baseline Categorisation contains two categories of CAM:

This classification system does not give a gradation based upon the gravity of the child abuse depicted: Curle v R [2024] NSWCCA 117 at [13].

The Child Exploitation Tracking System (CETS) Scale, which classifies CAM into six categories, depending on its type and seriousness, has also been used to categorise such material: R v Porte [2015] NSWCCA 174 at [16], [73]–[75].

While these categories have been considered helpful in the assessment of the objective seriousness of such offences, all CAM involves the sexual exploitation of children and is capable of possessing significant gravity: R v Porte at [75], [77]; see also R v De Leeuw [2015] NSWCCA 183 at [140]–[141]; DPP v Watson [2016] VSCA 73 at [45]–[46]; R v Edwards [2019] QCA at [79]. CAM classification scales are not legislated and, although they are a useful tool, they cannot overwhelm the assessment of the CAM’s nature as part of assessing the objective seriousness of the conduct: R v Edwards at [79].

It may assist in sentence proceedings for such offences, for the Crown to provide random sample evidence of the material so that something more than a formulaic classification which may not communicate its true nature is before the court: R v Porte [2015] NSWCCA 174 at [114]. Such evidence is permitted under s 289B Criminal Procedure Act 1986. However, where there is an adequate written description of the material, it will not be essential for the judicial officer to view a sample in order obtain a full appreciation of the offence: R v Hutchinson at [49]–[50]; [90]; cf Smit v State of Western Australia [2011] WASCA 124 at [17].

Other matters which may be relevant when assessing the objective seriousness of CAM offences include:

When determining the objective seriousness of grooming and procuring offences, the Court must consider the objective factors listed in s 16A(2) Crimes Act such as the nature and circumstances of the offence (s 16A(2)(a)), additional factors listed in s 474.29AA Criminal Code, and any other relevant objective factor.

For ease of reference, the term “victim” is used when referring to “the person in relation to whom the offence was committed” in s 474.29AA.

The Court must take into account the following objective factors on sentence when “relevant and known”:

Note:

The additional factors in s 474.29AA apply to all offences in Div 474, subdiv F, including online grooming and procuring offences.

Additional factors may also be relevant. For example, in R v Bredal [2024] NSWCCA 75, the Court found the judge’s finding the offender voluntarily discontinued a grooming offence was open on the evidence, a mitigating factor, and one of the matters leading to a finding of exceptional circumstances permitting the offender’s release upon recognizance without serving a period of imprisonment: [79]–[81], [112]; Crimes Act 1914, s 20(1)(b); see further discussion in [17-790] Penalties for some Commonwealth child sex offences.

Grooming or procuring offences are committed when an offender communicates with a person they believe is under 16 years of age: ss 474.26, s 474.27. It does not matter that the person is a fictitious person represented as a real person: s 474.28(9).

The fact the victim is a fictitious person does not constitute a mitigating factor: Kannis v R [2020] NSWCCA 79 at [302]; Meadows v R [2017] VSCA 290 at [12]. In Rampley v R [2010] NSWCCA 293, McLellan CJ at CL (Latham and Price JJ agreeing) stated:

However, the fact communications were with a fictitious person is not irrelevant to assessing the objective seriousness of the offence. In R v Bredal, the Court noted the harm caused by the offence is relevant to assessing the seriousness of the offence: [114]. In Elwdah v R [2024] NSWCCA 150, a case involving an offence of grooming another person to make it easier to commit a procuring offence (s 474.27AA), the offender had communications with a person assuming the identity of the mother of a child, and the Court acknowledged the harm caused by the offending was “arguably reduced which may affect the appropriate level of punishment”: [72]; see also R v Jarrold [2010] NSWCCA 69 at [72] in relation to a NSW procuring offence (Crimes Act 1900 (NSW), s 66EB(3)).

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] referred to in R v Kannis at [304]. In R v Kannis, a victim impact statement also 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].

General deterrence and denunciation are important considerations for offences involving the exploitation of children.

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

In DPP (Cth) v D’Alessandro [2010] VSCA 60, the Court held, in relation to offences of accessing, possessing and transmitting CAM, “the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration”: [21]; see also Lazarus v R [2023] NSWCCA 214 at [76]; Martin v R [2019] NSWCCA 197 at [83]; R v Porte [2015] NSWCCA 174 at [60].

General deterrence applies equally to offences involving CAM where children have not been used directly in its creation, such as computer-generated images or chat-room discussions: R v Edwards [2019] QCA 15 at [63], [86]; see further at [17-740].

General deterrence is also an important sentencing consideration for offences involving predatory conduct online, such as grooming or procuring a person under 16 years for sexual activity: Lazarus v R at [76]; R v Edwards at [63], [86]; DPP (Cth) v D’Alessandro at [21]; see further at [17-750].

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]:

Where grooming or procuring offences do not involve a real child (for example, where a police officer assumes the identity of a child), the need for general and personal deterrence on sentence is not diminished, nor is the offender’s moral culpability for the offence reduced: R v Bredal [2024] NSWCCA 75 at [114]; Elwdah v R at [72]. However, in R v Bredal, the Court suggested it may impact upon the principles of retribution and denunciation as reflected in s 16A(2)(k), that is, the need to ensure adequate punishment: [114]; see further at [17-750].

Generally prior good character will be given limited weight for sexual offences against children, including offences involving child abuse material (CAM): DPP (Cth) v D’Alessandro [2010] VSCA 60; R v Porte [2015] NSWCCA 174 at [126]. However, good character may also be relevant to other subjective factors. For example, in Henderson v The King [2024] ACTCA 3, when resentencing the offender for possessing and transmitting CAM (ss 474.22A(1), 474.22(1) (rep)), the Court took his prior good character into account when assessing his prospects of rehabilitation: [52].

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 [10-660] 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]).

In Clarke-​Jeffries v R [2019] NSWCCA 56, the Court found the criminality of the offender (aged 18) for offences including online soliciting of CAM from a child (aged 15) (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”: [52]; see also Kannis v R.

See also [10-640] Youth for a discussion of sentencing principles relevant to young offenders.

Section 16A(2AAA) of the Crimes Act provides, when determining a sentence or order for a Commonwealth child sex offence, the court must have regard to the “objective of rehabilitating” the offender, including by taking into account, if appropriate, and relevant and known to the court:

The objective of rehabilitating the offender pursuant to s 16A(2AAA) is a materially different consideration to the “prospect of rehabilitation of the offender” pursuant to s 16A(2)(n): Elwdah v R [2024] NSWCCA 150 at [52]; for a discussion of s 16A(2)(n) in relation to Commonwealth child sex offences, see R v Porte [2015] NSWCCA 174 at [71]–[72], and generally, Prospects of rehabilitation: s 16A(2)(n) at [16-025].

Section 16A(2AAA) is a mandatory consideration when sentencing for Commonwealth child sex offences: Elwdah v R at [43]; Darke v R [2022] NSWCCA 52 at [36]. A judge may comply with s 16A(2AAA) without directly mentioning the provision but it must be discernible from the sentencing remarks: Elwdah v R at [45]. There is also no requirement for a judge to identify how a period of imprisonment imposed takes into account the objective of rehabilitation under s 16A(2AAA): Curle v R [2024] NSWCCA 117 at [52].

It is not inconsistent with s 16A(2AAA) for a court to impose a custodial sentence, which may have an adverse impact on an offender’s rehabilitation, where no sentence other than imprisonment is appropriate: Curle v R at [51]–[52]. See also discussion of Proportionality in [17-780] Other sentencing considerations.

If, in sentence proceedings, there is no evidence or submission about the possible availability or duration of the kind of rehabilitation programs referred to in s 16A(2AAA)(b), a judge need not necessarily refer to the sub-section, except possibly to say it was not engaged on the materials before them: see Jbara v R [2025] NSWCCA 83 at [48]. See also [41]–[42] for the Court’s observations regarding the questionable utility of s 16A(2AAA)(b), at the time of sentence, in relation to programs within the prison system.

In Jbara v R, the sentencing judge stated s 16A(2AAA) had been taken into account in determining the length of the sentence of imprisonment: see [38]–[40]. The Court found, although the judge might more accurately have said this was an estimate permitting the completion of a rehabilitation program before the offender’s earliest release date, they did not make a forced extension of the sentence on account of an assumed but unstated time required for a rehabilitation program: [45]–[47].

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 below) and [17-730] Objective factors (including relevant s 16A(2) matters).

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].

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].

When sentencing for multiple federal offences, including when imposing an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999, the sentence must be “just and appropriate”, and accord with the principle of totality: see [17-760]. An aggregate sentence may be imposed for multiple federal offences, where one or more of the offences carries a mandatory minimum penalty: The King v McGregor [2026] HCA 3 at [3], [48]–[49], [58]; [88]–[89]; [109].

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) (amended; see s 16AAC(2)(b)(ii), 3(b)(ii)). 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:

In McGregor v R [2024] NSWCCA 200, the Court (a five-judge bench) held any discount for pleas of guilty and assistance in relation to a mandatory minimum penalty offence are to be applied to the starting point for the sentence (and not to the mandatory minimum penalty): [28], [35]; see also Glasheen v R [2022] NSWCCA 191 at [13]–[14], [29], [32]; R v Delzotto [2022] NSWCCA 117 at [111]. Sections 16AAA and 16AAB do not affect what discount may be allowed, subject to ensuring the final sentence is not reduced to below 75% of the mandatory minimum sentence specified if one of the factors applies, or below 50% if both factors arise: McGregor v R at [33], [35]. The Court of Criminal Appeal’s approach was not questioned in the Crown appeal to the High Court: The King v McGregor [2026] HCA 3.

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.

R v Williams [2025] NSWCCA 63 is an example of a case where the Court found the sentencing judge did not correctly apply the mandatory minimum sentencing provisions, by:

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.