The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders has been repeatedly emphasised by the courts: R v BJW [2000] NSWCCA 60 at [20], cited in authorities including PC v R [2022] NSWCCA 107 at [92]. In R v ABS [2005] NSWCCA 255 at [26], Buddin J (Brownie AJA and Latham J agreeing) said:

In EG v R [2015] NSWCCA 21 at [42], Hoeben CJ at CL (Harrison and RA Hulme JJ agreeing) said:

General deterrence may be no less important where the offending is against older children because “the aim of the offences is to protect children from themselves and those prepared to take advantage of their vulnerability”: R v Dagwell [2006] NSWCCA 98 at [44].

On the other hand, general deterrence and denunciation may require less or no emphasis where an offender is young or a juvenile (JA v R [2021] NSWCCA 10 at [53]–[58]) or suffers from a significant mental condition or cognitive impairment (EG v R [2015] NSWCCA 21 at [42]). See further at Youth and Mental health or cognitive impairment at [17-450].

The principle of totality operates when a court sentences an offender for multiple offences to ensure the overall sentence is “just and appropriate”, and it is applied together with other sentencing principles in the instinctive synthesis process: ZA v R [2017] NSWCCA 132 at [69] applying Markarian v The Queen (2005) 228 CLR 357 at [39]; [51]; Muldrock v The Queen (2011) 244 CLR 120 at [26]. See from [8-200] The principle of totality.

Merely because offences occur during a single episode does not justify the conclusion that the sentences are to be wholly concurrent: Nguyen v R [2007] NSWCCA 14 at [12]; Cahyadi v R [2007] NSWCCA 1 at [12]. For example, in Franklin v R [2013] NSWCCA 122, the offender committed numerous offences of varying degrees of seriousness against the same victim over one evening. The Court found some degree of accumulation of the individual sentences was necessary to reflect the totality of the offending which involved the offender persisting in carrying out additional sexual acts upon a terrified, inexperienced and vulnerable child in his care: [45]–[46].

When criminal offending involves multiple victims, there is a need to ensure sufficient recognition is given to the fact more than one victim has been impacted, whether the offending occurs in a short space of time or over a number of years: R v Wicks [2005] NSWCCA 409 at [49]; R v Katon [2008] NSWCCA 228 at [41] applying R v Knight [2005] NSWCCA 253 at [112]. However, Hoeben J (Allsop P and Hall J agreeing) in R v PFC [2011] NSWCCA 117 at [62] found there is no principle that the sentence for each offence involving a different victim should be at least partially cumulative, and stated:

For a general discussion of the principle of proportionality, see [10-010] Objective seriousness and proportionality.

The totality principle also applies to aggregate sentences of imprisonment imposed under s 53A, although there is no requirement to specify the notional accumulation of separate indicative sentences: Pizzimenti v R [2017] NSWCCA 231 at [12]–[18]. For examples of aggregate sentences imposed for sexual offences against children where the notional accumulation resulted in sentences that failed to reflect the seriousness of offending against separate victims, see R v Crowe [2016] NSWCCA 39 at [93]–[94]; Doyle v R [2014] NSWCCA 4 at [462]. For further discussion of the application of the totality principle to aggregate sentences, see Settled propositions concerning s 53A at [7-507]. See also [8-200]ff.

When sentencing for a “child sexual offence” as defined in s 25AA(5), a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing: s 21B(1), (3). Prior to s 21B’s commencement on 18 October 2022, s 25AA(1) (rep) was to the same effect, and the authorities discussed below in relation to that provision provide guidance as to the application of s 21B(1).

Note: s 21B(1) applies to sentence proceedings for all offences, although there is an exception in s 21A(3) for an offence other than a “child sexual offence” (see [11-337] Section 21B — sentencing patterns and practices).

Section 21B(2) provides the standard non-parole period (SNPP) for an offence is the SNPP, if any, that applied at the time the offence was committed, not at the time of sentencing (for a discussion of SNPPs generally, see [7-890]ff.

Section 21B(1) overrides the common law principle expressed by the majority in R v MJR (2002) 54 NSWLR 368 that a court must apply the sentencing patterns and practices existing at the time of the offence: R v Carey [2024] NSWCCA 90 at [46].

When sentencing, it may be necessary for a court to expressly state an offender has been sentenced in accordance with current patterns and practices: see, for example, R v Cattell [2019] NSWCCA 297, where the Court found the sentencing judge’s failure to refer to s 25AA(1) (rep) led to an inference the section had been overlooked: [116].

Current sentencing patterns may be difficult to discern for some historical offences: R v Cattell at [122]; R v Carey at [51]. For example, in R v Carey, when the offences (contrary to s 66C(2) Crimes Act 1900) were committed, there was no SNPP and the maximum penalty was significantly lower than the maximum penalty at the time of sentencing: [50]–[51]. The Court found comparable cases required two temporal features: first, they must be from the period when the maximum penalty (or SNPP) was the same or similar; and second, they must be decided after the introduction of s 25AA(1) (rep).

Where a historical offence incorporated conduct which is now the subject of separate offences with a significantly higher maximum penalty, the breadth of conduct encompassed by the offence is likely to influence the identification of where it falls in the range of objective seriousness. For example, the offence of indecent assault in s 81 (rep) Crimes Act 1900, which carried a maximum penalty of 5 years, included conduct that would now constitute sexual intercourse. See also O’Sullivan v R [2019] NSWCCA 261 at [36]–[37], [46] in relation to the application of s 25AA(1)–(2) (rep).

When varying or substituting a sentence, a court must vary or substitute the sentence in accordance with the sentencing patterns and practices at the time of the original sentencing: s 21B(4). Section 25AA(1) (rep) did not provide for the variation or substitution of a sentence.

When sentencing for a “child sexual offence” as defined in s 25AA(5), a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts): s 25AA(3). Section 25AA(3), which commenced on 1 December 2018, gave statutory force to the approach taken by the courts since DBW v R [2007] NSWCCA 236 at [39]–[40]: Grange v R [2023] NSWCCA 6 at [106] (Fagan J). Accordingly, authorities from before the provision’s commencement may provide guidance as to its application.

In R v Gavel [2014] NSWCCA 56, the Court (Leeming JA, Johnson and Hall JJ) stated at [110]:

Often there will also be direct evidence of the trauma or harm caused by the offending, including in victim impact statements and evidence from parents and experts (see Victims and victim impact statements at [12-800]). In R v Gavel, the Court appears to have relied upon both the Court’s common experience for such offences together with evidence in a victim impact statement which pointed to “many of the adverse psychological consequences”, to accept the offences would cause long-term harm: [108]–[110], [112]. While in Enriquez v R [2012] NSWCCA 60, the Court found the sentencing judge could “draw on her general experience of offences of this kind and their well-known effects on the development of teenagers and young adults” in the absence of evidence to make findings of long-term psychological harm to the victim: [49]–[51].

Where the form of trauma may not be self-evident, the Crown must identify it and the psychological research, or common experience of the courts, to be invoked: DPP (NSW) v TH [2023] NSWCCA 81 at [61]. For example, in cases where victims are so young and there is no positive evidence they have yet to suffer psychological harm, the court may proceed on the basis of common experience that there may be a “substantial risk of emotional harm” in the future: Grange v R at [11]; R v CTG [2017] NSWCCA 163 at [73]–[76]; DBW v R at [40].

Emotional harm will only be an aggravating factor under s 21A(2)(g) when it is “substantial”, goes beyond the usual harm to be expected from such offences, and is proven beyond reasonable doubt: Culbert v R [2021] NSWCCA 38 at [113], [119]–[120]; see also Substantial emotional harm — s 21A(2)(g) at [17-440] Aggravating factors.

See Good character or lack of previous convictions to assist commission of offence: s 21A(5A), (6) at [17-450].

Section 67(1)(b) provides that an intensive correction order must not be made in respect of a sentence of imprisonment for a “prescribed sexual offence” as defined in s 67(2). For a further discussion of restrictions on the power to make intensive correction orders, see Restrictions on power to make ICO at [3-620].

The maximum penalty and any standard non-parole period (SNPP) for the offence are important legislative guideposts: Muldrock v The Queen (2011) 244 CLR 120 at [27]; see Consideration of the standard non-parole period in sentencing at [7-900] and Maximum penalty at [10-000].

Many child sexual offences are aged-based, with higher maximum penalties applying to offences relating to victims in a younger age group. The maximum penalty reflects Parliament’s view of the seriousness of such offences having regard to a child’s vulnerability to sexual exploitation and its inevitable harm: see for example R v Gavel [2014] NSWCCA 56 at [110]–[112] and R v ND [2016] NSWCCA 103 at [38]–[39] in considering offences contrary to s 66A Crimes Act 1900.

Considering the “frequent” legislative changes in relation to this type of offending, parties in sentencing proceedings have a responsibility to ensure the relevant law, including maximum penalties and any applicable SNPP, “is carefully ascertained and the court properly assisted”: DC v R [2023] NSWCCA 82 at [3]–[4]. See Criminal Trial Courts Bench Book at [5-1300] for a table of NSW and Commonwealth sexual offence provisions which includes the time period the provision was in force, the maximum penalty, and the standard non-parole period (if applicable).

Different forms of intercourse fall within the current definition of “sexual intercourse” in s 61HA Crimes Act (formerly in s 61H (amended)). Likewise, a range of conduct may constitute “sexual touching” in s 61HB, or a “sexual act” in s 61HC.

The fact several categories of intercourse fall within the definition of sexual intercourse in s 61HA does not mean they are as heinous as each other: Ibbs v The Queen (1987) 163 CLR 447 at [4]; R v PGM [2008] NSWCCA 172 at [28]. While some categories of intercourse may generally be regarded as less serious than others, there is no set “hierarchy” because what matters in every case “is the context in which the assault occurs”: R v AJP [2004] NSWCCA 434 at [24]; Cowling v R [2015] NSWCCA 213 at [17]; see also Doe v R [2013] NSWCCA 248 at [54]; Tindall v R [2019] NSWCCA 136 at [12] and the cases there cited. See also Assessing objective seriousness at [20-620] in respect of sexual offences generally.

Likewise, when considering sexual touching or repealed indecent assault offences, a court must consider “the actual character of the assault, including the degree of physical contact involved”: R v PGM at [31] citing GAT v R [2007] NSWCCA 208 at [22].

Whether the offending was motivated by a desire for sexual gratification is a factor to be considered in the assessment of objective seriousness: R v Toohey [2019] NSWCCA 182 at [51]; Essex v R [2013] NSWCCA 11 at [49]; R v Dunn (unrep, NSWCCA, 15 April 1992). It will depend on the circumstances of the case as to whether an absence of a desire for sexual gratification will lessen the seriousness of the offending: R v Toohey at [68].

In some cases, for example, where there is no evidence of sexual motivation for isolated and brief offences, the Court has accepted that the absence of sexual motivation reduced the objective gravity of the offending: RC v R [2020] NSWCCA 76 at [241]; AT v R [2020] NSWCCA 178 at [83]; R v Dunn. However, in ZA v R [2018] NSWCCA 116, the Court found the fact the offender was motivated by his religious beliefs to intentionally procure a child for unlawful sexual activity (ss 66C, 66EB Crimes Act) did not ameliorate the seriousness of the offences: [108]; for a discussion of motive for repealed indecent assault offences, see Aggravated indecent assault and act of indecency: ss 61M–61O (rep) at [17-490].

The age of the victim is likely to be an important factor in determining the gravity of the offence: R v AJP [2004] NSWCCA 434 at [35]; R v KNL [2005] NSWCCA 260 at [42]–[43]; Lipchin v R [2013] NSWCCA 77 at [24]; MLP v R [2006] NSWCCA 271 at [22]. For aged-based offences, it is the relative youth of the child within the age-range encompassed by the offence that may be relevant: Gale v R [2021] NSWCCA 16 at [49]; Versi v R [2013] NSWCCA 206 at [182]; Shannon v R [2006] NSWCCA 39 at [28]; PWB v R [2011] NSWCCA 84 at [12].

The Court of Criminal Appeal has generally accepted that the younger the victim, the more serious the criminality: R v KNL at [42]–[43]; R v Lau [2022] NSWCCA 131 at [116]; cf PWB v R at [103] per RS Hulme J; DN v R [2016] NSWCCA 252 at [103] per Beazley P; see also Vulnerability of the victim — s 21A(2)(l) at [17-440]; Section 21A(2)(l) — the victim was vulnerable at [11-170].

In some circumstances, the offender’s age may bear upon the objective seriousness of the offending: R v AA [2017] NSWCCA 84 at [55]. For example, where the offender’s age and mental condition were causally connected to the commission of the offences, see BM v R [2019] NSWCCA 223 at [17]; applying Tepania v R [2018] NSWCCA 247 at [112] and R v AA at [55]. An offender’s age (advanced age or youth) may also be relevant as a mitigating factor: see [17-450] Mitigating factors.

The disparity in the offender and victim’s ages may also inform the assessment of the objective seriousness of the offence: JA v R [2021] NSWCCA 10 at [62]; R v AA at [55]; R v Nelson [2016] NSWCCA 130 at [25]; [62]–[64]. The age differential may be particularly relevant for offences concerning older children where the extent to which the offender took advantage of the child’s youth is relevant to its gravity: Corby v R [2010] NSWCCA 146 at [77]; Lipchin v R at [23] citing Badgery-Parker J in R v Sea (unrep, NSWCCA, 13 August 1990) at p 4. See Sexual intercourse — child between 10 and 16: s 66C Crimes Act at [17-460] for commentary regarding older child victims and the relevance of an honest but unreasonable belief the child victim was over 16 years of age on sentence.

Comparable cases for individual (or indicative) sentences may be helpful in promoting consistency in sentencing: see, for example, DPP (NSW) v TH at [50]; see also Use of information about sentences in other cases at [10-022].

In addition to the approach detailed in The Queen v Pham (2015) 256 CLR 550 at [28] about the way comparable cases are to be used, ss 21B(1) and 25AA(3) Crimes (Sentencing Procedure) Act 1999 provide a court must, in relation to a “child sexual offence” as defined in s 25AA(5), sentence an offender in accordance with the patterns and practices at the time of sentencing, and apply a current understanding of the harm caused by the offence. In light of significant changes to the offence and sentencing provisions over the years, care must be taken when considering previous decisions and sentences imposed. See also Sentencing patterns and practices: ss 21B, 25AA(5) and Trauma of sexual abuse on children: s 25AA(3), (5) at [17-430].

Objective seriousness is assessed with reference to the features of the offending, and the absence (or lesser presence) of features that would otherwise elevate an offence’s gravity do not act to mitigate it: Wilson J in RA v R [2024] NSWCCA 149 at [110]–[112] citing authorities including Bravo v R [2015] NSWCCA 302 at [45] and Mills v R [2017] NSWCCA 87 at [57].

Examples of absent or lesser factors considered include:

Also, an absence of systematic abuse or grooming (SB v R [2022] NSWCCA 164 at [63]) or abuse of trust (RP v R [2015] NSWCCA 215 at [104] does not reduce the objective gravity of the offending.

While harm to a child victim can be inferred, “substantial” emotional harm for the purposes of s 21A(2)(g) must be proved beyond reasonable doubt: Culbert v R [2021] NSWCCA 38 at [113]; The Queen v Olbrich (1999) 199 CLR 270 at [27]; Gagan (a pseudonym) v R [2020] NSWCCA 47 at [28]. See also Section 21A(2)(g) — the injury, loss or damage caused by the offence is substantial at [11-120].

It has become a matter of common experience in the courts that the adverse psychological effects of sexual abuse on children tend to be long-lasting, and care must be taken to avoid double-counting by finding substantial harm when it is no more than the consequences that typically flow from such offending: Culbert v R at [115] (Adamson J; RA Hulme J agreeing) citing R v Gavel [2014] NSWCCA 56 at [106]. In that case, Adamson J further stated, “[t]he typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate”: [115]; cited in R v Stefanac [2022] NSWCCA 129 at [57]; see also Trauma of sexual abuse on children: s 25AA(3), (5) at [17-430].

In R v Thomas [2007] NSWCCA 269, a Crown inadequacy appeal in relation to robbery offences, Basten JA (Latham J agreeing) accepted a victim impact statement (VIS) could be used to determine the extent of harm to a victim for the purposes of s 21A(2)(g): [36]; cited in Culbert v R at [112] (Adamson J; RA Hulme J agreeing); see also R v MJB [2014] NSWCCA 195 at [52]. However, each case turns on its own facts and, in particular, on the nature of the harm disclosed in the VIS: Gagan (a pseudonym) v R at [29]; see also R v Tuala [2015] NSWCCA 8 at [77]–[81]; Victim impact statements and harm caused by sexual assault at [12-832].

A description of the harm flowing from child sexual offending using strong language such as “substantial(ly)” or “devastating” does not necessarily indicate the sentencing judge made a finding for the purposes of s 21A(2)(g): see for example RA v R [2020] NSWCCA 356 at [93]; GL v R [2022] NSWCCA 202 at [67].

Examples of cases considering the application of s 21A(2)(g) in child sexual offences include:

See also Section 21A(2)(g) — the injury, loss or damage caused by the offence is substantial at [11-120].

The statutory aggravating factor in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 — that the offender abused a position of trust or authority in relation to the victim — may have application to child sexual offences. For a general discussion of s 21A(2)(k), see Section 21A(2)(k) — abuse of a position of trust and authority in [11-160].

A position of trust and a position of authority are distinct concepts: MRW v R [2011] NSWCCA 260 at [77]. An offender may abuse either a position of trust or a position of authority, and in some circumstances, both. Where an offender abuses both a position of trust and authority, these will often be related or overlap: PC v R [2022] NSWCCA 107 at [73].

The statutory aggravating factor in s 21A(2)(l) — that the victim was vulnerable, for example, because they are very young, have a disability, or are geographically isolated — may apply to child sexual offences in some circumstances.

Section 21A(2)(l) is concerned with the vulnerability of a class of victims rather than vulnerability arising from the circumstances of the offence: Du Plessis v R [2024] NSWCCA 164 at [58]–[60]. In Du Plessis v R, the offending occurred in the early morning while the victim was isolated on a dark beach with an adult offender who was purporting to assist her, and this vulnerability was relevant to sentence in relation to the objective seriousness of the offences without invocation of s 21A(2)(l): [51], [70].

For examples of cases involving child sexual offences where s 21A(2)(l) applied because the victim was within a class of people that requires protection, see R v Boulad [2005] NSWCCA 289 at [21] (child with cognitive impairment and mental health condition) and Chamseddine v R [2017] NSWCCA 176 at [55] (deaf child with limited vocal abilities).

It may be difficult to determine whether it is permissible to take vulnerability arising from the child’s age into account as an aggravating factor under s 21A(2)(l): Elyard v R [2006] NSWCCA 43 at [40]–[41]. There are some decisions where courts have held this would constitute impermissible double counting where the offence has an element specifying a range of ages, and vulnerability is an inherent characteristic of the offence: R v Boulad at [21]; R v JDB [2005] NSWCCA 102 at [45]–[46]; R v AJP [2004] NSWCCA 434 at [35]. However, in RJA v R [2008] NSWCCA 137 at [13], Spigelman CJ (Price and McCallum JJ agreeing) stated:

See also Davies v R [2019] NSWCCA 45 at [24] and R v Pearson [2005] NSWCCA 116 at [33]–[35] where the increased vulnerability of younger victims within the age range provided by the offence was considered in the context of the application of s 21A(2)(l).

Nonetheless even if a victim’s age is not taken into account under s 21A(2)(l), it may be relevant to the assessment of objective seriousness as a circumstance of the offence: R v Lau [2022] NSWCCA 131 at [116]; Shannon v R [2006] NSWCCA 39 at [28]; JAH v R [2006] NSWCCA 250 at [25]; R v AJP at [35]; see also Age of victim and offender at [17-435].

Generally, prior good character and a lack of previous convictions are mitigating factors to be taken into account on sentence: s 21A(3)(f), (e) respectively; see generally [11-260], [11-250] respectively. However, s 21A(5A), (6) provides an exception to these provisions for a “child sexual offence” in certain circumstances.

In R v AGR (unrep, 24/7/98, NSWCCA) the Court (BM James J; Mason P; Grove J agreeing) said:

R v AGR has been relied upon for the proposition that for a history of childhood sexual abuse to be taken into account as a mitigating feature of an offender’s subjective case, the fact of the abuse must be established on the balance of probabilities, as must a conclusion that the history of abuse was a contributory factor in the offender’s own offending conduct: KAB v R [2015] NSWCCA 55 at [64]. In that vein, where the evidence does not establish a link between the offender’s experience of abuse and offending, courts have declined to take it into account: see, for example, R v Cunningham [2006] NSWCCA 176 at [67]; Dousha v R [2008] NSWCCA 263 at [47]; KAB v R at [67]. See also RG v R [2025] NSWCCA 36, in which Yehia J (Davies and Lonergan JJ agreeing) at [71]–[78] reviewed a number of authorities on this issue.

In other cases where there is no causal connection, abuse as a child has been taken into account as part of the offender’s subjective circumstances: see, for example, Henry v R [2009] NSWCCA 69 at [15]–[17]; R v Rich [2000] NSWCCA 448 at [48]–[49].

In some cases, the offender’s sexual abuse as a child has been considered within the broader context of a deprived background. In JAH v R [2006] NSWCCA 250, a decision pre-Bugmy v The Queen (2013) 249 CLR 571, the Court found a clear link between the offender’s childhood sexual and physical abuse, his placement into a physically violent foster home and then a succession of refuges, and his abuse of drugs and alcohol, noting he had never received any counselling for the abuse: [45]. The matters should have been taken into account in mitigation and were also relevant to the degree of special circumstances found: [47], [52]; see also [10-470] Deprived background.

In Young (a pseudonym) v R [2022] NSWCCA 111, the offender sexually abused his niece when he was a juvenile, in the context of a family home where the patriarch was physically abusive and sexually abused both the offender and the victim. The Court found the offender’s criminal offending was “a classic Bugmy case where the ‘sins of the father’ had a profound impact not only on his dysfunction later in life but also his offending when he was still a child”: [43]; see also R v AB [2022] NSWCCA 3, a Crown appeal which was dismissed in circumstances where the offender’s “horrific” abuse as a child shaped his emotional and sexual development, and his offending occurred in a “hypomanic state” due to the extreme stress of giving evidence against one of his abusers: [55].

Courts have recognised that it is common for there to be a delay in a victim reporting sexual offences committed against them as children: Young (a pseudonym) v R at [50]. Reasons include those discussed in R v Moon [2000] NSWCCA 534 at [35]; Hornhardt v R [2017] NSWCCA 186 at [53]; Richards v R [2023] NSWCCA 107 at [94]–[95]; PH v R [2023] NSWCCA 176 at [59]; R v Cattell [2019] NSWCCA 297 at [137]. A sexual offence against a child is not necessarily to be considered “stale” where there has been delay in its reporting, as this may be taken to be a consequence of the nature of the offending: Wilson v R [2017] NSWCCA 41 at [48]; Richards v R at [4], [94].

Nonetheless, delay may be a mitigating factor on sentence in some circumstances. For example, an offender may be able to demonstrate good prospects of rehabilitation when there has been no further offending during a delay (see Delay and rehabilitation below). Also, a delay may cause the offender some form of detriment: see discussion of R v Todd [1982] 2 NSWLR 517 at 519, approved in Mill v the Queen (1988) 166 CLR 59 at 66), in Delay at [10-530].

The offender bears the onus of establishing delay as a mitigating factor: Richards v R at [85].

Advanced age may be relevant to a sentence to be imposed for sexual offending against a child. For example, in R v Holyoak (1995) 82 A Crim R 502 at 10, the Court held consideration should be given to how a sentence of imprisonment may “bear the more heavily because of [the offender’s] very age and the real risk that he will never walk free”. However, there is no principle the offender should not be sentenced to a term that would result in them spending the rest of their life in gaol: R v Gallagher (1995) 82 A Crim R 502 citing R v Holyoak; see also “Crushing” sentence at [17-420].

For example, in GS v R [2016] NSWCCA 266, involving an offender who was 67 years of age when sentenced for three historical offences of aggravated indecent assault against two victims (s 61M(2) (rep) Crimes Act) with additional offences taken into account on a Form 1, Fagan J (N Adams J agreeing) stated at [99]–[100]:

See also Wright v R [2016] NSWCCA 122, where the Court declined to receive fresh evidence that an elderly offender serving a term of imprisonment for historical sexual offences against his stepdaughter had been diagnosed with Alzheimer’s disease: [84]. The Court found the sentence, which took into account his advanced age and multifactorial health issues, already represented “a lenient outcome when regard is had to the gravity of the offender's offending and the enduring harm that it caused”: [86]; see also [10-430] Advanced age and [10-450] Health.

For a detailed discussion of the provisions and principles applicable to sentencing children and young adults generally, see:

[15-000] Children (Criminal Proceedings) Act 1987, particularly:

[10-400] Subjective matters, particularly:

The fact a juvenile offender is to be sentenced at law does not diminish the significance of their youth: LS v R [2020] NSWCCA 120 at [58]. The general provisions in the Children (Criminal Proceedings) Act 1987 concerning the treatment of children under criminal law, including s 6, apply: Campbell v R [2018] NSWCCA 87 at [26]–[29]; LS v R at [58].

In JA v R [2021] NSWCCA 10, the Court held the offender’s age was relevant to assessing objective seriousness, the offender’s subjective features, and for balancing issues of rehabilitation and specific and general deterrence. Moreover, the sentencing judge was entitled to have full regard to the offender’s young age at the time of the offending to conclude his brain would not have matured, and that he would likely have had difficulty controlling impulses, especially sexual impulses: [58].

For an offender who is sentenced as an adult for juvenile offending, the possibility the offences may have been dealt with by a more lenient sentencing regime may be relevant to sentence: WW v R [2023] NSWCCA 311 at [76]. Courts have accepted that s 25AA(1) (rep — now s 21B), which requires an offender to be sentenced in accordance with current patterns and practices, does not prohibit taking a different sentencing regime into account: WB v R [2020] NSWCCA 159 at [80]; JA v R at [62]. The relevance to sentence will depend on the circumstances of the case, for example:

In some circumstances an offender’s age may be relevant to the assessment of objective seriousness: see Age of victim or offender at [17-435].

An offender’s mental health or cognitive impairment may be taken into account on sentence in a number of respects, including the assessment of moral culpability and the weight to be given to sentencing principles such as general deterrence and the protection of the community: see generally [10-460] Mental health or cognitive impairment.

It is not unusual for child sexual offenders to be diagnosed with a paraphilic or paedophile disorder. If such a diagnosis bears on the determination of sentence, it may be a “double-edged sword”: see, for example, McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [40]–[42]. In Grange v R [2023] NSWCCA 6, the Court held it was open for the sentencing judge to find the offender’s pedophilic disorder warranted a “modest” reduction to his moral culpability but that he had “guarded prospects” of rehabilitation: [85]–[86], [88]; see also DPP (Cth) v Beattie [2017] NSWCCA 301 at [202]–[205] concerning Commonwealth child sex offences.

It is not uncommon for courts to evaluate psychiatric or psychological evidence when sentencing offenders for child sexual offences. For example, in LS v R [2020] NSWCCA 120, the offender was a juvenile who had severe autism, ADHD and other disorders. His offending, including the production of child abuse material (ss 66A, 91H(2) Crimes Act 1900), was motivated by a need to obtain the approval of “friends” in an internet chat group. The Court held, while the offending was serious, there were powerful countervailing factors which mitigated to a substantial degree his moral culpability and the weight to be given to general deterrence: [8]; [71]; [104]–[105]. Also, the offender’s youth required emphasis be given to rehabilitation and the Court assessed his prospects of rehabilitation as “good, if not excellent” considering medical evidence he had “grown out” of his previous interests: [8]; [61], [70]; see also Youth above.

As to the relevance of an offender’s mental condition for standard non-parole period offences, see Mental condition in What is the standard non-parole period? at [7-890].

Extra-curial punishment is “some serious loss or detriment” suffered as a punishment upon the offender for committing the offence, other than the punishment imposed by a court of law; it is not the public condemnation that follows conviction for serious crime: Melville v R [2023] NSWCCA 284 at [80] citing R v Daetz; R v Wilson [2003] NSWCCA 216; Silvano v R [2008] NSWCCA 118 at [29]; see generally [10-520] Extra-curial punishment.

In Wanstall v R [2024] NSWCCA 167, the Court recognised there have been different views as to the significance of adverse publicity and public humiliation, as well as a divergence of views about the significance of the loss of an offender’s career in sentencing: [38], [41]–[48] respectively. In that case, the loss of the offender’s career because of offending which was not committed in the course of his employment was considered “significant extra-curial punishment”: [49].

Section 24A(1) provides that, in sentencing an offender, the court must not take into account, as a mitigating factor, the fact the offender has or may become:

Treating the matter of registration as a factor in mitigation contrary to s 24A constitutes error: R v PC [2022] NSWCCA 59 at [39].

It is not to be assumed that time spent in protective custody will be more onerous than in the general population, and an offender seeking a benefit for time in protection must adduce evidence of what the conditions entail: R v Durocher-​Yvon (2003) 58 NSWLR 581 at [23]–[24]; Clinton v R [2009] NSWCCA 276 at [24]; R v Way (2004) 60 NSWLR 168 at [176]–[177]; R v Jarrold [2010] NSWCCA 69 at [27]–[28]; RWB v R [2010] NSWCCA 147 at [192]; Miller v R [2015] NSWCCA 86 at [31]; see Hardship of custody at [10-500] and What time should be counted? at [12-510].

In BR v R [2021] NSWCCA 279, the Court held it was inappropriate for the sentencing judge to have rejected a submission of hardship in protective custody on the basis the offender was in no different position to any other child sexual offender: [147]; citing Zahab v R [2021] NSWCCA 7 at [48]. Moreover, although the offender’s evidence about the restrictions on protection was not detailed, he was entitled to it being taken into account in a general sense: [148].

From 29 June 2015, the maximum penalty for an offence contrary to s 66A(1) Crimes Act 1900, being sexual intercourse with a child under the age of 10 years, is life imprisonment. A standard non-parole period (SNPP) of 15 years applies.

In RC v R [2020] NSWCCA 76, Wilson J (R A Hulme and Hamil JJ agreeing) said at [247]:

Further, in Gibbons (a pseudonym) v R [2019] NSWCCA 150, Simpson AJA (Lonergan J agreeing) observed, in relation to the legislative history of s 66A(2), the progressive amendments to such offending and the increase in maximum penalties must be reflected in penalties imposed: [58]–[59].

Section 66A has taken on different forms since its inception. Of note, for offences committed between 1 January 2009 and 28 June 2015, the provision was split into two forms:

For details of past iterations of the s 66A offence, see Criminal Trial Courts Bench Book at [5-1300] Table — NSW and Commonwealth sexual offence provisions.

Section 66A Crimes Act is concerned with the protection of the vulnerable from sexual exploitation and violation. While the age of the victim is an important consideration in assessing objective seriousness, the entire class of children under the age of 10 years is vulnerable: MLP v R [2014] NSWCCA 183 at [22]. Where the age of the victim is far removed from the statutory ceiling of 10 years it may be described as “a highly aggravating factor”: SW v R [2013] NSWCCA 255 at [47]; see also Age of victim and offender at [17-435].

In R v Toohey [2019] NSWCCA 182 the Court observed that a cautious approach to comparable cases is heightened with respect to s 66A(2) (amended) Crimes Act offences as there are no single unifying features which mark out a “typical” offence, given the broad range of circumstances in which these offences can be committed: [90]; citing MLP v R at [44], [48]–[51]. This reasoning would appear to be equally applicable to the current form of s 66A Crimes Act; see also Comparable cases at [17-435].

In its current form, an offence contrary to s 66B has a maximum penalty of 25 years imprisonment and a SNPP of 10 years.

In R v McQueeney [2005] NSWCCA 168, in relation to an offence against s 66B, the Court said at [25]–[26]:

Section 66C contains four separate offences:

The SNPPs apply to offences committed on or after 29 June 2015.

In some cases, courts have accepted the offender held an honest but unreasonable belief the child victim was 16 years or older. While this belief may have some impact on the sentence, the actual age of the victim remains a critical factor in determining the gravity of the offence: R v KNL [2005] NSWCCA 260 at [42]–[43], [48]; Corby v R [2010] NSWCCA 146 at [75]–[77]. This is because offences of this nature seek to protect children from themselves and others: Corby v R at [77].

The absence of consent is not an element, or inherent, in offences against s 66C: Bell v R [2019] NSWCCA 251 at [34]. Whether the complainant was a willing participant is relevant to the level of objective seriousness: Hogan v R [2008] NSWCCA 50 at [77]; Wakeling v R [2016] NSWCCA 33 at [47]. However, in Bell v R the Court explained at [33]:

The notion of “consensual” activity in relation to a s 66C offence is entirely inapposite: ZA v R [2018] NSWCCA 116 at [105]. The activity might better be described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence, and even where the activity is not opposed by the victim, it will be damaging: R v Nelson [2016] NSWCCA 130 at [23]; ZA v R at [105]; Bell v R at [29]–[31]; R v Stefanac [2022] NSWCCA 129 at [60].

Section 66EA(7) provides:

The High Court in Xerri v The King [2024] HCA 5 confirmed s 66EA applies retrospectively: [11], [21], [25]–[28], [40], [58], [60(h)], [65]; s 66EA(7). In Xerri v The King, the appellant engaged in the offending conduct before 1 December 2018 but was prosecuted for the current s 66EA offence. The Court held s 19 Crimes (Sentencing Procedure) Act did not apply to retain the previous maximum penalty of 25 years imprisonment as the current s 66EA did not merely amend the former offence but created a “new offence”, with different factual ingredients and elements: [41], [65], [15], [22], [32].

Note: As the current s 66EA is a “new offence”, and one with substantial differences to the pre-1 December 2018 offence, care should be taken in seeking to apply decisions in relation to the former s 66EA offence to the current s 66EA offence: see, for example, RA v R [2024] NSWCCA 149 at [101]; R v Fisher [2024] NSWCCA 191.

An “unlawful sexual relationship” is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period: s 66EA(2). At least one of those acts must have occurred in NSW: s 66EA(3). “Unlawful sexual act” is defined in s 66EA(15) as any act that constitutes, or would constitute, one of the sexual offences listed.

Section 66EA requires proof of the existence of a relationship “in which” two or more unlawful sexual acts were committed: MK v R; RB v R [2023] NSWCCA 180 at [1]; [3], [6], [99]–[100]; [122]; [123]; [124]. What converts “a relationship” into an “unlawful sexual relationship” is the commission of two or more unlawful sexual acts in the course of that relationship (“in which”): MK v R; RB v R at [18], [95]; Decision Restricted [2023] NSWCCA 2 at [15] per Basten AJA. Typically, that may involve an established relationship such as parent and child, teacher and student or coach and player, which is corrupted by the commission of two or more unlawful sexual acts within that relationship: MK v R; RB v R at [95]. In some cases, the “relationship” might be something that arises from the facts and circumstances of the commission of the unlawful sexual acts themselves so that the provision “excludes from the scope of the offence a person who commits unlawful sexual acts with a child with whom he or she has no relationship”: MK v R; RB v R at [95].

Section 66EA(5) provides, for the accused to be convicted —

The prosecution is also not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence: s 66EA(4)(a).

Section 66EA(4), (5) apply to sentencing for s 66EA offences, particularly as a sentencing judge’s findings of fact must be consistent with the jury’s verdict: MK v R at [85]. In determining the facts, the sentencing judge is not required to identify individual ingredient offences: MK v R at [68], [85]; RA v R [2024] NSWCCA 149 at [85], [92], [99]; see also R v RB [2022] NSWCCA 142 at [43]–[44].

Sentencing judges are required to take into account any conduct that occurs within the period of the offence as charged that would amount to an offence of the nature listed in s 66EA(15), whether or not the individual instances of the offending conduct can be identified, enumerated or particularised: RA v R at [99]–[100]; see also R v Fisher [2024] NSWCCA 191 at [114]; R v Lamey [2025] NSWCCA 17 at [125]. However, it is preferable, in the interests of fairness and transparency, for the Crown to particularise in the indictment, to the extent able, the particular acts relied on: Nolan v R [2024] NSWCCA 140 at [1]; [3]–[9]; [37].

Further, the fact-finding exercise is not constrained by a need to find individual instances of offending proved beyond reasonable doubt, and may involve a finding as to frequency: R v Lamey at [125]–[127].

See also [1-440] Fact finding following a guilty verdict.

When sentencing for a s 66EA offence, a consideration of the conduct constituting the unlawful sexual acts towards the child is integral to the assessment of objective seriousness: GP (a pseudonym) v R [2021] NSWCCA 180 at [65]. The offence potentially embraces a wide range of circumstances: Towse v R [2022] NSWCCA 252 at [13].

Factors bearing upon an assessment of the objective seriousness of a s 66EA offence include:

For s 66EA offences constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments (1 December 2018), the court must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in during the period of the unlawful sexual relationship: s 66EA(8).

It is not logical to approach the sentencing task by considering what sentences the unlawful sexual acts would have attracted had they been charged as isolated offences: GP (a pseudonym) v R at [89] (regarding the current s 66EA) applying R v Fitzgerald (2004) 59 NSWLR 493 (regarding the former s 66EA).

R v Manners [2004] NSWCCA 181 at [21], R v Fitzgerald at [13] and ARS v R [2011] NSWCCA 266 at [226] discuss the former s 66EA and sentencing for representative counts. Hitchen v R [2010] NSWCCA 77 is a case where the Court accepted the sentencing judge’s finding that the criminality of a former s 66EA offence was found to be in the worst category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256); see [10-005] Cases that attract the maximum); see also Hitchen v R at [11]–[14].

There were several amendments to s 61M before its repeal. Of note:

For the maximum penalties see Criminal Trial Courts Bench Book at [5-1300] Table — NSW and Commonwealth sexual offence provisions.

In Corby v R, the offender, then 39-years-old, had sent three images over three days of his erect penis to a 14-year-old girl, contrary to s 61N (rep). The Court held whether the act of indecency occurs in the physical presence of the victim is relevant to an assessment of the objective seriousness and, ordinarily, an offence will be more serious if the offender is in the victim’s physical presence: [84]. In that matter, that the offence was repeated over a number of days and the images remained available to the victim escalated the criminality: [86].

Conduct falling under s 91D(1)(a) — causing a child to participate in an act of child prostitution — is not necessarily less serious than conduct falling under s 91D(1)(b) — participating as a client with a child in an act of child prostitution: Salvatore v R [2009] NSWCCA 104 at [21]. It will depend on a consideration of the facts of each individual case: R v Darwich [2018] NSWCCA 46 at [84]–[85].

In R v Romano [2004] NSWCCA 380, the Court found the sentencing judge, in setting a sentence close to the maximum, erred in characterising a s 91D(1)(a) offence as “in many ways … analogous to a violent aggravated sexual assault in terms of its effect on the community and particularly on the girl”: [24]–[25], [27]. However, in determining that no lesser sentence was warranted, the Court had regard to matters including the level of premeditation (extending to instructions about false identity, the provision of clothing, specification of price and services and selection of venues), and that the offender knew he exposed the victims to significant physical danger: [28]–[29].

In R v Darwich, a Crown appeal, the Court also pointed to the degree of planning as a relevant (albeit not determinative) factor in assessing the objective seriousness of offences against s 91D(1)(b): [87]. In that case, the Court found, that the offender was motivated to specifically seek out children as prostitutes may point to a finding of greater objective seriousness than one in which the offender did not seek out a child under the age of 18 years: [87]. In response to the sentencing judge’s finding that there was no coercive conduct on behalf of the offender, the Court said at [98]:

Similarly, it is not a mitigating factor that a child prostitute evinces willingness to provide sexual services; if a child prostitute appeared to the client to be unwilling, that would be an element of aggravation: R v Toma [2018] NSWCCA 45 at [18]. Given the breadth of conduct captured by the definition of “act of child prostitution”, the type of sexual service provided is another relevant factor when assessing the objective seriousness of an offence against s 91D(1)(b): R v Darwich at [104].

The courts have taken different approaches to sentence proceedings involving an overlap in the factual matters relied upon for a s 91F offence and another child prostitution offence: see, for example, R v Hilton [2005] NSWCCA 317 at [19]–[21]; Glover v R [2016] NSWCCA 316 at [53]–[58].

A person commits an offence under s 91G(1)–(2) if they use a child for the production of CAM, cause or procure a child to be so used, or consent to a child in their care being so used. Section 91G(3) is an aggravated offence, where a s 91G(1), (2) offence is committed in the prescribed circumstances of aggravation in s 91G(3A).

Case examples relating to the assessment of objective seriousness for s 91G offences include:

Where the s 91G offences involved the offender recording their sexual assault of a child and those assaults are the subject of separate charges, the overall sentence imposed must reflect the totality of the offending without doubly punishing the offender for the common elements between offences: Pearce v The Queen (1998) 194 CLR 610 at [40].

For example:

An offence against s 91H(2) is not restricted to CAM produced with an actual child, but may also include CAM comprised of drawings, discussions and computer generated images. Whether CAM constituted by drawings or discussions is the product of fantasies or a retelling of actual events is irrelevant: R v Jarrold [2010] NSWCCA 69 at [53]. However, if no actual children are used in the production of offending material, this may be relevant to the assessment of objective seriousness: Minehan v R [2010] NSWCCA 140 at [94]. Nonetheless in R v LS [2020] NSWCCA 148, the written description of sexual acts related to the married offenders’ children and, as it concerned real children, who were also under the offender’s protection, the Court held the offending must be regarded as more serious than those involving imaginary children: [136]–[137].

See also [17-750] Child abuse material offences — possess, disseminate and transmit.