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Sexual offences against children

[17-400] Change in community attitudes to child sexual assault
Increased penalties
[17-410] Sentencing for offences committed many years earlier
[17-420] Statutory scheme in the Crimes Act 1900 (NSW)
Table 1: Sexual offences against children under the Crimes Act 1900
[17-430] Standard non-parole periods
[17-440] Section 21A Crimes (Sentencing Procedure) Act 1999
[17-450] De Simoni principle
[17-460] Victim impact statements
[17-480] Sexual intercourse — child under ten: s 66A
Attempting or assaulting with intent to have sexual intercourse with child under 10: s 66B
[17-490] Sexual intercourse — child between 10 and 16: s 66C
[17-500] Persistent sexual abuse of child: s 66EA
Fact finding following a guilty verdict
[17-505] Aggravated sexual assault: s 61J
[17-510] Aggravated indecent assault: s 61M
“Worst category” cases
Section 61M(2)
[17-520] Act of indecency: s 61N
Aggravated act of indecency: s 61O
[17-530] Sexual intercourse with child between 16 and 18 under special care: s 73
[17-535] Procuring or grooming: s 66EB
[17-540] Child sexual servitude and prostitution
Child prostitution
[17-541] Child abuse/pornography offences
State offences
Commonwealth offences
Sentencing principles
Specific offences
[17-543] Voyeurism and related offences
Voyeurism: s 91J
Filming a person engaged in a private act: s 91K
Filming a person’s private parts: s 91L
[17-545] Incitement to commit a sexual offence
[17-550] Intensive correction order not available for a “prescribed sexual offence”
[17-560] Other aggravating circumstances
Breach of trust
[17-570] Mitigating factors
The issue of consent
Good character
Offender abused as a child
Delay
Pre-Trial Diversion of Offenders Program
Possibility of summary disposal
Health
Age
Intellectual handicap/mental disorder
Offender undertakes treatment
Extra-curial punishment
Hardship of custody for child sex offender

This chapter should be read in conjunction with Sexual assault at [20-600]ff.

To top [17-400] Change in community attitudes to child sexual assault

The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW (2000) 112 A Crim R 1 at [20], where Sheller JA stated:

“The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154.”

The case of R v Fisher (1989) 40 A Crim R 442 at 445 is also frequently cited:

“This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …

This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …”.

Tampering with children of tender years is a matter of grave concern to the community: R v Evans (unrep, 24/3/88, NSWCCA).

The courts have recognised a change in community attitudes to child sexual assault. In R v MJR (2002) 54 NSWLR 368 at [57], Mason P expressed the view that there has been a pattern of increasing sentences for child sexual assault and that this:

“… has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes”.

Increased penalties

See also Sexual assault at [20-610].

In R v ABS [2005] NSWCCA 255 at [26], Buddin J, with whom Brownie AJA and Latham J agreed, said:

“Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance.”

According to R v PGM (2008) 187 A Crim R 152 at [37], the seriousness with which sexual offences against young children must be viewed is reflected in the increase in the maximum penalty for s 66A Crimes Act 1900 offences from 20 to 25 years (effective 1 February 2003) and the introduction of a standard non-parole period of 15 years: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002.

To top [17-410] Sentencing for offences committed many years earlier

In a significant number of child sexual assault cases there is a delay between the commission of the offence and date that the offender is ultimately sentenced. The question of whether the sentencing patterns that existed at the time of the offence should be applied or the more severe recent patterns of the offence at the later date of the conviction, was resolved by the specially constituted five-judge bench of the Court of Criminal Appeal (Mason P dissenting) in R v MJR (2002) 54 NSWLR 368. It held at [31] that a court is:

“… to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender”.

The decision overruled the earlier decision of R v PLV (2001) 51 NSWLR 736 which held precisely the opposite. Obvious practical difficulties arise in ascertaining what the sentencing practice was a number of years ago. In R v PLV at [108], Smart AJ said he himself “would not have difficulty in recalling the approach of the courts”, but conceded that:

“… if there is no substantial evidence as to that practice and the sentencing judge is not aware of them then they obviously cannot be taken into account”.

Resort to bare statistical material to ascertain sentencing practice will in most cases not be helpful. The court’s solution to this shortage of relevant information appears in R v Roberts [2003] NSWCCA 309, where Howie J said at [20]:

“In those circumstances it is necessary to approach the matter in the way that I suggested in R v Moon (2000) 117 A Crim R 497 at 511 and which was approved by this court in R v MJR (2002) 130 A Crim R 481 at [107] by Sully J (with whom the other members of the court agreed). I said:

‘The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence … and be proportional to the criminality involved in the offence committed … Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.’”

In R v EGC [2005] NSWCCA 392, the applicant was charged with multiple counts of sexual intercourse with a person under 10 years of age contrary to s 66A Crimes Act 1900 and aggravated indecent assault of a person under the age of 16 under his authority contrary to the repealed s 61E(1A). The offences were committed between 1986 and 1988. It was accepted that there is no reliable statistical data available in respect of offences under ss 66A and 61E(1A) committed between 1986 and 1988, and that the correct approach was Howie J’s in R v Moon (2000) 117 A Crim R 497 at [41].

In MJL v R [2007] NSWCCA 261, Smart AJ said at [53]–[54] that R v MJR (2002) 54 NSWLR 368 does not require a “mechanistic approach” to earlier practice:

“I do not favour an approach that goes back to 1974–1982 and endeavours to predict what the court would have concluded would happen as to rehabilitation and/or non commission of other similar offences when there is material available as to those matters of what has happened. Fact rather than prediction and speculation is preferred.”

The court in MJL v R noted at [24] that the approach taken in R v MJR had been developed further in AJB v R (2007) 169 A Crim R 32. In AJB v R at [32], the court held that sentencing according to past practices did not require the court to reduce the sentence on account of an executive policy of remissions that might have been applied to the applicant had he been sentenced in 1982: R v Moon applied at [30]–[31]. However, the statutory sentencing regime applicable to the old offending may itself justify a finding of special circumstances, quite apart from other subjective features which may have done so: at [37]. Applying AJB v R at [27] and [42], the court in MJL v R held that the changes to the calculation of non-parole periods constituted special circumstances.

In Dousha v R [2008] NSWCCA 263, it was common ground on sentencing and on appeal that there was no statistical data available to indicate any pattern of sentencing between 1986 and 1989: at [31]. The applicant sought to rely instead on non-statistical data provided in the form of four cases to show that between 1986 and 1989 sentences were generally lower than the sentences imposed currently for similar conduct. However, the cases did not reveal any pattern given the number of cases and their marked dissimilarity both from each other and the applicant’s case: at [40]. In the process of considering these cases the court explained at [42]:

“[Featherstone v R (2008) 183 A Crim R 540] is not authority for the proposition that whenever a small number of cases are presented a sentencing judge should be able to discern a sentencing pattern. To the contrary. It is simply a statement by the court that on that particular occasion, and having regard to the information placed before it, a pattern could be discerned.”

In the absence of statistical and non-statistical data, the sentencing judge was obliged to follow the approach settled in R v MJR: at [43].

RS Hulme J in PWB v R [2011] NSWCCA 84 annexed to His Honour’s reasons a copy of the summary of pre-1999 cases involving breaches of ss 61E and 61M(2) prepared by the Judicial Commission of NSW. The summary, according to RS Hulme J, suggested “a lower sentencing regime than presently exists”: PWB v R at [74]. While RS Hulme J could not derive, from the summary or the cases, any sentencing pattern for offending such as the Applicant’s, he adopted “… the normal sentencing approach having regard to the statutory provisions relevant to the particular time — see R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70]–[71]; R v MJR [2002] NSWCCCA 129; 54 NSWLR 368 at [107]”; PWB v R at [75]. Beazley JA found “the research undertaken by Hulme J is most valuable and has greatly assisted me in the determination of the sentence”: PWB v R at [4].

To top [17-420] Statutory scheme in the Crimes Act 1900 (NSW)

Table 1 lists the provisions in the Crimes Act 1900 which create sexual offences against children.

Sections 61L and 61M(1) are sexual offences of general application that, in their standard form, apply both to adults and children (see s 77, discussed below). Sections 61N(1), 61O, 66A–66EB, 73, and 91G–91H Crimes Act 1900 specifically and exclusively pertain to sexual offences against children. Sections 61J, 61M(1), 61M(2), 80A(2A)(b), 80D(2) and 91J–91L pertain to sexual offences against children by way of aggravation.

Before the commencement of the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 on 17 September 2010, the Crimes Act 1900 defined “child pornography” as material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to a reasonable person, a person who is (or appears to be) a child:

(a) 

engaged in sexual activity

(b) 

in a sexual context, or

(c) 

as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

For offences committed from 17 September 2010, such material, which is now more broadly defined, is referred to as “child abuse material” and is defined in s 91FB(1).

Table 1: Sexual offences against children under the Crimes Act 1900

Section

Offence

Max (yrs)[*]

Commentary

s 61J(1)

Aggravated sexual assault

20 [SNPP 10] [17-505]
s 61M(1) Aggravated indecent assault 7 [SNPP 5] [17-510]
s 61M(2) Aggravated indecent assault — child under 16 years 10 [SNPP 8] [17-510]
s 61N(1) Act of indecency — child under 16 years 2 [17-520]
s 61N(2) Act of indecency — person 16 years or above 1.5 [17-520]
s 61O(1) Aggravated act of indecency — child under 16 years 5 [17-520]
s 61O(1A) Aggravated act of indecency — person 16 years or above 3 [17-520]
s 61O(2) Aggravated act of indecency — child under 10 years 7 [17-520]
s 61O(2A) Aggravated act of indecency — child under 16 years (knowing it to be filmed for producing child abuse (previously “child pornography”) material) 10 [17-520]
s 66A(1) Sexual intercourse — child under 10 years 25 [SNPP 15] [17-480]
s 66A(2) Aggravated sexual intercourse — child under 10 years life [SNPP 15] [17-480]
s 66B Attempting or assaulting with intent to have sexual intercourse with child under 10 years 25 [17-480]
s 66C(1) Sexual intercourse — child between 10 and 14 years 16 [17-490]
s 66C(2) Aggravated sexual intercourse — child between 10 and 14 years 20 [17-490]
s 66C(3) Sexual intercourse — child between 14 and 16 years 10 [17-490]
s 66C(4) Aggravated sexual intercourse — child between 14 and 16 years 12 [17-490]
s 66D Attempting or assaulting with intent to have sexual intercourse with child between 10 and 16 years as per s 66C(1) or s 66C(3)
s 66E Alternative verdicts available n/a
s 66EA Persistent sexual abuse of a child 25 [17-500]
s 66EB(2)(a) Procuring child for unlawful sexual activity — child under 14 years 15 [17-535]
s 66EB(2)(b) Procuring a child for unlawful sexual activity — child under 16 years 12 [17-535]
s 66EB(3)(a) Grooming a child for unlawful sexual activity — child under 14 years 12 [17-535]
s 66EB(3)(b) Grooming a child for unlawful sexual activity — child under 16 years 10 [17-535]
s 73(1) Sexual intercourse with child above 16 years and under 17 years who is under special care 8 [17-530]
s 73(2) Sexual intercourse with child above 17 years and under 18 years who is under special care 4 [17-530]
s 80A(2A)(b) Aggravated sexual assault by forced self-manipulation 20 [20-720]
s 80D(2) Aggravated causing sexual servitude 20 [17-540]
s 80G Incitement to commit a sexual offence Same as penalty for substantive offence [17-545]
s 91D(1) Promoting or engaging in acts of child prostitution — child 14 years or above 10 [17-540]
s 91D(1) Promoting or engaging in acts of child prostitution — child under 14 years 14 [17-540]
s 91E(1) Obtaining benefit from child prostitution — child 14 years or over 10 [17-540]
s 91E(1) Obtaining benefit from child prostitution — child under 14 years 14 [17-540]
s 91F(1) Premises not to be used for child prostitution 7 [17-540]
s 91G(1) Children not to be used for production of child abuse (previously “child pornography”) material — child under 14 years 14 [17-541]
s 91G(2) Children not to be used for production of child abuse (previously “child pornography”) material — child 14 years or above 10
s 91H(2) Possession, production or dissemination of child abuse (previously “child pornography”) material 10 [17-541]
s 91J(1) Voyeurism 100 penalty units or 2 years or both [17-543]
s 91J(3) Aggravated voyeurism 5 [17-543]
s 91K(1) Filming a person engaged in a private act 100 penalty units or 2 years or both [17-543]
s 91K(3) Aggravated filming a person engaged in a private act 5 [17-543]
s 91L(1) Filming a person’s private parts 100 penalty units or 2 years or both [17-543]
s 91L(3) Aggravated filming a person’s private parts 5 [17-543]

[*] SNPP: Standard non-parole period

The offences in Table 1, with the exception of those created under s 73, reflect the fact that the Crimes Amendment (Sexual Offences) Act 2003 standardised the age of consent for both males and females at 16 years. Section 77 explicitly states that consent is not a defence to a charge under ss 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A(1), 66A(2), 66B, 66C, 66D, 66EA, 66EB and 73, or to a charge under s 61M(1) if the victim is a child under 16 years. Consent is also not a defence to a charge under s 91D: s 91D(3).

On conviction of a person for a sexual offence against a child, the court may refer the matter to an appropriate child protection agency if the child is under the authority of the offender: s 80AA.

To top [17-430] Standard non-parole periods

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 introduced standard non-parole periods, as detailed in Table 1 at [17-420].

The effect of the introduction of standard non-parole periods will generally be an upward movement in the length of sentences for offences to which they apply: Muldrock v The Queen (2011) 244 CLR 120 at [31]; R v AJP (2004) 150 A Crim R 575 at [37]. In R v AD [2005] NSWCCA 208 at [43], Howie J said when dealing with a severity appeal for a s 61J Crimes Act 1900 offence:

“… the judge in the present matter was obliged to have regard to the standard non-parole period of 10 years even though it was not applicable to the applicant’s case. In R v AJP [2004] NSWCCA 434 it was made clear that the effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies. If the provisions prescribe a standard non-parole period of 10 years as against a maximum penalty of 20 years, as is the case with an offence under s 61J, it follows that the head sentence must exceed half the maximum penalty for the offence notwithstanding that the offence is one of only mid-range seriousness”.

See further Move upwards in the length of non-parole periods? at [7-990].

To top [17-440] Section 21A Crimes (Sentencing Procedure) Act 1999

Section 21A was inserted into the Crimes (Sentencing Procedure) Act in 2002 and provides a non-exhaustive list of aggravating and mitigating factors to be taken into account in determining the appropriate sentence for an offence. The weight of authority indicates that Parliament intended the section to replicate the common law, rather than alter it: R v Wickham [2004] NSWCCA 193 at [23].

Some of the aggravating factors relevant to child sexual assault in s 21A(2) are:

  • the offender has a record of previous convictions: s 21A(2)(d)

  • the offence involved gratuitous cruelty: s 21A(2)(f)

  • the injury, emotional harm, loss or damage caused by the offence is substantial: s 21A(2)(g)

  • the offender abuses a position of trust or authority in relation to the victim: s 21A(2)(k)

  • the victim is vulnerable, for example, because the victim is very young or has a disability: s 21A(2)(l)

  • the offence involves multiple victims or a series of criminal acts: s 21A(2)(m)

  • the offence was part of a planned or organised criminal activity: s 21A(2)(n).

Application of these subsections are discussed in Section 21A factors “in addition to” any Act or Rule of Law at [11-060]ff.

The aggravating factor in s 21A(2)(n) — the offence was part of a planned or organised criminal activity — was considered by the court in Saddler v R (2009) 194 A Crim R 452. The applicant who had downloaded more than 45,000 images and 700 movies from the internet, and stored them on external hard drives, CDs and a laptop, was sentenced for possessing child pornography contrary to s 91H(3) Crimes Act 1900 (repealed). These circumstances, however, could not be properly regarded as constituting “planned or organised” criminal activity for the purpose of aggravating the offence under s 21A(2)(n): at [32]. In particular, there was no evidence of planning, or none that went beyond that which is inherent in the offence: at [36].

The court in Saddler v R also considered the aggravating factor in s 21A(2)(f) — the offence involved gratuitous cruelty. At that time, child pornography was defined by s 91(H)(1) Crimes Act 1900 to include the element, “torture, cruelty or physical abuse” (the definition, which still includes that phrase, is now contained in s 91FB(1)(a) and child pornography material is now referred to as “child abuse material”). The sentencing judge found that this aspect of the definition of child pornography was present and had taken it into account in determining the objective gravity of the offence. Taking it into account again under s 21A(2)(f) would be impermissible double counting: at [41]. Further, although there is no direct authority on the question of whether the possession of images after they had been created “involved” gratuitous cruelty, it was likely that it would not. Some involvement of the applicant in the creation of the images is required: at [43].

To top [17-450] De Simoni principle

The court must disregard a matter of aggravation if taking it into account leads to punishing an offender for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when a basic form of the offence is charged and the court has regard to factors which are often found as aggravating features of offences in the Crimes Act 1900; such as, the offence was committed in company (R v Newham [2005] NSWCCA 325), the offender used a weapon, or the offender was in a position of trust: R v Wickham at [26]. See also Fact finding at sentence at [1-500].

To top [17-460] Victim impact statements

For the use of victim impact statements, see Victims and victim impact statements at [12-800].

To top [17-480] Sexual intercourse — child under ten: s 66A

Following amendments made to s 66A Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009), a new aggravated offence of sexual intercourse with a child under the age of 10 years was created: s 66A(2). As Table 1 at [17-420] shows, sexual intercourse with a child under 10 years carries a maximum penalty of 25 years with a standard non-parole period of 15 years: s 66A(1). The new aggravated form of the offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years: s 66A(2). Under s 66A(3)(a)–(h), sexual intercourse with a child under the age of 10 years will be committed in circumstances of aggravation when an offender:

  • intentionally or recklessly inflicts actual bodily harm on the child

  • threatens to inflict actual bodily harm on the child or a person who is present or nearby

  • commits the offence in company

  • commits the offence on a child under his or her authority

  • commits the offence on a child with a serious physical disability

  • commits the offence on a child with a cognitive impairment

  • takes advantage of a child who is under the influence of alcohol or drugs

  • deprives the child of his or her liberty, either before or after the commission of the offence, or

  • breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.

The standard non-parole period that applied to s 66A Crimes Act 1900 immediately before its amendment by the Crimes Amendment (Sexual Offences) Act 2008, continues to apply to offences against s 66A that were committed before the commencement of the amendment on 1 January 2009: Sch 2 Pt 19 cl 60(2) Crimes (Sentencing Procedure) Act.

Specific guidance on the factors relevant to assessing the objective seriousness for an offence under s 66A Crimes Act 1900 has been provided by the Court of Criminal Appeal: R v AJP (2004) 150 A Crim R 575 at [25], MLP v R (2006) 164 A Crim R 93 at [22], R v PGM (2008) 187 A Crim R 152. These factors include how the offences took place, over what period, with what degree of coercion, the use of threats or pressure, and any immediate effect on the victim. However, caution should be exercised where these cases discuss assessing these factors by reference to being below or above a midpoint: Muldrock v The Queen (2011) 244 CLR 120. See Consideration of standard non-parole period in sentencing at [7-920].

See also Sexual assault at [20-630]ff.

Attempting or assaulting with intent to have sexual intercourse with child under 10: s 66B

In R v McQueeney [2005] NSWCCA 168, the offender committed two counts of attempted sexual intercourse with a child under 10 years and was sentenced to a non-parole period of 7 years and a balance of term of 3 years. The court found that the sentencing judge did not offend the principles for an attempted offence. Justice Latham, Howie and Grove JJ agreeing, stated at [25]–[26]:

“[H]is Honour was dealing with the applicant for an attempt rather than the substantive offence. The approach to sentencing for an attempted substantive offence was expressed by this court in Taouk [1992] A Crim R 387 as follows:

‘There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them and that relationship has to be weighed in each case in the light of all the circumstances.’

In those circumstances his Honour’s evaluation of the objective gravity of the offence required his Honour to consider that the substantive offence was not completed and the prospect that the attempt, if not interrupted, would have succeeded. On the facts before him his Honour was entitled to conclude that the substantive offence may well have succeeded but for the fact that the complainant awoke. The applicant had progressed a considerable way towards actual penetration. The boy’s underwear had been removed and the applicant was holding the boy by the shoulders. The applicant was actively engaged in the attempt. Given these features of the offence and the gravity of the offence which was attempted, I am not persuaded that his Honour imposed a sentence in respect of this offence which was outside the range of his sentencing discretion. It may well be regarded as a sentence towards the top of the range, but that is insufficient to attract the intervention of this court.”

To top [17-490] Sexual intercourse — child between 10 and 16: s 66C

The Crimes Amendment (Sexual Offences) Act 2008 inserted a new circumstance of aggravation for the aggravated form of this offence — where an offender deprives a child of his or her liberty for a period before or after the commission of the offence: s 66C(5)(h).

The courts have repeatedly emphasised the extremely serious view that has to be taken towards matters of this kind: R v JVP (unrep, 6/11/95, NSWCCA). In the early 1990s it was held that the ages of victims and the range of criminality of the offenders may vary greatly, rendering a wide range of sentences appropriate, including periodic detention (then available as a sentencing option, but now replaced by intensive correction orders): R v Agnew (unrep, 6/12/90, NSWCCA) per Loveday J; R v McClymont (unrep, 17/12/92, NSWCCA) per Gleeson CJ.

The most significant matter which determines where a particular offence is to be placed in the spectrum of offences of this kind is the degree to which the offender is seen to have exploited the youth of the victim: R v Sea (unrep, 13/8/90, NSWCCA) per Badgery-Parker J at 4.

In R v KNL (2005) 154 A Crim R 268 at [42]–[43], Latham J, Brownie AJA and Buddin J agreeing, stated:

“It is trite to observe that sexual intercourse with a child of 12, knowing the child’s age, is objectively more serious than sexual intercourse with a child of 12, in ignorance of the child’s true age. However, it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence; R v T (1990) 47 A Crim R 29.

The complainant was just over 12 years of age. She was closer to ten than she was to 16, yet that feature of the offence was largely disregarded, in favour of the mitigation constituted by the respondent’s mistaken belief as to her age.”

To top [17-500] Persistent sexual abuse of child: s 66EA

Section 66EA(1) Crimes Act 1900 provides that a person who, on three or more occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a “sexual offence”, is liable to imprisonment for 25 years. “Sexual offence” is defined to include, inter alia, the offences encompassed by ss 61I–61O Crimes Act 1900. The offence was created in 1998 to overcome the problems of proving particulars (time, date and place) following the decision of the High Court in S v The Queen (1989) 168 CLR 266. McClellan CJ at CL said with support in R v Langbein (2008) 181 A Crim R 378 at [115]:

“The offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts.”

Fact finding following a guilty verdict

If a jury returns a guilty verdict to a s 66EA offence, the judge must consider which of the foundational offences are established beyond reasonable doubt so as to sentence in accordance with the verdict: ARS v R [2011] NSWCCA 266 at [230]; Emery v R (1999) 110 A Crim R 221; R v D (1997) 69 SASR 413. This is consistent with the duty of the judge to determine the facts relevant on sentence: ARS v R at [233]. It was not erroneous for the judge find that 12 of 13 counts relied upon by the Crown to establish the s 66EA offence were proved to the requisite standard: ARS v R at [233].

When an offender is sentenced for an offence under s 66EA, the question for the sentencing judge is where the offence should lie on the statutory scale, bearing in mind that the statutory maximum is 25 years imprisonment: R v Fitzgerald (2004) 59 NSWLR 493. It is not logical to approach the sentencing task by considering what sentences the individual offences (such as ss 61J, 61M, 61N) would have attracted had they been charged as isolated offences.

There is nothing to suggest that Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences: R v Manners [2004] NSWCCA 181 at [21]. Section 66EA is capable of applying to a wide range of conduct constituting sexual offences against children: Manners at [34].

Where the offences constituting the s 66EA charge are three or more representative charges (that is, they are not isolated incidents but part of a course of conduct), s 66EA does not permit a departure from the common law approach taken to sentencing for representative counts: ARS v R at [226]. The sentencing judge can still sentence on the basis that the offences were not isolated incidents but the uncharged offences cannot be used to increase the punishment: R v Fitzgerald (2004) 59 NSWLR 493 at [13]; ARS v R at [226].

In Hitchen v R [2010] NSWCCA 77 at [24], although allowing a severity appeal against an aggregate sentence of 25 years with a non-parole period of 18 years, the court accepted the sentencing judge’s finding that the criminality involved for the offence of persistent child abuse was in the worst category: see also [11]–[14].

To top [17-505] Aggravated sexual assault: s 61J

The offence of aggravated sexual assault under s 61J Crimes Act 1900 carries a maximum penalty of 20 years with a standard non-parole period of 10 years. The effect of s 61J(2) is to create an offence with a circumstance of aggravation where the victim was:

  • under the age of 16 years: s 61J(2)(d)

  • under the authority of the offender: s 61J(2)(e).

See for example, Fisher v R [2008] NSWCCA 129 (13-year-old victim) and R v BWS [2007] NSWCCA 59 (16-year-old victim). In Rylands v R (2008) 184 A Crim R 534, the victim was aged 15 years and 9 months. The offence comprised an act of cunnilingus. The court noted that crimes of this nature are regarded with great seriousness and that general deterrence and retribution require earnest consideration: at [98].

To top [17-510] Aggravated indecent assault: s 61M

As to the approach to sentencing for indecent assault committed many years earlier, see Sentencing for offences committed many years earlier at [17-410] and PWB v R [2011] NSWCCA 84.

RS Hulme J said in BT v R [2010] NSWCCA 267 at [41]:

“Sentencing for offences under s 61M is difficult because of the absurd relativity between the 7 years maximum term and the very high standard non-parole period of 5 years for a case in the mid-range of objective seriousness. If the proportions envisaged by s 44 of the Crimes (Sentencing Procedure) Act were adhered to, such a non-parole period would be appropriate for a head sentence of 6 years and 8 months, a sentence that in accordance with long-standing sentencing principles would be imposed only for an offence falling very close to a worst case of an offence under s 61M.”

Prior to BT the court had described the ratio of the standard non-parole period to maximum penalty for indecent assault as “somewhat curious and inconsistent”: R v Dagwell [2006] NSWCCA 98 per Howie J at [38].

The Crimes Amendment (Sexual Offences) Act 2008 amended s 61M Crimes Act 1900 to increase the maximum penalty for an aggravated indecent assault against a child aged under 16 years from 7 to 10 years imprisonment (effective 1 January 2009): s 61M(2).

An offender who commits an aggravated indecent assault against a victim who is under the authority of the offender is liable to 7 years imprisonment: s 61M(1).

Although it is difficult to reconcile, the court must give attention to the standard non-parole period: Corby v R [2010] NSWCCA 146 at [71].

The prescription of a standard non-parole period for indecent assault does not displace the principle that the court is to have regard to the fact that the offence could have been disposed of in the Local Court: Bonwick v R [2010] NSWCCA 177 at [47]. Davies J said at [48]: “It will have a greater influence in the sentencing as both the objective criminality falls below the mid-range, and as the subjective criminality of the offender assumes more significance”.

“Worst category” cases

In R v Campbell [2005] NSWCCA 125 at [31], the court held that the sentencing judge was correct in finding that the criminality of the offences committed by the applicant was within the worst category of the range of possible offences for aggravated indecent assault under s 61M(1).

Section 61M(2)

It is of considerable significance when assessing the objective seriousness of indecent assaults against children to consider the actual character of the assault, including the degree of physical contact involved: R v PGM (2008) 187 A Crim R 152 at [31], applying G A T v R [2007] NSWCCA 208 at [22]; Corby v R [2010] NSWCCA 146 at [71].

In R v PGM, the degree of genital connection in two of the s 61M(2) counts, and the gross indecency involved in the other, meant that the judge’s characterisation of the offending as at the lower end of mid-range was indicative of error: at [31], [40]. By way of contrast, where an indecent assault involved the kissing and cuddling of a child the offender believed, unreasonably, was over 16, the court said that in the particular circumstances this “was not deeply intrusive” and that the offence fell “towards the bottom of the range of objective seriousness”: Corby v R [2010] NSWCCA 146 at [72], [78], [81]. The age difference (39 to 14 years in Corby) can also aggravate the offence: Corby v R at [77]. Other factors relevant to the assessment of objective seriousness include the specific age of the child within the range of 10–16 years, the duration of the conduct and any use of coercion: BT v R [2010] NSWCCA 267 at [22]–[24]; R v KNL (2005) 154 A Crim R 268 at [42]–[43]; R v AJP (2004) 150 A Crim R 575 at [25]. An absence of any threats “may have much less, and perhaps little, weight” in the context of offences by persons in positions of authority over their victims than in the case of offenders not in such a position: BT v R [2010] NSWCCA 267 at [24] per RS Hulme J referring to R v Woods [2009] NSWCCA 55 at [52]-[53].

See discussion of good character and s 21A(5A) Crimes (Sentencing Procedure) Act 1999 at [17-570].

Further appeal cases are accessible in the SNPP Appeals component of JIRS.

To top [17-520] Act of indecency: s 61N

Table 1 at [17-420] sets out the maximum penalties applicable to acts of indecency committed against persons under 16 years: s 61N(1) Crimes Act 1900, and against persons 16 years and above: s 61N(2).

While, ordinarily, a custodial sentence would be appropriate for indecent assaults, such a sentence is neither necessarily required nor inevitable in every case: R v O’Sullivan (unrep, 20/10/89, NSWCCA) at 4–5. However, the legislature does expect the courts to punish severely those who commit sexual assaults on young children: R v Muldoon (unrep, 13/12/90, NSWCCA) at 6. For example, periodic detention, when it was available as a sentencing option (prior to 1 October 2010), was said not to be appropriate where the offences occurred over a long period of time on young children: R v Burchell (1987) 34 A Crim R 148.

The Court of Criminal Appeal has declined to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to the charge of act of indecency: R v Baxter (unrep, 26/5/94, NSWCCA) per Hunt CJ at CL at 11. In R v Baxter, the Court of Criminal Appeal emphasised the importance of looking to such considerations as the nature of the assault, the existence and extent of any penetration, the age of the victim and other features relevant to the case: R v Barrett (unrep, 26/7/95, NSWCCA) per Kirby ACJ at 6. In Corby v R [2010] NSWCCA 146 at [84], the Court of Criminal Appeal stated that if the act of indecency occurred in the physical presence of the victim this will bear on the determination of the seriousness of the offence. The seriousness of the offence escalates if the offence continues over a period of days: at [86].

Aggravated act of indecency: s 61O

Table 1 at [17-420] sets out the maximum penalties for aggravated acts of indecency offences committed against a person under 16 years: s 61O(1) Crimes Act 1900, 16 years or above: s 61O(1A); or under 10 years: s 61O(2). Table 1 also sets out the maximum penalty for the offence of committing an act of indecency with or towards a person under the age of 16 years (or inciting a person under the age of 16 years to an act of indecency) knowing that the act of indecency is being filmed for the purpose of producing child abuse material (previously child pornography): s 61O(2A), inserted by the Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009).

In R v ARC (unrep, 28/8/96, NSWCCA), Hunt CJ at CL stated the following in relation to s 61O offences:

“… the size of the scale in relation to the acts of indecency referred to in [the] NSW Crimes Act is necessarily small. Section 61O provides for circumstances of aggravation … That further reduces the size of the relevant scale. Moreover, it does not take much for an act of indecency to become an indecent assault, with a correspondingly higher maximum sentence”.

To top [17-530] Sexual intercourse with child between 16 and 18 under special care: s 73

Any person who has sexual intercourse with someone under their special care who is of or above 16 but under 17 years of age, is liable to imprisonment for 8 years. Where the victim is of or above the age of 17 years and under the age of 18 years, the offender is liable to imprisonment for 4 years: s 73(2) Crimes Act 1900. “Under the special care of another person”, for the purposes of s 73, is defined in s 73(3).

To top [17-535] Procuring or grooming: s 66EB

Under s 66EB(2) Crimes Act 1900, an adult who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. The offence carries a maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case.

In Tector v R (2008) 186 A Crim R 133, the offender was charged with using a telecommunications service to procure a 12-year-old boy to engage in sexual activity: s 474.26(1) Criminal Code (Cth). Section 474.26(1) is the Commonwealth equivalent of s 66EB(2). Like s 66EB(2)(a), it carries a maximum penalty of 15 years. The court (Hall J, Giles JA and Barr J agreeing) sentenced the offender to a head sentence of 8 years imprisonment, with a non-parole period of 5 years. The gravamen of the offence is conduct by an adult directed at a child under 16 years, undertaken with the intent of encouraging, enticing, recruiting or inducing (whether by threats, promises or otherwise) that child to engage in sexual activity. “Sexual activity” is defined in s 474.28(11) (now repealed) to include “any” activity of a sexual or indecent nature and “need not involve physical contact between people”: at [90]. In addition to the nature of the sexual activity proposed, the following factors were relevant to the determination of sentence at [94]:

  • the offender invited the child to engage in sexual activity with him

  • money was offered as an inducement to sexual activity

  • the offender persistently pursued the child (over a course of approximately six weeks)

  • the child, at 12 years of age, was significantly below the age of 16 years

  • the extent of the age difference between the 41-year-old applicant and the 12-year-old child

  • the offender took steps to remain anonymous (false name, public telephones and internet cafes).

A new offence of “meeting child following grooming” was inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008: ss 66EB(2A) and (2B). It carries a maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case: s 66EB(2A). The offence involves an adult intentionally meeting a child, or travelling to meet a child, whom he or she has groomed for sexual purposes, with the intention of procuring the child for unlawful sexual activity: s 66EB(2A).

To top [17-540] Child sexual servitude and prostitution

Part 3 Div 10A (ss 80B–80F) Crimes Act 1900 deals with offences relating to sexual servitude. The aggravated form of the offence of causing sexual servitude applies to persons under the age of 18 years: ss 80C(a), 80D(2). The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for the aggravated form of the offence from 19 to 20 years imprisonment (effective 1 January 2009): s 80D(2).

Part 3 Divs 15 and 15A (ss 91C–91H) of the Crimes Act 1900 deal with offences relating to child prostitution and child abuse/pornography material. The Crimes Amendment (Child Pornography) Act 2004 amended ss 91C and 91G and introduced s 91H. Significantly, the maximum penalty for offences in s 91G was doubled, increasing from 7 to 14 years where the child is under the age of 14 years, and from 5 to 10 years where the child is of or above the age of 14. The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for offences under s 91E (obtaining benefit from child prostitution): see below.

Child prostitution

Promoting or engaging in acts of child prostitution: s 91D

In R v Romano [2004] NSWCCA 380, the applicant had been sentenced to a fixed term of 6 years on each of three counts of causing a child to participate in act of child prostitution and on each of three counts of causing a child under 14 years to participate in an act of child prostitution. The court found that, although the sentencing judge, in setting a sentence close to the maximum, erred in characterising s 91D prostitution offences as “in many ways … analogous to a violent aggravated sexual assault in terms of its effect on the community and particularly on the girl”, when the offences on the Form 1 were taken into account, the sentence imposed was within the sentencing range.

Obtaining benefit from child prostitution: s 91E

On each of seven counts of obtaining benefit from child prostitution under s 91E in R v Romano [2004] NSWCCA 380, the applicant was sentenced to a fixed term of 3 years. The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for receiving money or any other material benefit knowing that it is derived from an act of prostitution involving a child under the age of 14 years from 10 to 14 years imprisonment (effective 1 January 2009): s 91E(1). The higher maximum penalty only applies where the age of the child is set out in the charge for the offence: s 91E(3).

Premises not to be used for child prostitution: s 91F

In R v Hilton (2005) 157 A Crim R 504, the applicant was charged with 11 counts of obtaining money from child prostitution under s 91E(1) and eight counts of premises not to be used for child prostitution under s 91F(1). His defence — that he did not know the two girls were under 18 years of age — was rejected by the sentencing judge. On appeal, the submission that he was double punished for his conduct was made good: Pearce v The Queen (1998) 194 CLR 610 applied. There was no need to charge the applicant with offences under s 91F(1) as well as under s 91E(1); the offences under s 91F, in point of criminality, being almost entirely subsumed in the offences committed under s 91E: at [8]. Therefore, the sentence for offences under s 91E(1) was reduced for each count to a fixed term of 2 months, whereas the sentence for offences under s 91F(1) was confirmed as a 3-year-term of imprisonment with a non-parole period of 12 months. Justice Adams (with Bell and Hall JJ agreeing), stated that despite the powerful subjective circumstances of this case the objective criminality of the offences was substantial and necessitated a term of full-time custody.

To top [17-541] Child abuse/pornography offences

State offences

Part 3 Div 15A Crimes Act 1900 contains the following State child abuse material (previously child pornography) offences:

  • using a child to produce child abuse material: s 91G(1)

  • producing child abuse material: s 91H(2)

  • disseminating child abuse material: s 91H(2)

  • possessing child abuse material: s 91H(2).

“Child abuse material” is defined in s 91FB as material which:

“… depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) 

a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) 

a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) 

a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) 

the private parts of a person who is, appears to be or is implied to be, a child.”

Commonwealth offences

Chapter 10 Pts 10.5 and 10.6 Criminal Code (Cth) contain the following Commonwealth child pornography and child abuse material offences:

  • using a postal service for child pornography or child abuse material: ss 471.16, 471.19 (maximum penalty of 15 years)

  • possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use through a postal or similar service: ss 471.17, 471.20 (maximum penalty of 15 years)

  • using a carriage service to access, transmit (or cause to be transmitted to himself or herself), make available, publish, distribute, advertise, promote or solicit child pornography or child abuse material: ss 474.19, 474.22 (maximum penalty of 15 years)

  • possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use by the offender or another person to commit an offence against ss 474.19 and 474.22: ss 474.20, 474.23 (maximum penalty of 15 years).

An aggravated form of each offence is contained in ss 471.22 and 474.24A Criminal Code (Cth) (maximum penalty of 25 years). It is also an offence for an internet service provider or internet content host who is aware that a service they provide can be used to access material they believe, on reasonable grounds, is either child pornography or child abuse material to not refer details of that material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material: s 474.25 (maximum penalty of 100 penalty units, that is, $11,000).

There is also an offence of importing or exporting child pornography or child abuse material: s 233BAB Customs Act 1901 (Cth) (maximum penalty of 10 years).

It is apparent that there is a degree of overlap between some of the Commonwealth and State offences. In R v Cheung [2010] NSWCCA 244 at [131], the court said that it was open to a sentencing court to seek guidance from the sentences in respect of much longer established identical state offences. Although these comments were made in the context of drug offences, the statement of principle should apply regardless of the offence. See further discussion in Sentencing Commonwealth offenders at [16-002].

For a detailed discussion of the sentencing principles which apply in relation to sentencing for such offences see P Mizzi, T Gotsis and P Poletti, Sentencing offenders convicted of child pornography and child abuse material offences, Research Monograph 34, Judicial Commission of NSW, Sydney, 2010. As a general rule, the same sentencing principles apply regardless of whether the court is dealing with a State or Commonwealth offence.

Sentencing principles

General deterrence

General deterrence is a paramount consideration for offences involving child abuse/child pornography material. In R v Booth [2009] NSWCCA 89 at [40]–[44], Simpson J said:

“… possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.

It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography”.

In R v Gent (2005) 162 A Crim R 29 at [43], where the applicant was charged with importing child pornography under s 233BAB(5) Customs Act and sentenced to 18 months imprisonment with a non-parole period of 12 months, the Crown relied upon the statement of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 to the following effect:

“The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography — and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.”

This passage has been applied in Australia in R v Jones (1999) 108 A Crim R 50 at 51, a decision referred to by Malcolm CJ in R v Assheton (2002) 132 A Crim R 237 and Williams JA and MacKenzie J in R v Cook [2004] QCA 469.

Prior good character

In dismissing the severity appeal, the court in R v Gent (McClellan CJ at CL, Adams and Johnson JJ) found that the sentencing judge did not err in giving limited weight to the applicant’s prior good character. General deterrence remains the “paramount consideration”: at [64], [100].

In Mouscas v R [2008] NSWCCA 181 at [37], the court held that as the offence of possessing child pornography is frequently committed by persons of prior good character and since general deterrence is necessarily important, it is legitimate for a court to give less weight to good character as a mitigating factor. This aspect of Price J’s judgment was endorsed in DPP (Cth) v D’Alessandro [2010] VSCA 60 in relation to Commonwealth offences. See the discussion of good character and s 21A(5A) Crimes (Sentencing Procedure) Act at [17-570]. See also R v Elliot [2008] NSWDC 238 at [57]; Police v Power [2007] NSWLC 1.

Assessing the objective seriousness generally

Assessing the objective seriousness of a particular offence involving child abuse or child pornography material offence is the most significant aspect of the sentencing exercise. In Minehan v R [2010] NSWCCA 140 at [94], the Court of Criminal Appeal identified the following factors as being relevant to an assessment of the objective seriousness of a range of offences including, possessing, disseminating and transmitting child pornography:

“1. 

Whether actual children were used in the creation of the material.

2. 

The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. 

The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. 

The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. 

In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6. 

In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. 

Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. 

The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. 

The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. 

Whether the offender acted alone or in a collaborative network of like-minded persons.

11. 

Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. 

Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. 

Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.”

Other factors of universal application which must be considered when sentencing for these offences include: the offender’s motivation; the way in which the material is organised; whether the charges are representative; evidence concerning the surrounding circumstances and the proper application of the De Simoni principle; and issues related to totality: see further P Mizzi, T Gotsis and P Poletti, Sentencing offenders convicted of child pornography and child abuse material offences, Research Monograph 34, Judicial Commission of NSW, Sydney, 2010.

Specific offences

Children not to be used for production of child abuse material: s 91G(1) Crimes Act 1900

A person commits an offence under s 91G if they use a child for the production of child abuse material, cause or procure a child to be so used, or consents to a child in their care being so used. The wording of this section was amended by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, effective 17 September 2010. The phrase, “for pornographic purposes” was replaced by “for the production of child abuse material”.

In R v Pearson [2005] NSWCCA 116, on the charge of using a child under 14 years for pornographic purposes, the applicant was sentenced to a fixed term of 18 months. Although the court found that in sentencing the applicant for that offence the sentencing judge contravened s 21A(2) Crimes (Sentencing Procedure) Act by taking into account, as a circumstance of aggravation, that the complainant was under the age of 14, notwithstanding the error, the sentences imposed on the applicant were not found to be manifestly excessive.

In Hitchen v R [2010] NSWCCA 77, the applicant was charged with a number of child pornography offences including one against s 91G(1)(a) which was accepted as a “worst category” case: at [11], [24]. That offence involved the applicant using his 7-year-old step-daughter on nine separate occasions for the purpose of photographing and videoing her in erotic postures which the sentencing judge described as “disgusting and degrading”: at [15]. The applicant was sentenced to a non-parole period of 2 years with a balance of term of 4 years for this offence (the total effective sentence was 18 years with a non-parole period of 14 years).

Production, dissemination or possession of child abuse material: s 91H Crimes Act 1900

A new form of s 91H was inserted into the Crimes Act 1900 by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010, effective 17 September 2010. The new section uses the phrase “child abuse material” rather than “child pornography”.

The maximum penalty for the possession offence under the previous form of s 91H was increased from 5 to 10 years imprisonment, and the previous production, dissemination and possession offences were merged into s 91H(2): Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009).

“Child abuse material” includes material that “appears to be or is implied to be” a child: as a victim of torture, cruelty or physical abuse; engaged in a sexual pose or sexual activity; or in the presence of a person who is engaged in a sexual pose or sexual activity or: s 91FB(1).

The fact that no actual children are used in the production of offending material is a relevant matter in the assessment of objective seriousness: Minehan v R [2010] NSWCCA 140 at [90]. In Whiley v R [2010] NSWCCA 53, the images the subject of the charge were drawn by the applicant and did not involve the actual abuse of children. This, together with the small number of images produced and the fact that the offender produced them for his own gratification, justified a finding that the offence fell within the low range: at [55]–[71]. In R v Jarrold [2010] NSWCCA 69, the production offences involved internet conversations with others concerning sexual activity between the respondent and children. An argument that the offences should be treated as less serious because they were a result of fantasy was strongly rejected: at [53]. The court did accept that, although the offences were separate and distinct, and two related to ongoing criminal activity, they otherwise fell towards the bottom of the range: at [55].

Accessing, transmitting and making available child pornography or child abuse material: ss 474.19 and 474.22 Criminal Code (Cth)

In James v R [2009] NSWCCA 62 at [16], the court separately determined the seriousness of an offence of accessing child pornography and an offence of possession of such material, noting that the access offence continued over a shorter period of time than the possession offence which had continued for a period of over 3 years.

In offences involving the transmission and making available of child pornography or child abuse material, the degree of sophistication and technical skill in the use of the internet is relevant to a determination of the objective seriousness of the offence. In R v Mara (2009) 196 A Crim R 506; [2009] QCA 208 at [10], [37], the court concluded that such sophistication and skill was an aggravating factor. In R v Talbot [2009] TASSC 107 at [9], the fact material was made available using two file sharing programs and was encrypted, thus making detection more difficult, justified a finding that the offences fell within the worst category.

See the discussion of factors which might bear on an assessment of the objective seriousness of these types of offences referred to in Minehan v R [2010] NSWCCA 140 at [94] discussed above.

To top [17-543] Voyeurism and related offences

New voyeurism and related offences were inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008: Pt 3 Div 15B (ss 91I–91M) (effective 1 January 2009). The maximum penalties for these offences are detailed in Table 1 at [17-420].

Voyeurism: s 91J

Voyeurism is the seeking of sexual arousal or gratification by observing another person engaged in a private act without the consent of the person and knowing that the other person has not consented to be observed for that purpose: s 91J(1). “Engaged in a private act” is defined in s 91I(2). An offence against s 91J(1) is a summary offence: s 91J(2).

An aggravated form of the offence is committed when the person observed was under 16 years of age or the offender constructed or adapted the fabric of any building for the purpose facilitating the commission of the offence: s 91J(3), (4).

Filming a person engaged in a private act: s 91K

It is an offence for a person to seek sexual arousal or gratification (or enable another person to do so) by filming another person engaged in a private act without the consent of the person and knowing that the person being filmed has not consented to being filmed for that purpose: s 91K(1). An aggravated form of the offence is committed if the person being filmed was under 16 years of age or the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence: s 91K(3), (4).

Filming a person’s private parts: s 91L

It is an offence for a person to seek sexual arousal or gratification (or seek to enable another person to do so) by filming another person’s private parts without the consent of the person and knowing that the person being filmed does not consent to being filmed for that purpose: s 91L(1). An offence against s 91L(1) is a summary offence. An aggravated form of the offence is committed if the person filmed was under 16 years of age or the offender constructed or adapted the fabric of a building for the purpose of facilitating the commission of the offence: s 91L(3), (4).

To top [17-545] Incitement to commit a sexual offence

An offence of inciting a person to commit a sexual offence was inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009): s 80G. Inciting a person to commit a sexual offence carries the penalty provided for the commission of the sexual offence: s 80G(1).

To top [17-550] Intensive correction order not available for a “prescribed sexual offence”

Section 66 Crimes (Sentencing Procedure) Act provides that an intensive correction order may not be made in respect of a sentence of imprisonment for an offence under Div 10 or 10A of Pt 3 Crimes Act 1900.

For a further discussion of restrictions on the power to make intensive correction orders see Intensive correction orders (ICOs) at [3-630].

To top [17-560] Other aggravating circumstances

Breach of trust

It is an obvious aggravating feature if the offender was in a position of trust and violated that trust by sexually assaulting the child: R v Muldoon (unrep, 13/12/90, NSWCCA). There is a variety of situations where breach of trust has been recognised.

Family members

The abuse of trust is considered more serious where the offender is the father (or family member) of the victim. Sentences must be of a severe nature and little leniency can be given, even though the parent has been otherwise of good character: R v Evans (unrep, 24/3/88, NSWCCA); R v Welcher (unrep, 9/11/90, NSWCCA) per Lee CJ at CL at [15]; R v Bamford (unrep, 23/7/91, NSWCCA). In R v Hudson (unrep, 30/7/98, NSWCCA) at 2, Sully and Ireland JJ, Spigelman CJ agreeing, stated:

“… children in a family situation are virtually helpless against sexual attack by the male parent and … children have a right to be protected from sexual molestation within the family and … this can only be achieved by the courts imposing sentences of a salutary nature”.

The Court of Criminal Appeal has expressed particular concern that in family situations children are required to obey their parents. The offender exploits that authority and their power to discipline the child: R v JVP (unrep, 6/11/95, NSWCCA); R v RKB (unrep, 30/6/92, NSWCCA). In R v BJW (2000) 112 A Crim R 1 at [20]–[21], Sheller JA stated:

“[A] child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992.”

Teachers, coaches and group leaders

In R v King (unrep, 20/8/91, NSWCCA), the respondent was a leader in a junior athletics organisation. In allowing the Crown appeal the court increased his sentence from a 2-year periodic detention order to a fixed term of 2 years.

In R v MacDonnell (unrep, 8/12/95, NSWCCA), the respondent was the head teacher at the victim’s school. On the charge of carnal knowledge under s 73 he was sentenced to a minimum term of 6 months with an additional term of 2 years.

In R v Lumsden (unrep, 31/7/96, NSWCCA), the applicant was the victim’s swimming coach. The court found that the sentencing judge did not err in finding that the breach of trust arising from a coach and pupil relationship aggravated the circumstances of the child sexual assault offences.

Carers

In R v Eagles (unrep, 16/12/93, NSWCCA), the applicant was a baby sitter. On multiple charges of homosexual child abuse he was sentenced to a minimum term of 7 years with an additional term of 3 years.

Priests

In Ryan v The Queen (2001) 206 CLR 267, the applicant was a priest who abused his position of trust by sexually assaulting young boys over an extended period of time.

Homeless children

In R v Fisk (unrep, 21/7/98, NSWCCA), the applicant was charged with 24 separate counts of serious sexual misconduct against three victims. In confirming the aggregate sentence of a minimum term of 9 years with an additional term of 3 years, the court found that the applicant’s behaviour in manipulating, exploiting and taking advantage of the boys’ dysfunctional family backgrounds and homeless state, was a further aggravating factor.

Multiple assaults

Merely that the offences occurred in the course of a single extended episode does not justify the conclusion that the sentences are to be wholly concurrent: R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 at [50]. In Carlton v The Queen (2008) 189 A Crim R 332 at [122], the court held that there should have been at least partial accumulation of the sentences notwithstanding that they occurred as part of one episode. The imposition of totally concurrent sentences failed to acknowledge the separate harm done to the victim by the different acts of the appellant: at [122]. This was an occasion where consideration of an offender’s behaviour being closely related in time should not have obscured the fact that different offences were committed: at [122].

In child sexual assault cases where there are multiple assaults occurring as part of a background of continuous abuse, the fact that these offences are not isolated events is a material consideration in sentencing: R v Bamford (unrep, 23/7/91, NSWCCA). In Dousha v R [2008] NSWCCA 263 at [27]:

“I am satisfied that her Honour’s finding that the counts were representative of a course of conduct was in order to emphasise the distinction between the leniency that might be extended for an isolated instance of misconduct as distinct from repeated and discrete misconduct.”

Offences involving a number of victims or a large number of instances which occurred over a long period of time have been regarded as demonstrative of cases involving a very high degree of criminality: see R v Hill (unrep, 7/7/92, NSWCCA). Condign punishment is called for where grave and repeated sexual assaults are perpetrated upon young children, particularly by a person in a position of trust and authority: R v JCW (2000) 112 A Crim R 466 per Spigelman J at [121]. However, each case must be necessarily understood upon its own facts and by reference to the particular objective circumstances. Such consideration would necessarily include the number of victims involved, the duration of the offence(s) and the extent of sexual invasion seen: R v Davis [1999] NSWCCA 15 at [65].

Caution must be exercised when a criminal escapade involves consequences for more than one victim. In these circumstances, there is a special need to ensure that by imposing concurrent sentences, insufficient recognition is not given to the fact that more than one victim has been impacted by the criminal activity: R v AB (2005) 156 A Crim R 577.

In R v Wicks [2005] NSWCCA 409 at [49], McClellan CJ at CL stated:

“Persons who set about committing crimes of a sexual nature upon a number of different victims, even if the offence occurs in a short space of time can expect a penalty which imposes a prison term which will be served separately for at least some of the offences (… see the discussion about multiple victims in R v Dunn [2004] NSWCCA 41 at [50], R v AB & Clifford [2005] NSWCCA 360 at [90]–[84], R v Weldon (2002) 136 A Crim R 55 at 62 per Ipp J).”

In R v Katon [2008] NSWCCA 228 at [41], the court, applying R v Knight (2005) 155 A Crim R 252 per Johnson J at [112], held that:

“The facts relating to the various offences disclose a course of serious criminal conduct over a number of years. That conduct involved the sexual abuse of 3 individual victims. In the ordinary course there should be a recognition of that separate offending by at least partial accumulation of the sentences …”.

In Dousha v R [2008] NSWCCA 263 at [57], a case involving discrete offending against two young children over a period of years, the court held that there was no error manifested in the fact that the sentences were partially accumulated.

To top [17-570] Mitigating factors

The issue of consent

Consent is not a mitigating factor or defence. Children are to be protected from sexual conduct, even if they are willing participants: R v McClymont (unrep, 17/12/92, NSWCCA); R v Brady (unrep, 3/3/94, NSWCCA).

Sections 77(1) and 91D(3) Crimes Act 1900 provide that consent is no defence to the offences specified in those sections, as noted above at [17-420].

Good character

The Crimes Amendment (Sexual Offences) Act 2008 inserted special rules for child sexual offences: ss 21A(5A), (5B) Crimes (Sentencing Procedure) Act (effective 1 January 2009). Subsection 21A(5A) provides that, in determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence. Section 21A(5A) has effect despite any Act or rule of law to the contrary: s 21A(5B). See further [10-410].

A new definition of “child sexual offence” was also inserted: s 21A(6). The good character amendment applies to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments, a court has convicted the person being sentenced of the offence or accepted a plea of guilty (which has not been withdrawn): Sch 2 Pt 19 cl 59.

Prior to the commencement of the Crimes Amendment (Sexual Offences) Act 2008, an offender’s prior good character was held to be of less significance in child sex cases than other types of offences: R v Rhule (unrep, 25/7/95, NSWCCA); R v Muldoon (unrep, 13/12/90, NSWCCA); R v DCM (unrep, 26/10/93, NSWCCA); R v Balenaivalu (unrep, 19/2/96, NSWCCA); R v Levi (unrep, 15/5/97, NSWCCA); R v C (1997) 93 A Crim R 81; R v Elliot [2008] NSWDC 238 at [42]; Mouscas v R [2008] NSWCCA 181 at [37]; R v PGM (2008) 187 A Crim R 152 at [43]–[44] and Dousha v R [2008] NSWCCA 263 at [49].

In R v PGM (2008) 187 A Crim R 152 at [44], the court observed that, while the judge was entitled to take the respondent’s previous good character into account, to afford it “very significant weight” failed to recognise that the pattern of repeat offending extended over a period of seven months and that the relationship with the victim was deliberately fostered by the respondent for his own sexual gratification. Further, a determined and conscious course of offending diminishes the mitigating impact of a finding of good character: R v Kennedy [2000] NSWCCA 527 at [21]; R v ABS [2005] NSWCCA 255 at [25]. The fact that the respondent used child pornography when perpetrating one of the s 61M(2) offences further indicated that his offending was “neither opportunistic nor in any meaningful contrast to his outward or public good character”: R v PGM at [44].

Offender abused as a child

If it is established that a child sexual assault offender was sexually abused as a child, and that the history of abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty: R v AGR (unrep, 24/7/98, NSWCCA) at 13. However, while it is appropriate to take such a circumstance into account, it cannot be regarded as an excuse, notwithstanding the fact that such a link may aid in explaining the reason why the offender committed the offence: R v Lett (unrep, 27/3/95, NSWCCA) per Hunt CJ at CL at [5]; R v Reynolds (unrep, 7/12/98, NSWCCA) per Hulme J. Courts have to do what they can to see that the cycle of sexual abuse is broken: R v Reynolds.

The weight to be given to this circumstance will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge: R v AGR (unrep, 24/7/98, NSWCCA) at [5]. Such a consideration will usually only go to reducing the offender’s moral culpability for the acts, notwithstanding that it may also be relevant to the offender’s prospects of rehabilitation: R v AGR.

In R v Cunningham [2006] NSWCCA 176 at [67], the court held that the applicant’s history of sexual abuse did not entitle him to mitigation because the psychiatric evidence did not go so far as to suggest that the abuse contributed to his paedophilia or the offences. Furthermore, the offences were committed in breach of a bond for similar prior offences with regard to which the applicant had already received the benefit of the history at sentence.

In Dousha v R [2008] NSWCCA 263 at [47], the applicant conceded that there was no direct evidence that the single instance of sexual abuse he suffered as a child had in any way contributed to his offending. Indeed, there was evidence to the contrary, as a psychologist who assessed the applicant opined that the incident did not contribute to the applicant’s offending. The court held at [47] that, “[i]n the absence of any causal connection of that kind (or the issue having any bearing upon the applicant’s prospects of rehabilitation)”, the incident was not relevant to the sentencing discretion.

Delay

Substantial delay in bringing a matter before the court in some cases may operate to the offender’s advantage, for example by providing the offender with the opportunity to establish a new life and demonstrate rehabilitation. In other cases, the period of delay may lead to some constraint upon the offender’s lifestyle or other detriment which may also justify a degree of leniency: R v V (unrep, 24/2/98, NSWCCA) per Wood J. In R v Todd [1982] 2 NSWLR 517 at 519, a case concerned with factors arising from consideration of offences committed interstate and resulting delays, Street CJ set down the following principle:

“… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner”.

In the case of child sexual assault, it does not necessarily benefit a child sex offender that the offences are not revealed until many years after they were committed: R v Moon (2000) 117 A Crim R 497. In R v Dennis (unrep, 14/12/92, NSWCCA), the applicant had been charged with five counts of indecent assault and two counts of buggery after the victim came forward in 1990 following a public appeal about child abuse, and complained of offences that had occurred over the period 1974–1980. In rejecting the submission that the sentencing judge had erred by not giving adequate weight to the lapse of time between the commission of the last offence and the time when the applicant came forward for sentence, James J, Hunt CJ at CL and Carruthers J agreeing, said:

“It is not infrequently the case that sexual offences committed against a child of which only the offender and the child have knowledge, are first revealed by the child to a third person only years afterwards when the child has attained a certain level of maturity. In such cases the mere passage of time between the committing of the offences and the disclosure of the offences and the apprehension of the offender is of little weight as a factor in mitigation of penalty.”

Lapse of time between the commission of the offence and notification to police should be a mitigating factor only where the delay would cause unfairness to the offender: R v Johnson (unrep, 16/5/97, NSWCCA) per Priestley JA. However, it is impossible to lay down any general principle as to the operation of leniency arising from delay: R v Thomson (unrep, 18/6/96, NSWCCA) per Levine J.

In R v Holyoak (1995) 82 A Crim R 502, a case involving sexual offences in which the appellant had not been charged until more than 20 years had passed and in which there had been a further six years delay before conviction; “extra curial” punishment via the media; and “hate” communications, Allen J stated:

“Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment — although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent — the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle.”

In finding that the sentencing judge made no error in principle in relation to delay, Levine J in R v Thomson, Priestley JA and Abadee J agreeing, applied R v Holyoak. The sentencing judge had found this was not a case where there had been any dilatory conduct by the police or prosecuting authorities, nor was it a matter in which there had been charges ‘hanging over’ the prisoners head. As far as the applicant was concerned the matter was not going to proceed after the victim’s mother refused to co-operate with the authorities in 1987. There was no evidence to the effect that the prisoner’s life was in any way affected by the delay between the detection by his wife in 1987 and the eventual furnishing of evidence enabling prosecution.

The issue of delay was considered in R v Humphries [2004] NSWCCA 370, where Barr J, Buddin and Campbell JJ agreeing, stated that the sentencing judge was entitled to ignore the fact that there was an 11-year delay between the victim’s complaint to her mother and her complaint to police and the subsequent charging of the applicant. In that case, the complainant had been discouraged from making a report by her family. Justice Barr stated at [19]–[20]:

“Although a lengthy delay between finding and charging can be taken into account in favour of an offender, there is no rule that that must happen. Each case depends on its own facts. There is no rule of law that delay is always a detriment to the offender, though it often will be: R v Holyoak (1995) 82 A Crim R 502 at 508.

One of the incidents of a lengthy delay can be that the offender is left in an agony of mind, not knowing whether or not he will be charged. The applicant was not put into any such frame of mind. He was able confidently to rely, until the police were finally told, upon the complainant’s not telling the police, in accordance with the understanding he believed had been reached [among the family].”

In R v EGC [2005] NSWCCA 392, in referring to the distinction drawn in R v Holyoak, the applicant submitted that, while the rehabilitation of an offender is not necessarily a mitigating factor in cases where there is a time lapse between the commission of the offences and conviction for them, it is a powerful mitigating factor where delay was a consequence of the prosecuting authorities failing to expeditiously bring the offender to trial. Justice Latham, Sully and Hulme JJ agreeing, doubted whether such a neat distinction can be drawn. Justice Latham stated at [32]:

“… nothing in the judgment [in R v Holyoak] suggests that the weight to be afforded to the rehabilitation of an offender varies according to whether delay has been occasioned by tardiness on the part of the prosecution”.

In R v EGC, although police were notified in 1991, both the victim and her mother rejected police involvement. The victim’s mother had in fact married the applicant six months after being told by the victim of the sexual assaults. Stating at [35] that “mere knowledge of such allegations cannot found a justifiable inference of deliberate inaction by prosecuting authorities”, Latham J continued at [36]:

“A number of decisions of this court are consistent with the Judge’s approach to this issue, in circumstances where the complainant and members of her family decline to make a statement or contact the police, despite some early intervention by welfare authorities. V, Thompson and Humphries all fall into that category and resulted in the dismissal of sentence appeals premised upon non-adherence to the principles established in R v Todd [1982] 2 NSWLR 517. In V, Wood CJ at CL cites Thompson and Holyoak amongst others, as illustrative of the proposition that leniency is not necessarily extended wherever there is a stale offence or substantial delay (at 300).”

Although the court in R v EGC held that the sentencing judge did not fail to give sufficient weight to the applicant’s rehabilitation in the context of the delay between notification of the assaults to police and charge, it found that the passage of time between the commission of the offences and sentence was capable of, and ought to have, constituted special circumstances. The Court of Criminal Appeal has recognised prosecution for a stale offence as a special circumstance warranting alteration of the statutory ratio: R v Virgona [2004] NSWCCA 415; R v Fidow [2004] NSWCCA 172.

In Dousha v R [2008] NSWCCA 263 at [30], where there was a delay of about 20 years, the court held that it was open to her Honour to conclude that rehabilitation was not established. Although the fact that a lengthy period has elapsed without further offences being committed may allow for a finding that an offender has either rehabilitated or has good prospects for doing so, such a finding is not mandated. Her Honour gave greater weight to the psychologist’s opinion that the applicant possessed persisting features of paedophilic orientation: at [18], [29].

Pre-Trial Diversion of Offenders Program

The Pre-Trial Diversion of Offenders Act 1985 applies to “a person who is charged with a child sexual assault offence committed with or upon the person’s child or the child of the person’s spouse or de facto partner”: s 3A. It establishes a procedure whereby certain offenders are to be diverted from the ordinary curial path and made subject to a program of treatment intended to modify their criminal behaviour; the ultimate aim of the treatment being the reduction of the prospects of re-offending: R v DWD (unrep, 2/3/98, NSWCCA). As the legislation was explained when it was introduced into Parliament, the Act was based upon the theory that there are certain cases in which punishment is not an effective or appropriate deterrent. It has as its principal objective the protection and alleviation of the stress of victims of child sexual assault.

The Crimes Amendment (Sexual Offences) Act 2008 amended the definition of “child sexual assault offence” in s 3(1) Pre-trial Diversion of Offenders Act to include offences under s 66EA, thereby extending the diversion scheme to persons charged with persistent sexual abuse of a child.

In R v DWD (unrep, 2/3/98, NSWCCA) Gleeson CJ, Cole JA and Barr J agreeing, stated:

“The Act recognised that one of the problems of the ordinary operation of the criminal justice system in cases such as the present [child sexual abuse] is the likelihood of the offender, after a period of imprisonment, returning to a domestic situation which will place the offender in close proximity to the victim of the offence. In those circumstances, the legislature took the view that, provided certain conditions were satisfied, it could be regarded as an appropriate objective of the system not to measure out punishment, with its usual consequence of general deterrence, but to endeavour to treat the offender in circumstances where there were significant prospects of rehabilitation and thereby protect the victim in the future.”

In R v Humphries [2004] NSWCCA 370, the court found that there was no substance to the submission that the delay in complaint had effectively deprived the applicant of the opportunity of being considered for inclusion in a program under the Pre-Trial Diversion of Offenders Act. The complainant was already 18 years old when she could have told the police. The purpose of the program is to protect children and to encourage them to come forward without the fear of being held responsible for the break-up of families. Justice Barr, Buddin and Campbell JJ agreeing, held at [23] that, given that the offending conduct had ceased a number of years earlier, it was doubtful whether the program would have been resorted to. In R v EGC [2005] NSWCCA 392, the court rejected the submission that the delay in prosecuting the applicant deprived him of the likelihood of a non-custodial sentence under the Pre-Trial Diversion of Offenders Act provisions. Justice Latham, Sully and Hulme JJ agreeing, stated at [26]:

“One could not conclude with the confidence required to justify the extension of a degree of leniency to the applicant, that the failure to charge in 1991 was solely responsible for the loss of the opportunity to enter the program.”

Although no formal complaint was made to the police in 1991, there was nothing preventing the applicant from presenting himself to the police and making formal admissions at that time. “[T]he applicant himself could have taken his chances of getting into the program if he had been prepared to tell the police what had happened”: at [27], citing Wood CJ at CL in Humphries at [23].

Section 11(2) Pre-Trial Diversion of Offenders Act provides that, if there is no place available in the program for the offender, then the prosecutor is to inform the magistrate that the person is not to be referred for assessment. If that occurs, the Act then ceases to apply. In R v ABS [2005] NSWCCA 255, the offender was assessed as suitable to participate in the Cedar House community-based program, however, there were no places available. The sentencing judge was informed that if the respondent was given a non-custodial sentence he would be placed on a waiting list. The court upheld the Crown appeal finding that the sentencing judge erred in deferring sentence under s 11 Crimes (Sentencing Procedure) Act 1999 for 12 months. The serious objective criminality displayed by the respondent in committing the offences contrary to s 61J Crimes Act 1900 required significant full-time custodial sentences to be imposed.

Possibility of summary disposal

See discussion under Sexual assault at [20-770].

Health

Ill-health may be a mitigating factor where the evidence establishes that imprisonment will be more burdensome because of the offender’s state of health or that imprisonment will have a “gravely adverse effect on the offender’s health”: R v Smith (1987) 44 SASR 587 at 589. See also R v Bailey (1988) 35 A Crim R 458; R v Zappala (unrep, 4/11/91, NSWCCA) at 5–6; R v Varner (unrep, 24/3/92, NSWCCA); R v Cole (unrep, 29/3/94, NSWCCA) at 10. For a lengthy discussion on the principles relating to ill-health see R v L (unrep, 17/6/96, NSWCCA) at 6–9.

Ultimately, the fact that a person may suffer hardship in gaol by reason of some illness or disability is a matter for the prison authorities. It is their responsibility to ensure that the prisoner is not subjected to undue hardship: R v Zappala and R v L.

There may be exceptional cases where the offender’s condition is so severe that imprisonment would be inhumane: R v Vento (unrep, 6/7/93, NSWCCA); R v Dowe (unrep, 1/9/95, NSWCCA) referred to in R v L.

Age

The age of the offender is relevant on sentence primarily on the basis that imprisonment may be more onerous for an older individual. There is no automatic reduction because of age. It is a matter to be considered together with the other circumstances of the case: R v Varner (unrep, 24/3/92, NSWCCA); R v Holyoak (1995) 82 A Crim R 502. In R v DCM (unrep, 26/10/93, NSWCCA) at 3, Badgery-Parker J said, Kirby ACJ and Loveday AJ agreeing:

“Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years.”

There is no principle that the offender should not be sentenced to a term that would result in him or her spending the rest of his or her life in gaol: R v Varner; R v Holyoak; R v Gallagher (unrep, 29/11/95, NSWCCA).

The youth of an offender may also be a relevant consideration. In R v JJS [2005] NSWCCA 225 the applicant, a 14-year-old boy who assaulted his three-year-old cousin contrary to s 61M(2), was sentenced to a 5-year good behaviour bond. The bond was reduced on appeal to a term of 3 years, the court finding that the sentence was unduly burdensome and inappropriate in the circumstances of the case.

Intellectual handicap/mental disorder

General deterrence should be given less weight in cases where the offender is suffering from a severe intellectual disability or mental disorder because such an offender is not an appropriate medium for making an example to others. The court moderates the consideration of general deterrence to the circumstances of the particular case.

In R v Morrow [1999] NSWCCA 64, where the intellectually disabled applicant was charged with one count of sexual intercourse with child under 10 years contrary to s 66A, the court dismissed the Crown appeal against a 5-year s 558 recognizance order. The applicant was suffering from serious depression and his ability to function in the general community was 99.9% lower than the rest of the population.

Where the offender knows what he or she is doing and understands the gravity of his or her actions, the moderation will not be great: R v Champion (1992) 64 A Crim R 244 at 254. See also R v DCM at 6–7; R v Engert (1995) 84 A Crim R 67 at 71; and R v Monk (unrep, 2/3/98, NSWCCA) at 3–5.

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 [7-910].

Offender undertakes treatment

It has been said that it is “an important matter in his favour” that the offender is prepared to undertake treatment for his sexual attraction to children. This is particularly so in cases involving Depo Provera treatment (“chemical castration”), where there are significant side effects. In R v DCM (unrep, 26/10/93, NSWCCA), the respondent was charged with 16 counts of child sexual assault offences involving five children over a period of 4 years and 5 months. In dismissing the Crown appeal and confirming the 300 hours community service and recognizance orders, Badgery-Parker J, Kirby ACJ and Loveday AJ agreeing, had regard to “the quite exceptional circumstances of this case”, including that the respondent underwent a course of treatment of Depo Provera and Androcur.

Extra-curial punishment

The sentencing court is entitled to take into account punishment meted out by others, such as abuse, harassment and threats of injury to person and property: R v Allpass (1993) 72 A Crim R 561. In R v Holyoak (1995) 82 A Crim R 502, the fact that the applicant had suffered substantially from personal harassment by media representatives as well as received a large volume of “hate” communications from members of the public, meant that the punishment commenced, in a real sense, before his sentence.

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

(a) 

a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or

(b) 

the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or

(c) 

as a consequence of being convicted of the offence, has become a disqualified person under the Child Protection (Working with Children) Act 2012, or

(d) 

the subject of an order under the Crimes (High Risk Offenders) Act 2006 (whether as a high risk sex offender or as a high risk violent offender).

Section 24A(1)(a)–(b) has effect despite any Act or rule of law to the contrary: s 24A(2). It applies to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments, a court has convicted the person being sentenced of the offence or accepted a plea of guilty (which has not been withdrawn): Sch 2 Pt 19 cl 59. Section 24A(1)(c) applies to offences whenever committed unless, before 3 March 2011, a court has convicted the person being sentenced of the offence, or a plea of guilty has been accepted and the plea has not been withdrawn: Crimes (Sentencing Procedure) Act 1999, Sch 2, Pt 21, cl 62.

For the position before the enactment of s 24A see R v KNL (2005) 154 A Crim R 268 at [49]–[50].

Hardship of custody for child sex offender

Protective custody is not automatically to be regarded as a circumstance mitigating the sentence: Clinton v R [2009] NSWCCA 276 at [24]; R v Way (2004) 60 NSWLR 168 at [176]–[177]; R v Durocher-Yvon (2003) 58 NSWLR 581. The Court of Criminal Appeal has repeatedly applied the principle that where an offender seeks to receive a reduction of sentence on the ground that conditions of imprisonment will be more onerous, it is for the offender to lead evidence of what those conditions entail: Clarkson v R (2007) 171 A Crim R 1 per Howie J, Sully J agreeing, at [273]. It will be an error to take into account in mitigation the fact that an offender will serve a sentence in protective custody — either in the determination of the sentences or in the finding of special circumstances under s 44(2) Crimes (Sentencing Procedure) Act — without evidence that the conditions of imprisonment will be more onerous: RWB v R [2010] NSWCCA 147 at [192]–[195]; R v LP [2010] NSWCCA 154 at [21].

The Sentencing Council of NSW said in a report, “Penalties Relating to Sexual Assault Offences in New South Wales”, 2008, Vol 1, at [6.49]:

“In the case of sexual offenders, it is difficult to imagine that those prisoners who are assumed likely to serve their sentences in special management areas or in limited association areas, who have access to programs or services or a reasonable degree of association with other inmates, would qualify for special consideration. Each case would, however, need to depend on its own facts.”

The Council expressed the view at [6.51] that “the conditions of protective custody should more actively be promoted to judicial officers”.

A paper on protective custody by Domenic Pezzano, Superintendent Operations Branch, Corrective Services NSW, “Information for ODPP/Courts on options for offenders who request protective custody — limited association and non-association” (revised December 2010) describes the programs and employment opportunities.

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