Commonwealth child sex offences
[17-700] Summary of relevant provisions
[17-710] Introduction
This chapter should be read in conjunction with Sentencing Commonwealth offenders at [16-000]. See also Sentencing of Federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024.
Unless otherwise indicated, references to provisions in this chapter are to the Criminal Code (Cth) and references to the Crimes Act, are to the Crimes Act 1914 (Cth).
Commonwealth child sex offences (defined in s 3 Crimes Act) are contained in Ch 8 and 10 of the Criminal Code and concern sexual offending against children overseas, via the postal service or by using a carriage service, for example, by phone or internet services. This chapter focuses on offences in Ch 10, Div 474 which are committed using a carriage service including:
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Subdivision D — using a carriage service to access, transmit, solicit etc child abuse material (ss 474.19 (rep), 474.22, 474.22A); and
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Subdivision F — using a carriage service to engage with a child for sexual activity (s 474.25A(1)), to procure a child for sexual activity (s 474.26) and to groom a child (ss 474.27, 474.27AA), and other similar offences.
See Criminal Trial Courts Bench Book at [5-1300] for a table of NSW and Commonwealth sexual offence provisions which includes the time period the provision was in force, the maximum penalty, and the standard non-parole period (if applicable).
Mixture of State and Commonwealth offences — child abuse material
For consistency, the term “child abuse material” (CAM) is used throughout this chapter. In 2009, “child abuse material” replaced “child pornography” in the NSW Crimes Act 1900. On 21 September 2019, the previous distinction between “child pornography material” and “child abuse material” in the Criminal Code was replaced with a single, reconstituted definition of “child abuse material” in s 473.1.
A combination of State and Commonwealth offences is not uncommon in a prosecution for offences involving CAM: R v Porte [2015] NSWCCA 174 at [55]. Courts have identified common factors relevant to assessing the objective seriousness of the State offences of possessing and disseminating CAM (Crimes Act 1900, s 91H(2)) and Commonwealth offences of accessing or transmitting CAM (ss 474.19 (rep), 474.22(1)): R v Hutchinson [2018] NSWCCA 152 at [45]. However, it is still important to differentiate between the State and Commonwealth statutory sentencing schemes. Accordingly, if the aggregate sentencing scheme is to be applied in such a case, separate aggregate sentences must be imposed in relation to the State and Commonwealth offences (see [16-040] Sentencing for multiple offences). Also, while State and Commonwealth offences may overlap, they will generally not be identical and any overlap in offences will need to be taken into account as part of totality (see [17-730] General sentencing principles and [17-740] Objective factors (including relevant s 16A(2) matters)).
[17-720] “Commonwealth child sex offence” and other definitions
Section 3 Crimes Act defines “Commonwealth child sex offence” as Criminal Code offences in:
- (i)
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Division 272 (Child sex offences outside Australia);
- (ii)
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Division 273 (Offences involving child abuse material outside Australia);
- (iia)
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Division 273A (Possession of child-like sex dolls etc.);
- (iii)
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Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);
- (iv)
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Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children).
It also includes the above offences:
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as an offence against ss 11.1 (attempt), 11.4 (incitement) and 11.5 (conspiracy) of the Criminal Code (subs (b)); and
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taken to have been committed because of ss 11.2 (complicity and common purpose), 11.2A (jointly) and 11.3 (by proxy) of the Criminal Code (subs (c)).
See Table 1: Commonwealth child sex offences — maximum and minimum penalties below at [17-800].
Section 3 also provides definitions for the terms:
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child abuse material, (as per Pt 10.6 Criminal Code);
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child sexual abuse offence;
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Commonwealth child sexual abuse offence;
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State or Territory registrable child sex offence.
Commonwealth offences against children which may be of a sexual nature, and other related offences, that do not fall within the definition of Commonwealth child sex offence include:
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Importing or exporting child pornography or CAM: s 233BAB Customs Act 1901 (Cth).
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Aggravated forced marriage offences where the victim is under 16 years of age contrary to ss 270.7B and 270.8(1) Criminal Code.
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Person on a child protection offender register departing Australia: s 271A.1 Criminal Code.
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Internet service provider or content host, aware that a service they provide can be used to access material they believe on reasonable grounds is CAM, not referring details to the Australian Federal Police within a reasonable time: s 474.25.
See Criminal Trial Courts Bench Book at [5-1300] for a table of NSW and Commonwealth sexual offence provisions which includes the time period the provision was in force, the maximum penalty, and the standard non-parole period (if applicable).
[17-730] General sentencing principles (including relevant s 16A(2) factors)
Section 16A(1) Crimes Act provides the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides the court must take into account matters including the need to ensure adequate punishment (s 16A(2)(k)) and the deterrent effect the sentence may have on the person (s 16A(2)(j)) or others (s 16A(2)(ja)). See also [16-025] Section 16A(2) factors.
General deterrence and denunciation
General deterrence and denunciation are important considerations for offences involving CAM as well as offences involving predatory conduct towards children online: Lazarus v R [2023] NSWCCA 214 at [76]; Martin v R [2019] NSWCCA 197 at [83]; R v Edwards [2019] QCA 15 at [63], [86]; R v Porte [2015] NSWCCA 174 at [60]; DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21].
In R v Booth [2009] NSWCCA 89 at [40]–[44], Simpson J discusses the relationship between the exploitative nature of the offence of possessing CAM (in relation to Crimes Act 1900, s 91H(3) (rep)) and the importance of general deterrence:
…[P]ossession 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.
The growing prevalence of such offences and the difficulty in detecting them is another reason for emphasising the importance of general deterrence on sentence. In Small v R [2020] NSWCCA 216 at [59] Johnson J (Hoeben CJ at CL and Lonergan J agreeing) quoted the following passage from DPP v Watson [2016] VSCA 73 at [89]:
… the internet may be used as a highly effective medium through which to exploit and sexualise vulnerable children who now are able to have unsupervised access to the internet. Computers and mobile phones with internet access, afford the willing offender with unparalleled world-wide opportunity to exploit the young and impressionable. It is a form of offending that is difficult to detect. It is already evident that the rapidly advancing technology will require courts to increasingly address cases of this kind.
Specific Deterrence
Specific deterrence has been found to be an important consideration in the following circumstances:
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The offender has a prior conviction for similar offences: R v Booth [2009] NSWCCA 89 at [45]; Small v R [2020] NSWCCA 216 at [60]; [83].
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There is evidence of a lack of insight into the offence: DPP (Cth) v D’Alessandro [2010] VSCA 60 at [34], [36]; DPP v Watson [2016] VSCA 73 at [62].
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The offender has a paraphilic disorder: DPP (Cth) v Beattie [2017] NSWCCA 301 at [205].
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There is a high risk the offender will reoffend: R v Scavera [2016] NSWCCA 145 at [75].
Totality
When sentencing an offender for more than one offence, the overall sentence must be “just and appropriate”: Johnson v The Queen [2004] HCA 15 at [18], citing Mill v The Queen (1988) 166 CLR 58 at [63]; see also [8-200] The principle of totality.
For example, it is not uncommon for an offender to be sentenced for accessing (ss 474.19 (rep), 474.22(1)), and possessing, the same CAM (Crimes Act 1900, s 91H(2)). While the overall sentence must reflect that these offences overlap, some measure of accumulation is likely to be required: R v De Leeuw [2015] NSWCCA 183 at [142], [179]. This is to address that, after accessing the material, the offender took the further step of taking possession of it: R v Porte [2015] NSWCCA 174 at [55]–[56], applying R v Fulop [2009] VSCA 296.
In Rajasekar v R [2017] NSWCCA 113, the offender used false identities to groom five children online (s 474.27(1)) and, on one occasion, had a child engage in sexual activity online (s 474.25A(1)). Although the offending was an ongoing course of conduct, it was necessary for there to be some accumulation of the individual sentences to comprehend the distinct criminality of each offence: [34]. See also DPP (Cth) v Beattie [2017] NSWCCA 301 at [155]–[158].
Proportionality
There must be reasonable proportionality between the sentence and the objective gravity of the offence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; see also [10-010] Objective seriousness and proportionality.
In R v Booth [2009] NSWCCA 89, the Court held the sentencing judge gave undue focus to the offender’s need for counselling when imposing a good behaviour bond for an offence of possessing CAM (Crimes Act 1900, s 91H(3) (rep)), at the expense of other sentencing considerations such as the need for general and specific deterrence, and denunciation: [47]–[48].
In R v De Leeuw [2015] NSWCCA 183, the Court held the imposition of an intensive correction order for offending involving possession of over 30,000 items of CAM which the offender had obtained from the internet over a lengthy period (Crimes Act 1900, s 91H(2); Criminal Code, s 474.19 (rep)) was manifestly inadequate: [146]. The sentencing judge approached the offender’s prospects of rehabilitation (a significant factor on sentence) in an erroneous way so the offender’s subjective circumstances overshadowed the substantial objective gravity of the offences: [136].
Note: Section 67 Crimes (Sentencing Procedure) Act 1999 provides an ICO must not be made in relation to a prescribed sexual offence which includes many Commonwealth child sex offences.
Comparative Cases
The court must have regard to the sentences imposed in all States and Territories: The Queen v Pham (2015) 256 CLR 550 at [23], [41]; see also [16-035] Relevance of decisions of other State and Territory courts.
For offences involving CAM, it is useful to have regard to comparative cases, given a particular case will lie on a spectrum in accordance with factors identified as relevant to assessing objective serious: Lyons v R [2017] NSWCCA 204 at [81]–[82]. Although, the comparative cases should bear similarity to the case before the court. In Kannis v R [2020] NSWCCA 79, the Court held the sentencing judge erred by relying on sentencing decisions which were materially and significantly different from the offender’s case: [284].
[17-740] Objective factors (including relevant s 16A(2) matters)
Assessing the objective seriousness of an offence is an important aspect of the sentencing exercise (see Nature and circumstances of the offence: s 16A(2)(a) in [16-025] Section 16A(2) factors; [10-000] Objective seriousness and proportionality; s 16A(2)(a) Crimes Act). The court also needs to consider the maximum penalty and any applicable minimum penalty (see [16-025] Maximum penalties; [17-790] Mandatory minimum penalties; s 20(1)(b)(ii), (iii) Crimes Act.
The court must also take into account other relevant objective matters from the non-exhaustive list of matters in s 16A(2) Crimes Act including any course of conduct (s 16A(2)(c)), and any harm suffered by victims (s 16A(2)(e), (ea)) (see at [16-010] General sentencing principles applicable.
In relation to:
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Sexual offences against children outside Australia in Div 272, Subdiv B;
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Offences relating to the use of postal or similar service involving sexual activity with person under 16 in Div 471, Subdiv C; and
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Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16 in Div 474, Subdiv F;
the following additional objective matters must also be taken into account, so far as known to the court:
- (a)
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The age and maturity of the person in relation to whom the offence was committed, if relevant;
- (b)
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If that person was under 10 when the offence was committed, that fact aggravating the seriousness of the related criminal behaviour;
- (c)
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The number of people involved in the commission of the offence, if relevant: ss 272.30, 471.29A, 474.29AA.
For a list of factors that may be relevant to the objective seriousness of offences of sexual intercourse, other sexual activity, persistent sexual abuse and procuring for sexual activity, with/of children outside Australia (ss 272.8, 272.9, 272.11, 272.14 Criminal Code), see DPP (Cth) v Beattie [2017] NSWCCA 301 at [127]; Baden v R [2020] NSWCCA 23 at [27]. These factors may be relevant to other similar offending.
See below for a discussion of factors relevant to the assessment of objective seriousness for CAM offences, online grooming and procuring offences.
[17-750] Child abuse material offences — possess, disseminate and transmit
This discussion relates to Commonwealth offences of accessing, transmitting, or soliciting CAM (ss 474.19 (rep), 474.22(1) Criminal Code) and State offences of possessing and disseminating CAM (s 91H(2) Crimes Act 1900). For State offences of producing CAM (ss 91G, 91H(2) Crimes Act 1900), see Child abuse material offences at [17-541].
In R v Hutchinson [2018] NSWCCA 152 at [45], RA Hulme J (Meagher JA and Button J agreeing) identified the following factors as being relevant to an assessment of the objective seriousness of possessing, disseminating and transmitting CAM:
- 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, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
- 10.
The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
- 11.
Whether the offender acted alone or in a collaborative network of like-minded persons.
- 12.
Any risk of the material being seen or acquired by vulnerable persons, particularly children.
- 13.
Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
- 14.
Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act (for Commonwealth offences) bearing upon the objective seriousness of the offence.
These are based on the factors set out in Minehan v R [2010] NSWCCA 140 at [94], with two additional factors to account for offending involving engagement with a child victim online, including the age disparity with the victim (factor 10) and whether the offender used deception, including a false persona, to commit the offence (factor 9).
The list of factors is not exhaustive as individual cases can always identify other matters relevant to an assessment of objective seriousness: R v Hutchinson at [46], applied in Burton v R [2020] NSWCCA 127 at [27]; CR v R [2020] NSWCCA 289 at [55]–[56].
The absence of a factor, for example, the offender did not have the purpose of selling the CAM accessed and possessed (factor 5), does not act in mitigation on sentence: R v Porte [2015] NSWCCA 174 at [66].
In terms of the “nature and content of the material” (factor 2), CAM typically includes images and videos. CAM may also be comprised of written stories, messages (Burton v R [2020] NSWCCA 127) and chat room discussions (Lyons v The Queen [2019] VSCA 242).
The use of classification scales is a helpful way to assist a sentencing court to assess the gravity of the CAM, and the objective seriousness of the offence: R v Porte [2015] NSWCCA 174 at [75]. The Child Abuse Material Interpol Baseline Categorisation contains two categories of CAM:
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Interpol Baseline Category A — An image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the child’s anal or genital region.
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Other CAM Category B — Other child abuse material, illegal in NSW, but which does not fit in Category A, including a person who, is, appears to be or is implied to be a child and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who:
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is a victim of torture, cruelty or physical abuse; or
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is engaged in or apparently engaged in a sexual pose or activity (alone or in the presence of others); or
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is in the presence of another person who is engaged in or apparently engaged in a sexual pose or activity; or
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is exposing the genital or anal area, or the breasts of a female child:
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See Gilshenan v R [2019] NSWCCA 313 at [13].
This classification system does not give a gradation based upon the gravity of the child abuse depicted: Curle v R [2024] NSWCCA 117 at [13].
The Child Exploitation Tracking System (CETS) Scale, which classifies CAM into six categories, depending on its type and seriousness, has also been used to categorise such material: R v Porte [2015] NSWCCA 174 at [16], [73]–[75].
While these categories have been considered helpful in the assessment of the objective seriousness of such offences, all CAM involves the sexual exploitation of children and is capable of possessing significant gravity: R v Porte at [75], [77]; see also R v De Leeuw [2015] NSWCCA 183 at [140]–[141]; DPP v Watson [2016] VSCA 73 at [45]–[46]; R v Edwards [2019] QCA at [79]. CAM classification scales are not legislated and, although they are a useful tool, they cannot overwhelm the assessment of the CAM’s nature as part of assessing the objective seriousness of the conduct: R v Edwards at [79].
In R v Edwards, most of the CAM the offender accessed (s 474.19(1) Criminal Code) were CGIs of children engaged in sexual activity. The Queensland Court of Appeal held it would be an error to assess such material as victimless or harmless because it did not involve real children as the material may normalise or encourage others to participate in the activity depicted; fuel the demand for such material; and have the capacity to groom recipients of it: [60]–[61], [69], [78].
In Burton v R, the offender transmitted messages describing sexual acts between himself and non-existent children to other adults (s 474.19 (rep)) and the Court found the seriousness of the offence was informed by the nature and content of the material together with the possibility of the CAM being seen by either vulnerable recipients or those susceptible to act in the ways described (factors 12 and 13): [36].
In R v LS [2020] NSWCCA 148, an appeal in relation to NSW CAM offences, the written description of sexual acts related to the married offenders’ children and, as it concerned real children who were also under the offender’s protection, the Court held the offending must be regarded as more serious than those involving imaginary children: [136]–[137]; Ponniah v The Queen [2011] WASCA 105 at [38]. See Lyons v The Queen for an example of CAM in a chatroom discussion.
It may assist in sentence proceedings for such offences, for the Crown to provide random sample evidence of the material so that something more than a formulaic classification which may not communicate its true nature is before the court: R v Porte [2015] NSWCCA 174 at [114]. Such evidence is permitted under s 289B Criminal Procedure Act 1986. However, where there is an adequate written description of the material, it will not be essential for the judicial officer to view a sample in order obtain a full appreciation of the offence: R v Hutchinson at [49]–[50]; [90]; cf Smit v State of Western Australia [2011] WASCA 124 at [17].
Other objective factors which may be relevant when assessing the objective seriousness of CAM offences include:
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Harm to victims
In Kannis v R [2020] NSWCCA 79, the offending included the soliciting of CAM from three children (s 474.19 (rep)) and the Court found the implicit presumption a child has suffered harm as a result of prohibited sexual activity applied to this offending: [125]–[128]; see also discussion of Adamson v R (2015) 47 VR 268 below at [17-760] Grooming and procuring a child for sexual activity and Victim of the offence — personal circumstances and victim impacts statements: ss 16A(2)(d), (ea), 16AAAA and 16AB in [16-025] Section 16A(2) factors.
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“Rolled up” charges
On a plea of guilty, the parties may agree to “roll up” multiple instances of the same offence into a single charge. This is not uncommon where the sentence concerns large quantities of CAM. In R v De Leeuw, the offender accessed large amounts of CAM on the internet over 7 years and the Court held each of the three “rolled up” charges involved numerous episodes of criminal conduct which magnified the objective gravity of each offence: [116]. In DPP v Watson [2016] VSCA 73, the Court held the sentence imposed for one “rolled up” offence contrary to s 474.19 (rep) was inadequate to reflect that it encompassed the soliciting of CAM from 10 children: [77], [93].
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Other Commonwealth offences the offender admits and wishes to have taken into account on sentence under s 16BA Crimes Act (see Taking other offences into account: ss 16A(2)(b) and 16BA in [16-025] Section 16A(2) matters).
[17-760] Grooming and procuring a child for sexual activity offences
This discussion relates to the Commonwealth offences of using a carriage service to groom (s 474.27 Criminal Code) and procure a child for sexual activity (s 474.26 Criminal Code). The State offences of grooming and procuring a child for sexual activity (s 66EB Crimes Act 1900) are discussed at [17-535] Procuring or grooming: s 66EB.
In relation to offences relating to use of a carriage service involving sexual activity with, or causing harm to, person under 16 in Div 474, subdiv F, which includes ss 474.26, 474.27, in addition to the matters in s 16A(2), the court is required to take into account, where known:
- (a)
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The age and maturity of the person in relation to whom the offence was committed, if relevant;
- (b)
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If that person was under 10 when the offence was committed, that fact aggravating the seriousness of the related criminal behaviour;
- (c)
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The number of people involved in the commission of the offence, if relevant: s 474.29AA.
Nature and circumstances of offence (s 16A(2)(a) Crimes Act)
In Tector v R [2008] NSWCCA 151, the Court found the following factors in the case relevant to the assessment of criminality for three offences of procuring a child for sexual activity (s 474.26(1)):
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the child’s age;
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the age differential between the offender and the child;
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the offender’s efforts to preserve his anonymity;
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the offender’s persistence in contacting the child;
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the financial inducement offered; and
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the nature of the sexual activity proposed, although it may be open on the facts for a judge not to accept that the proposal was a true reflection of the sexual activity intended: [94]–[99].
In Lazarus v R [2023] NSWCCA 214, the Court held the offender’s persistent and predatory behaviour over eight years involving more than one victim and the use of another person’s identity were relevant to assessing the objective seriousness for offences including procuring a child for sexual activity (s 474.26(1)): [31], [80].
For a serious example of grooming (s 474.27(1)) where the much older offender exploited a child’s emotional vulnerability and subjected her to sustained, predatory communications for over a month, see Small v R [2020] NSWCCA 216 at [54].
Harm to victim (s 16A(2)(e), (ea))
The presumption a child has suffered harm applies to online grooming (s 474.27(1), (2)) and procuring (s 474.26(1)) where the offender has engaged with a child: Adamson v The Queen [2015] VSCA 194 at [47]; R v Kannis [2020] NSWCCA 79 at [126]. In Adamson v The Queen the Court concluded at [56]–[57]:
The persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than to “in person” offences. The presumed harm need not be immediate and manifest, but includes the danger of future harm. The presumption arises by way of inferential reasoning, and the objective gravity of the offending is informed by the content of the communications. Where there is evidence of manifested harm, the nature of that harm may aggravate the offending.
…
Where the content of the activity is less sexually explicit, the objective gravity of the offence may correspondingly be reduced. In some instances the presumption of harm may be rendered almost negligible. The offender may rebut the presumption by adducing or identifying evidence establishing that no harm has, in fact, been caused. Ordinarily it will be difficult to overcome the persuasive effect of the presumption. Ultimately, it is for the sentencing judge to be satisfied to the criminal standard that harm should be presumed.
The presumption does not apply where the offender has been communicating with a person who assumed the identity of a child: Adamson v The Queen at [30]; see also R v Bredal [2024] NSWCCA 75 at [114].
R v Kannis is a case where a victim impact statement illustrated the harms caused by a grooming offence (s 474.27(1)) which included humiliation, anxiety and ongoing fears about intimate material remaining on the internet: [119]–[123].
[17-770] Subjective factors (including relevant s 16A(2) matters)
Section 16A(2)(m) provides an offender’s character (subject to s 16A(2)(ma)), antecedents, age, means and physical or mental condition are also matters to be taken into account on sentence.
Other matters that are personal to an offender under s 16A(2) Crimes Act include any guilty plea (s 16A(2)(g), co-operation or assistance (s 16A(2)(h)) and the probable effect of any sentence on the offender’s family or dependents (s 16A(2)(p)). These are discussed in more detail in [16-010] General sentencing principles applicable.
Some subjective factors such as an offender’s background and mental condition may also be relevant to the assessment of their moral culpability for the offending.
Good character
Generally prior good character will be given limited weight for sexual offences against children, including offences involving CAM: DPP (Cth) v D’Alessandro [2010] VSCA 60; R v Porte [2015] NSWCCA 174 at [126]. However, in Henderson v The King [2024] ACTCA 3 at [52], the ACT Court of Appeal took the offender’s prior good character into account, but found it did not mitigate the seriousness of offences of possessing and transmitting CAM.
Section 16A(2)(ma) Crimes Act provides that where a person’s community standing aided the commission of the offence, this aggravates the seriousness of the offending. Section 16A(2)(ma) applies to Commonwealth offenders charged with, or convicted of, an offence from 20 July 2020.
Mental condition
For a detailed discussion of the relevance of a mental health condition, see [10-460] Mental health or cognitive impairment.
Examples of cases involving Commonwealth child sex offences where a mental health condition has been taken into account include:
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Kannis v R [2020] NSWCCA 79, where the Court found the offender’s mental health condition (major depressive disorder with some borderline personality traits) reduced his moral culpability for online grooming and CAM offences: [299].
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DPP (Cth) v Beattie [2017] NSWCCA 301, where the Court found the offender’s paraphilic disorder provided an explanation for the offending and reduced his moral culpability “to some extent”, but also heightened the need for specific deterrence: [205].
Psychiatric or psychological reports may also contain material relating to motive. For example, offending related to learned behaviour from early exposure to CAM (Puhakka v R [2009] NSWCCA 290 at [8]) and confusion about an offender’s sexual identity (R v Booth [2009] NSWCCA 89 at [16]).
Rehabilitation
While the prospect of rehabilitation is to be taken into account on sentence under s 16A(2)(n) Crimes Act, the Court must ensure it is not given undue focus at the expense of other important sentencing considerations such as general deterrence and denunciation: R v Porte [2015] NSWCCA 174 at [71]–[72]; R v Booth [2009] NSWCCA 89 at [47]; see also discussion of Proportionality in [17-730] General sentencing principles.
When sentencing for a Commonwealth child sex offence, s 16A(2AAA) provides the court must have regard to the objective of rehabilitating the offender, by considering treatment options. This includes, when determining the length of a sentence of imprisonment or non-parole period, that there is sufficient time for the offender to undertake a rehabilitation program.
The Explanatory Memorandum to the amending legislation, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 at [255] to [258] states:
[255] This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity.
[256] This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program.
In Darke v R [2022] NSWCCA 52, the Court held it was an error not to consider an offender’s rehabilitation when sentencing for Commonwealth child sex offences: [35]–[36]; see also Henderson v The King [2024] ACTCA 3 at [52].
In Curle v R [2024] NSWCCA 117, the Court held s 16A(2AAA) does not require a sentencing judge to identify how a period of imprisonment takes into account the rehabilitation objective, and nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence where it may have an adverse impact upon an offender’s rehabilitation: [52].
Youth
In Clarke-Jeffries v R [2019] NSWCCA 56, the Court found the offender’s criminality for offending including online soliciting of CAM from a child (s 474.17 (rep)) and online procuring (s 474.26(1)) was reduced by his youth and immaturity which had materially contributed to the offending: [50]–[51]. The Court also found the offender’s youth was of significance because this “was not a case of a person of mature years grooming a much younger victim” where the offender was aged 18, and the child victim aged 15: [52]; see also Kannis v R.
See also general discussion of sentencing principles relevant to young offenders at [10-440] Youth.
[17-780] Penalties for some Commonwealth child sex offences
This section should be read in conjunction with [16-030] Penalties that may be imposed. See also Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024.
Special penalty provisions apply to some Commonwealth child sex offences committed on or after 23 June 2020.
Imprisonment
Mandatory minimum penalties apply to offences specified in ss 16AAA–16AAB Crimes Act: see [17-790] Mandatory minimum penalties.
Further, s 19(5) Crimes Act provides a presumption that sentences of imprisonment for Commonwealth child sex offences are to be entirely cumulative upon other child sex offences (including Commonwealth offences and State or Territory registrable child sex offences). However, the court may, with reasons, impose a sentence in a different manner if it results in sentences of a severity appropriate in all the circumstances: s 19(6)–(7). This suggests the presumption does not unduly fetter the sentencing exercise, and principles of totality still apply: Mertell v DPP (Cth) [2022] ACTCA 69 at [18].
Recognizance release orders (Crimes Act, s 20(1)(b))
Section 20(1B) specifies conditions to be imposed on a recognizance release order where at least one offence is a Commonwealth child sex offence. Those mandatory conditions concern supervision, treatment, and travel restrictions. Section 20(1)(b)(ii), (iii) also provides a presumption the offender will serve a minimum period of imprisonment before release unless the court is satisfied there are “exceptional circumstances”. “Exceptional circumstances” is not defined but its meaning is discussed in R v Bredal [2024] NSWCCA 75 at [58]–[65]. The term “exceptional” in the context of s 20(1)(b) requires the circumstances to be sufficiently “exceptional” such that, despite a period of imprisonment being required, the offender should not be required to serve any part of it in actual custody: [63]. Factors, each not in itself exceptional, may in combination demonstrate the circumstances are exceptional: [61]; Griffiths v The Queen (1989) 167 CLR 372 at 379. Also, although a finding in relation to exceptional circumstances is a step in the sentencing process, it is not made in a vacuum and instinctive synthesis remains engaged: [63].
Intensive correction orders
Under s 67(2) Crimes (Sentencing Procedure) Act 1999, an intensive correction order (ICO) is not available for a “prescribed sexual offence” which is defined to include most Commonwealth child sex offences. For further detailed discussion, see Additional sentencing alternatives: s 20AB in [16-030]; Intensive correction orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff and particularly Federal offences at [3-680].
[17-790] Mandatory minimum penalties
In addition to immediate release on recognizance not being available for Commonwealth child sex offences unless there are “exceptional circumstances” (see also Recognizance release orders (Crimes Act, s 20(1)(b)) above at [17-780]), ss 16AAA, 16AAB(2) provide for mandatory minimum sentences which apply to some, but not all, Commonwealth child sex offences. Subject to the exclusions and reductions in s 16AAC:
-
s 16AAA provides the offences in column 1 where the court must impose a sentence of imprisonment of at least the period of imprisonment specified in column 2; and
-
s 16AAB(2) provides the offences in column 1 where, in relation to a person who has been previously convicted of a “child sexual abuse offence” (see s 3), the court must impose a sentence of imprisonment of at least the period specified in column 2.
All of the offences listed in s 16AAA are strictly indictable. Section 16AAB(2) includes strictly indictable offences, and offences with a maximum penalty of 10 years or less which may be dealt with summarily: s 4J Crimes Act. See Local Court Bench Book at Dealing with certain indictable offences summarily and Penalty at [18-060].
Section 16AAC provides:
- (1)
-
Sections 16AAA and 16AAB(2) do not apply to persons who, when the offence in column 1 was committed, was under 18 years of age.
- (2)
-
A sentence of imprisonment less than that specified in column 1 in ss 16AAA and 16AAB(2) may be imposed if the court considers it appropriate to reduce the sentence because of:
- (a)
-
A plea of guilty (s 16A(2)(g)), and/or
- (b)
-
Cooperation with law enforcement agencies in the investigation of the offence or a Commonwealth child sex offence (s 16A(2)(h)).
- (3)
-
If a court may reduce a sentence, it may do so as follows:
- (a)
-
In relation to s 16A(2)(g), a reduction by an amount up to 25% of the period specified in column 2 of the relevant table;
- (b)
-
In relation to s 16A(2)(h), a reduction by an amount up to 25% of the period specified in column 2 of the relevant table;
- (c)
-
In relation to both s 16A(2)(g) and (h), a reduction by an amount up to 50% of the period specified in column 2 of the relevant table.
See Table 1: Commonwealth child sex offences table at [17-800].
Transitional provision
The transitional provision provides ss 16AAA and 16AAB apply where the “relevant conduct” was “engaged in” on or after 23 June 2020: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020, Sch 6, item 3.
The High Court in Hurt v The King [2024] HCA 8 held the transitional provision is concerned with “acts rather than the results of those acts or the circumstances in which they occur”: [12]–[15]; [80]–[81]. Accordingly, the High Court found s 16AAB applied to a s 474.22A(1) offence of possess CAM accessed using a carriage service where the offender had possession of it after 23 June 2020, but accessed some/all of it before that date: [11]; [82]–[84].
Applying the mandatory minimum penalty
The majority in the High Court in Hurt v The King (Edelman, Steward and Gleeson JJ) held a mandatory minimum penalty has the following “double function” in sentencing proceedings:
-
to restrict sentencing power to the minimum period of imprisonment, subject to the exceptions in s 16AAC; and
-
to provide a sentencing yardstick, the opposite of the maximum term of imprisonment, for the exercise of the sentencing discretion: [54]; see also Gageler CJ and Jagot J at [33], [43].
As the yardstick approach imposes an increased starting point for the appropriate term of imprisonment for a specified offence in the least serious circumstances, it operates to increase the appropriate term of imprisonment generally: Hurt v The King at [50]–[51]; [54].
When mandatory minimum penalty provisions were introduced, the yardstick approach to minimum penalties had been adopted consistently throughout Australia in relation to “people-smuggling offences” in the Migration Act 1958 (Cth): Hurt v The King at [89], citing Bahar v R (2011) 45 WAR 100. In R v Delzotto [2022] NSWCCA 117, one of the decisions appealed to the High Court in Hurt v The King, the Court of Criminal Appeal concluded there is no relevant distinction between the Migration Act 1958 (Cth) provisions considered in Bahar v R and s 16AAB warranting a different conclusion about the applicability of the “Bahar approach”: [89]–[90].
Reduction below the mandatory minimum sentence
The discounts associated with an offender’s plea of guilty (s 16A(2)(g)) and/or cooperation with law enforcement agencies (s 16A(2)(h)), by up to 25% each, could result in the reduction of an offender’s sentence below the prescribed minimum: Hurt v The King at [103]; ss 16AAB(2), 16AAC(2), (3). This does not detract from the role of the minimum sentence as a yardstick, but rather the process contemplated by s 16AAC reinforces the yardstick role of the minimum sentence: Hurt v The King at [104].
The majority in the High Court stated:
The discretion in s 16AAC(2) applies where it is “appropriate to reduce the sentence”, implying that a legitimate procedure will involve determining a prima facie sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount. The subsequent and transparent consideration of the discounts [for the plea of guilty and cooperation with law enforcement agencies] reinforces the utilitarian goals underlying those considerations: [104].
A different approach was taken in Trinh v The King [2024] VSCA 61 at [44] (a post Hurt v The King decision). See also ch 7.3, Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024.
Applicability to non-custodial orders
It is unclear whether non-custodial orders under s 19B (bond without conviction) and s 20(1)(a) (recognizance without passing sentence) as well as sentences under s 20(1)(b) (imprisonment where the court directs an offender’s release upon security, including an immediate release in exceptional circumstances) would be available for an offence to which a minimum penalty applies. The majority in Hurt v The King (Edelman, Steward and Gleeson JJ) held it was unnecessary to resolve the issue: [98]–[101]. While the minority (Gageler CJ and Jagot J) held the minimum penalty represents “…Parliament’s view of the least worst possible case warranting imprisonment” and its application “presupposes both conviction and that the court has decided, first, to impose a sentence of imprisonment (thereby excluding s 19B and s 20(1)(a)), and, second, that the sentence of imprisonment is not to be subject to any direction under s 20(1)(b)”: [34]–[35]. See also R v Taylor [2022] NSWCCA 256 at [63]; Bahar v R at [53], both decided before Hurt v The King.
See also Sentencing of federal offenders in Australia — a guide for practitioners, Commonwealth Director of Public Prosecutions, 7th edn, 2024, ch 7.3.
[17-800] Table of Commonwealth child sex offences, related provisions and resources
Case digests, case summaries, sentencing statistics and other material relating to the offence available on JIRS may be accessed by clicking on the legislative provision in the table below.
Table 1: Commonwealth child sex offences (related provisions and resources)
Criminal Code Section |
Offence Description |
Max Penalty (yrs) |
Crimes Act Min Penalty (yrs) *s 16AAA1 **s 16AAB2 |
---|---|---|---|
272.8 (1)–(2) |
Sexual intercourse with child outside Australia (Aust) |
25 |
*6 |
272.9 (1)–(2) |
Sexual activity (other than sexual intercourse) with child outside Aust |
20 |
*5 |
272.10 (1) |
Aggravated sexual intercourse or other sexual activity with child outside Aust |
Life |
*7 |
272.11 (1) |
Persistent sexual abuse of child outside Aust |
30 |
*7 |
272.12 (1)–(2) |
Sexual intercourse with young person outside Aust |
10 |
**3 |
272.13 (1)–(2) |
Sexual activity (other than sexual intercourse) with young person outside Aust |
7 |
**2 |
272.14 (1) |
Procure child to engage in sexual activity outside Aust |
15 |
**4 |
272.15 (1) |
Groom child to engage in sexual activity outside Aust |
15 |
**4 |
272.15A (1) |
Groom person to make it easier to engage in sexual activity with child outside Aust |
15 |
**4 |
272.18 (1) |
Benefit from child sex offence outside Aust |
25 |
*6 |
272.19 (1) |
Encourage child sex offence outside Aust |
25 |
*6 |
272.20 (1) |
Prepare/Plan ss 272.8, 272.9, 272.10, 272.11 or 272.18 offence against child |
10 |
**3 |
272.20 (2) |
Prepare/Plan ss 272.12 or 272.18 offence against young person | 5 | **1 |
273.6 (1) |
Possess, control, produce, distribute, or obtain CAM outside Aust |
15 |
**4 |
273.7 (1) |
Aggravated s 273.6 offence |
30 |
*7 |
273A.1 |
Possess child-like sex dolls 21.9.2019 – |
15 |
**4 |
471.19 (1)–(2) |
Use postal or similar service for child pornography |
15^ |
**4 |
471.20 (1) |
Possess, control, produce, supply or obtain CAM through a postal or similar service |
15 |
**4 |
471.22 (1) |
Aggravated s 471.19 or 471.20 offence |
30^^ |
*7 |
471.24 (1)–(3) |
Use postal or similar service to procure persons under 16 |
15 |
**4 |
471.25 (1)–(3) |
Use postal or similar service to groom persons under 16 |
15 |
**4 |
471.25A (1)–(3) |
Use postal or similar service to groom another person to make it easier to procure persons under 16 |
15 |
**4 |
471.26 (1) |
Use postal or similar service to send indecent material to person under 16 |
10 |
**3 |
474.22 (1) |
Use carriage service for CAM |
15^ |
**4 |
474.22A (1) |
Possess or control CAM obtained accessed by carriage service |
15 |
**4 |
474.23 (1) |
Possess, control, produce, supply or solicit CAM through carriage service |
15^ |
**4 |
474.23A (1) |
Create, control promote etc CAM to commit or facilitate ss 474.22(1), 474.22A(1) or 474.23 offences |
20 |
*5 |
474.24A |
Aggravated offence — CAM — conduct on 3 or more occasions and 2 or more people |
30^^ |
*7 |
474.25A (1)–(2) |
Use carriage service for sexual activity with person under 16 | 20^^ | *5 |
474.25B (1) |
Aggravated s 474.25A offence | 30^^ | *7 |
474.25C |
Use carriage service to prepare or plan to cause harm, engage in sexual activity or procure persons under 16 to engage in sexual activity |
10 |
n/a |
474.26 (1)–(3) |
Use carriage service to procure persons under 16 |
15 |
**4 |
474.27 (1)–(3) |
Use carriage service to groom person under 16 |
15 |
**4 |
474.27AA (1)–(3) |
Use carriage service to groom another person to make it easier to procure persons under 16 |
15 |
**4 |
474.27A (1) |
Use carriage service to transmit indecent communication to person under 16 |
10 |
**3 |
[^] Maximum penalties for ss 471.19(1), (2), 474.22(1) and 474.23(1) apply to offences committed on or after 15 April 2010. The maximum penalty for offences committed before that date was 10 years imprisonment.
[^^] Maximum penalties apply to offences committed from 23 June 2020. For offences committed before that date the maximum
penalty for offences contrary to ss 471.22(1), 474.24A and 474.25B was 25 years imprisonment. For an offence contrary to s 474.25A(1)–(2),
the maximum penalty was 15 years.
See also Criminal Trial Courts Bench Book at [5-1300] for a table of NSW and Commonwealth sexual offence provisions which includes the time period the provision was in force, the maximum penalty, and the standard non-parole period (if applicable).