Sentencing Bench Book — Particular offences

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:

According to R v PGM [2008] NSWCCA 172 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.

Note: Judicial consideration of the former s 25AA, which is discussed below, may guide the application of s 21B to historical child sexual offences for proceedings commenced on or after 18 October 2022.

In R v Cattell [2019] NSWCCA 297 at [123], Price J said a court sentencing an offender for an offence falling within s 25AA should:

The sentencing court should expressly state that the offender has been sentenced in accordance with s 25AA(1) and explain how the court has had regard to the trauma of sexual abuse on the child: R v Cattell at [125].

The breadth of conduct encompassed by a particular historical offence is likely to influence the identification of where a particular offence falls in the range of objective seriousness. This assumes some significance when s 25AA applies because certain historical offences incorporated conduct which is now the subject of separate offences with significantly higher maximum penalties. For example, the offence of indecent assault in s 81 Crimes Act 1900 (rep) which carried a maximum penalty of 5 years included conduct that would now constitute sexual intercourse. Part of the rationale for the increased, or changed, penalties is recognition of the harm caused by these offences: see, for example, MC v R [2017] NSWCCA 316 at [40]–[44]; Woodward v R [2017] NSWCCA 44 at [46]–[54].

Decision Restricted [2020] NSWCCA 275 and WB v R [2020] NSWCCA 159 include some general observations about how the requirements of s 25AA can be satisfied given what is now known about the long-term effects of child sexual abuse when the maximum penalties for historical offences were lower than for current offences. In WB v R, Davies J (Bell P and N Adams J agreeing) acknowledged, in relation to the s 81 (rep) offences the subject of appeal in that case, that it had been superseded by offences with higher penalties, observing at [63]:

The operation of s 25AA was not otherwise considered in that case. Subsequently in Decision Restricted [2020] NSWCCA 275, N Adams J (Rothman J agreeing) after endorsing that aspect of WB v R said, at [164], that “it may well be easier to make a finding of substantial injury to a child for a sentence imposed on a historical child sexual assault offence after the enactment of s 25AA if the maximum penalty is so low as to enable a conclusion that the significant lifelong trauma such offending can inflict on a child is not already reflected in the maximum penalty.” In that case one of the grounds of the Crown appeal against sentence, which was accepted by the court, was that the impact of the offending on the victims was not reflected in the aggregate sentence that had been imposed.

However, the impact of offending on the victim is taken into account under s 3A(g) Crimes (Sentencing Procedure) Act. Recognition of the harm caused by child sexual assault is a necessary incident of sentencing in such cases in any event and, where there is evidence, substantial harm caused to a victim falling within s 21A(2)(g) is taken into account: see further [12-830] Evidentiary status and use of victim impact statements on sentence and [12-832] Victim impact statements and harm caused by sexual assault.

Where there are numerous sexual offences and some occur when the victim is 16 or 17 years old, the sentencing court must expressly state when s 25AA applies and when it does not: R v Cattell at [115]–[116]. In Franklin v R [2019] NSWCCA 325 the applicant’s offending extended over a period when the victim was between five and 17 years old. The court dismissed the appeal but said if it had been necessary to resentence, s 25AA could only apply to the offences committed when the victim was under 16 years old and general law principles with respect to sentencing for historical sexual offences would apply to the balance: at [145]. As to the difficulties of applying the principle of totality in this situation, see R v Cattell at [152]. There is a degree of artificiality in attempting to do so. See also Cunningham v R [2020] NSWCCA 287 at [32]–[33].

Section 21B applies if a juvenile offender commits a child sexual offence but is sentenced as an adult. In JA v R [2021] NSWCCA 10 at [62] the court (considering the former s 25AA) commented on the difficulties in sentencing in such circumstances.

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

H Donnelly “Sentencing according to current and past practices”, paper presented at Sentencing: New Challenges conference, National Judicial College of Australia on 29 February 2020 at https://www.njca.com.au/wp-content/uploads/2023/03/1.pdf, accessed 22 July 2021.

Section 80AE explicitly states that consent is not a defence to a charge under ss 61E(1A), 61E(2), 61E(2A),  61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 67 (rep), 68 (rep), 71 (rep), 72 (rep), 72A (rep), 73, 73A, 74 (rep) or 76A (rep), or to a charge under ss 61E(1) (rep), 61L (rep), 61M(1), or 76 (rep) 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.

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]:

Where committed on or after 29 June 2015, the offence is subject to a standard non-parole period of 10 years.

It had been held that if a jury returns a guilty verdict to a s 66EA offence committed before 1 December 2018, 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]. This is consistent with the duty of the judge to determine the facts relevant on sentence: ARS v R at [233] citing R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen (2001) 209 CLR 1 at [4]–[8], [161]–[166]. This approach was questioned in Chiro v The Queen (2017) 260 CLR 425, where the High Court analysed a materially similar South Australian provision to s 66EA and held that Cheung v The Queen did not concern a persistent abuse offence and is not authority for the proposition that questions should not be asked of a jury (as to which of the acts the Crown had proved). Kiefel CJ, Keane and Nettle JJ at [52] said:

Bell J agreed, at [67], that “the exercise of discretion following the return of a verdict of guilty will usually favour asking the jury to identify those acts which it finds proved”. It was not open for the sentencing judge to sentence the appellant on the basis he had committed all the acts charged as such an approach was contrary to the De Simoni principle: at [72]. See also the plurality at [44].

However, in R v RB [2022] NSWCCA 142, which related to a s 66EA offence committed after 1 December 2018, the court did not apply Chiro v The Queen on the basis s 66EA(5)(c) provides that the members of the jury are not required to agree on which unlawful acts constitute the unlawful sexual relationship. Accordingly, the jury must be taken to have made no findings as to which unlawful sexual acts constituted the offence, and a trial judge is required to determine the facts of offending applying the principles established in The Queen v Olbrich (1999) 199 CLR 270, Cheung v The Queen and R v Isaacs: at [43]–[45], [70] (also see [71]–[77] for a further discussion of the sentencing exercise after a jury’s guilty verdict).

When sentencing an offender for a s 66EA offence committed on or after 1 December 2018, a consideration of the conduct constituting the unlawful sexual acts towards the child is integral to the assessment of objective seriousness: GP (a pseudonym) v R [2021] NSWCCA 180 at [65]. The offence potentially embraces a wide range of circumstances: Towse v R [2022] NSWCCA 252 at [13]. A number of factors bear upon an assessment of the objective seriousness of a s 66EA offence as observed in Burr v R [2020] NSWCCA 282 (see non-exhaustive list at [106]) and these factors are also relevant when sentencing for a s 66EA offence committed on or after 1 December 2018: GP (a pseudonym) v R at [64]; see also Towse v R at [26]. Regard should also be had to the maximum penalty of 25 years imprisonment for a s 66EA offence committed before 1 December 2018, and life imprisonment for an offence on or after 1 December 2018.

It is not logical to approach the sentencing task by considering what sentences the individual offences (or unlawful sexual acts for an offence committed on or after 1 December 2018) would have attracted had they been charged as isolated offences: R v Fitzgerald (2004) 59 NSWLR 493. There is nothing to suggest 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: R v 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 court can still sentence on the basis 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].

See Hitchen v R [2010] NSWCCA 77 for a case where the court accepted the sentencing judge’s finding that the criminality of a s 66EA offence committed before 1 December 2018 was found to be in the worst category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256; see [10-005] Cases that attract the maximum); see also Hitchen v R at [11]–[14].

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).

See generally the discussion at [10-005] Cases that attract the maximum.

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] NSWCCA 172 at [31], applying GAT 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] NSWCCA 260 at [42]–[43]; R v AJP [2004] NSWCCA 434 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.

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:

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

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

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

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, $18,000).

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 [16-000].

A combination of Commonwealth and State offences is not uncommon in a child pornography matter: R v Porte at [55]. Although the offences overlap, they are not identical. Commonwealth offences focus on the internet and the role it plays as the heart of the child pornography industry, whereas State offences are not concerned with the means by which the offender gains possession of the material: R v Porte at [56]; R v Fulop [2009] VSCA 296 at [11]–[12].

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, 2010. As a general rule, the same sentencing principles apply regardless of whether the court is dealing with a State or Commonwealth offence.

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:

In R v Gent [2005] NSWCCA 370 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:

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 Assheton v R (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:

In R v Porte [2015] NSWCCA 174 at [63]–[64], the court said the sentencing principles set out in Minehan v R remain relevant and have been applied in numerous decisions including: R v Linardon [2014] NSWCCA 247; R v Martin [2014] NSWCCA 283; James v R [2015] NSWCCA 97. The court added to these principles the following considerations:

R v Porte was applied in R v De Leeuw [2015] NSWCCA 183 at [70]. See also Lyons v R [2017] NSWCCA 204 at [76].

The use of scales, such as the CETS (Child Exploitation Tracking System) scale, to categorise the material is a helpful way to assist a sentencing court in assessing the objective seriousness of the offence: R v Porte at [75]. It is of further assistance to provide random sample evidence of the material to the court so that it has before it something more than a formulaic classification which may not communicate the true nature of the material: R v Porte at [77], [114]. Such evidence is permitted under s 289B Criminal Procedure Act 1986.

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. The court in R v Porte at [62] described the monograph as a helpful publication.

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”. Offences contrary to s 91G(1) committed on or after 29 June 2015 attract a standard non-parole period of 6 years.

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 (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256; see [10-005] Cases that attract the maximum): Hitchen v R 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”: Hitchen v R 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) [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 (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256; see [10-005] Cases that attract the maximum).

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.

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).

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).

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).

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.

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]. The judge erred in R v Nelson [2016] NSWCCA 130 by describing, as a factor in the respondent’s favour, the offences as “consensual”. “Consensual” is not a proper description; the offending may be better described as not being the subject of opposition. Lack of consent is not an element of the offences because the law deems persons of that age unable to give informed consent. While the use of threats or force would have aggravated the offending, mere lack of opposition is irrelevant and not a mitigating factor: R v Nelson at [23]. The age difference between the victims and the respondent was significant: R v Nelson at [25], [64].

The Crimes Amendment (Sexual Offences) Act 2008 inserted special rules for child sexual offences: s 21A(5A), (5B) Crimes (Sentencing Procedure) Act (effective 1 January 2009). Section 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 (unrep, 24/4/97, NSWCCA) ; R v Elliot [2008] NSWDC 238 at [42]; Mouscas v R [2008] NSWCCA 181 at [37]; R v PGM [2008] NSWCCA 172 at [43]–[44] and Dousha v R [2008] NSWCCA 263 at [49].

In R v PGM [2008] NSWCCA 172 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].

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.

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:

In the case of child sexual assault, however, an offender should not benefit from the fact offences are not revealed until many years after they were committed. In R v Moon [2000] NSWCCA 534 at [35], the court held the 30-year delay in complaint should not be taken into account as a mitigating factor, noting it was the very nature of the relationship between offender and child that leads to repression, inhibition and delayed complaint. Similarly, in Richards v R [2023] NSWCCA 107, the court held a 34-year delay in complaint did not operate as a mitigating factor, noting child sexual assault victims are loath to report matters because of fear, trauma and shame: at [94]. Where an offender remains silent, hoping the offences will not be discovered, a reduced sentence is inappropriate: Richards v R at [89]–[91], [95]–[96]; see also Beech-Jones CJ at CL at [3]–[4]; distinguishing R v Todd [1982] 2 NSWLR 517 at 519–520.

In R v Dennis (unrep, 14/12/92, NSWCCA), an authority cited in Richards v R, 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. James J, Hunt CJ at CL and Carruthers J agreeing, said:

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:

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]:

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]:

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]:

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].

The Pre-Trial Diversion of Offenders Act 1985 applied 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 established 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.

Following the repeal of the Pre-Trial Diversion of Offenders Regulation 2005 on 1 September 2012, the program closed. See Attorney General for NSW v CMB [2015] NSWCCA 166 at [5]–[12] for a legislative history.

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

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 (unrep, 3/6/88, NSWCCA); 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.

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:

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.

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. See the discussion about an offender’s mental condition and Muldrock v The Queen (2011) 244 CLR 120 at [10-460].

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 (unrep, 20/11/95, NSWCCA); 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 [7-890].

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.

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 (unrep, 5/5/93, NSWCCA). In R v Holyoak (unrep, 1/9/95, NSWCCA), 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:

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] NSWCCA 260 at [49]–[50].

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] NSWCCA 70 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]:

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.