Sexual offences against children
This chapter should be read in conjunction with Sexual assault at [20-600]ff.
[17-400] Change in community attitudes to child sexual assault
The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW  NSWCCA 60 at , where Sheller JA stated:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154.
The case of R v Fisher (unrep, 29/3/89, NSWCCA) at 6 is also frequently cited:
This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …
This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …
Tampering with children of tender years is a matter of grave concern to the community: R v Evans (unrep, 24/3/88, NSWCCA).
The courts have recognised a change in community attitudes to child sexual assault. In R v MJR (2002) 54 NSWLR 368 at , Mason P expressed the view that there has been a pattern of increasing sentences for child sexual assault and that this:
… has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes.
See also Sexual assault at [20-610].
In R v ABS  NSWCCA 255 at , Buddin J, with whom Brownie AJA and Latham J agreed, said:
Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance.
According to R v PGM  NSWCCA 172 at , 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.
[17-410] Sentencing for historical child sex offences — s 25AA
Section 25AA(1) Crimes (Sentencing Procedure) Act 1999 provides that a court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentence, not the time of the offence. The provision took effect on 31 August 2018: Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, s 2; LW 31.08.2018.
“Child sexual offence” is defined in s 25AA(5). It does not matter when the offence was committed but s 25AA only applies if, at the time, the victim was under 16 years old.
The provision overrides the common law principle expressed in R v MJR (2002) 54 NSWLR 368 that a court must apply the sentencing patterns and practices existing at the time of the offence: Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, NSW, Legislative Assembly, Debates, 6 June 2018, p 7. As to the rationale for the enactment of s 25AA and the previous common law see: R v Cattell  NSWCCA 297 at –; Corliss v R  NSWCCA 65 at – (Johnson J); – (Lonergan J).
In addition to sentencing in accordance with sentencing patterns and practices at the time of sentence, the court must also have regard to the trauma of sexual abuse on children as understood at the time of sentence, which may include recent psychological research or the common experience of courts: s 25AA(3). Justice Price, in R v Cattell at , said “current sentencing practices” understand the harmful effects of sexual offending against children and would also include the court setting a non-parole period in accordance with s 44 Crimes (Sentencing Procedure) Act 1999.
Sentencing practices and patterns are not defined. Given the relatively recent enactment of s 25AA, parties will be unable to provide sufficient Judicial Commission statistical material to assist the court in determining “current sentencing patterns”: R v Cattell at .
The relevant standard non-parole period (if any) is that applying at the time of the offence: s 25AA(2).
Section 19, which deals with the effect of alterations in penalties, is not affected: s 25AA(4). Accordingly, the maximum penalty that applied when the offence was committed applies on sentence.
In Corliss v R, Johnson J described ss 25AA(2) and 25AA(4) as constituting “the express statutory qualifications to the otherwise absolute operation of [s 25AA]”: at . The overall effect of s 25AA is that, aside from the statutory guideposts of the maximum penalty and the applicable standard non-parole period, those matters previously identified as typically leading to a lesser sentence in historic cases cannot be taken into account. However, a court may consider the fact a historical offence encompassed a wider range of more serious conduct than would constitute the equivalent current offence: O’Sullivan v R  NSWCCA 261 at , .
The Local Court must apply s 25AA when sentencing for child sex offences: see for example DPP v IJL  NSWLC 2.
The approach to s 25AA
In R v Cattell  NSWCCA 297 at , Price J said a court sentencing an offender for an offence falling within s 25AA should:
take into account the sentencing pattern existing at the time of sentence where such a pattern is able to be discerned
determine the facts as now available to the court
have regard to the maximum penalty and standard non-parole period (if any) applying at the time of the offence
identify where the offence falls in the range of objective gravity
take into account any relevant aggravating and mitigating factors in s 21A(2) and (3)
set a non-parole period in accordance with s 44 as operative at the time of sentence
fix the balance of the term.
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 .
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  NSWCCA 316 at –; Woodward v R  NSWCCA 44 at –.
Decision Restricted  NSWCCA 275 and WB v R  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 :
Part of the reason for the heavier penalties is, obviously, that there is now much greater knowledge of the long-term effects of sexual abuse of a child or young person than was [previously] known... That may mean that it will be easier to find that damage or emotional harm is substantial where historical offences are dealt with under earlier legislation with much lower maximum penalties. Such an approach would not be inconsistent with the rationale behind s 25AA…
The operation of s 25AA was not otherwise considered in that case. Subsequently in Decision Restricted  NSWCCA 275, N Adams J (Rothman J agreeing) after endorsing that aspect of WB v R said, at , 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 –. In Franklin v R  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 . As to the difficulties of applying the principle of totality in this situation, see R v Cattell at . There is a degree of artificiality in attempting to do so. See also Cunningham v R  NSWCCA 287 at –.
Section 25AA applies if a juvenile offender commits a child sexual offence but is sentenced as an adult. In JA v R  NSWCCA 10 at  the court commented on the difficulties in sentencing in such circumstances.
Resentencing following successful appeal
The Court of Criminal Appeal is yet to authoritatively determine whether s 25AA applies where the court finds error with respect to a sentence passed before s 25AA commenced but is required to resentence after s 25AA commenced. In GC v R  NSWCCA 241, the court proceeded on the basis s 25AA would apply on re-sentence (error having been found). However, as the court would have imposed a higher sentence than that at first instance, the appeal was dismissed. In Corliss v R differing obiter observations were expressed on this issue. Johnson J (Lonergan J agreeing) concluded it was clear from the text of s 25AA that the legislature intended to abolish forthwith the general law principles relating to sentencing for historical child sexual offences and that s 25AA would have applied if the applicant had demonstrated error and it was necessary to re-sentence him: , , –. However, Brereton JA dissented on this issue: see at –. See also Franklin v R.
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://njca.com.au/wp-content/uploads/2020/03/Sentencing-for-historical-offences-Donnelly-H.pdf, accessed 22 July 2021.
[17-420] Statutory scheme in the Crimes Act 1900 (NSW)
Table 1 lists the provisions in the Crimes Act 1900 which create sexual offences against children.
Sections 61L and 61M(1) are sexual offences of general application that, in their standard form, apply both to adults and children (see s 77, discussed below). Sections 61N(1), 61O, 66A–66EB, 73, and 91G–91H Crimes Act 1900 specifically and exclusively pertain to sexual offences against children. Sections 61J, 61M(1), 61M(2), 80A(2A)(b), 80D(2) and 91J–91L pertain to sexual offences against children by way of aggravation.
Before the commencement of the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 on 17 September 2010, the Crimes Act 1900 defined “child pornography” as material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to a reasonable person, a person who is (or appears to be) a child:
engaged in sexual activity
in a sexual context, or
as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
For offences committed from 17 September 2010, such material, which is now more broadly defined, is referred to as “child abuse material” and is defined in s 91FB(1).
Table 1: Sexual offences against children under the Crimes Act 1900
Aggravated sexual assault
|20 [SNPP 10]||[17-505]|
|s 61M(1)||Aggravated indecent assault||7 [SNPP 5]||[17-510]|
|s 61M(2)||Aggravated indecent assault — child under 16 years||10 [SNPP 8]||[17-510]|
|s 61N(1)||Act of indecency — child under 16 years||2||[17-520]|
|s 61N(2)||Act of indecency — person 16 years or above||1.5||[17-520]|
|s 61O(1)||Aggravated act of indecency — child under 16 years||5||[17-520]|
|s 61O(1A)||Aggravated act of indecency — person 16 years or above||3||[17-520]|
|s 61O(2)||Aggravated act of indecency — child under 10 years||7||[17-520]|
|s 61O(2A)||Aggravated act of indecency — child under 16 years (knowing it to be filmed for producing child abuse (previously “child pornography”) material)||10||[17-520]|
|s 66A||Sexual intercourse — child under 10 years||life [SNPP 15]||[17-480]|
|s 66B||Attempting or assaulting with intent to have sexual intercourse with child under 10 years||25 [SNPP 10]||[17-480]|
|s 66C(1)||Sexual intercourse — child between 10 and 14 years||16 [SNPP 7]||[17-490]|
|s 66C(2)||Aggravated sexual intercourse — child between 10 and 14 years||20 [SNPP 9]||[17-490]|
|s 66C(3)||Sexual intercourse — child between 14 and 16 years||10||[17-490]|
|s 66C(4)||Aggravated sexual intercourse — child between 14 and 16 years||12 [SNPP 5]||[17-490]|
|s 66D||Attempting or assaulting with intent to have sexual intercourse with child between 10 and 16 years||as per s 66C(1) or s 66C(3)||—|
|s 66E||Alternative verdicts available||n/a||—|
|s 66EA||Persistent sexual abuse of a child||25||[17-500]|
|s 66EB(2)(a)||Procuring child for unlawful sexual activity — child under 14 years||15 [SNPP 6]||[17-535]|
|s 66EB(2)(b)||Procuring a child for unlawful sexual activity — child under 16 years||12 [SNPP 5]||[17-535]|
|s 66EB(2A)||Meeting a child following grooming for unlawful sexual activity — child under 14 years||15 [SNPP 6]||[17-535]|
|s 66EB(2A)||Meeting a child following grooming for unlawful sexual activity — child under 16 years||12 [SNPP 5]||[17-535]|
|s 66EB(3)(a)||Grooming a child for unlawful sexual activity — child under 14 years||12 [SNPP 5]||[17-535]|
|s 66EB(3)(b)||Grooming a child for unlawful sexual activity — child under 16 years||10 [SNPP 4]||[17-535]|
|s 73(1)||Sexual intercourse with child above 16 years and under 17 years who is under special care||8||[17-530]|
|s 73(2)||Sexual intercourse with child above 17 years and under 18 years who is under special care||4||[17-530]|
|s 80A(2A)(b)||Aggravated sexual assault by forced self-manipulation||20||[20-720]|
|s 80D(2)||Aggravated causing sexual servitude||20||[17-540]|
|s 80G||Incitement to commit a sexual offence||Same as penalty for substantive offence||[17-545]|
|s 91D(1)||Promoting or engaging in acts of child prostitution — child 14 years or above||10||[17-540]|
|s 91D(1)||Promoting or engaging in acts of child prostitution — child under 14 years||14 [SNPP 6]||[17-540]|
|s 91E(1)||Obtaining benefit from child prostitution — child 14 years or over||10||[17-540]|
|s 91E(1)||Obtaining benefit from child prostitution — child under 14 years||14 [SNPP 6]||[17-540]|
|s 91F(1)||Premises not to be used for child prostitution||7||[17-540]|
|s 91G(1)||Children not to be used for production of child abuse (previously “child pornography”) material — child under 14 years||14 [SNPP 6]||[17-541]|
|s 91G(2)||Children not to be used for production of child abuse (previously “child pornography”) material — child 14 years or above||10||—|
|s 91H(2)||Possession, production or dissemination of child abuse (previously “child pornography”) material||10||[17-541]|
|s 91J(1)||Voyeurism||100 penalty units or 2 years or both||[17-543]|
|s 91J(3)||Aggravated voyeurism||5||[17-543]|
|s 91K(1)||Filming a person engaged in a private act||100 penalty units or 2 years or both||[17-543]|
|s 91K(3)||Aggravated filming a person engaged in a private act||5||[17-543]|
|s 91L(1)||Filming a person’s private parts||100 penalty units or 2 years or both||[17-543]|
|s 91L(3)||Aggravated filming a person’s private parts||5||[17-543]|
[*] SNPP: Standard non-parole period
The offences in Table 1, with the exception of those created under s 73, reflect the fact that the Crimes Amendment (Sexual Offences) Act 2003 standardised the age of consent for both males and females at 16 years. Section 77 explicitly states that consent is not a defence to a charge under ss 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A(1), 66A(2), 66B, 66C, 66D, 66EA, 66EB and 73, or to a charge under s 61M(1) if the victim is a child under 16 years. Consent is also not a defence to a charge under s 91D: s 91D(3).
On conviction of a person for a sexual offence against a child, the court may refer the matter to an appropriate child protection agency if the child is under the authority of the offender: s 80AA.
[17-430] Standard non-parole periods
The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 introduced standard non-parole periods, as detailed in Table 1 at [17-420].
The effect of the introduction of standard non-parole periods will generally be an upward movement in the length of sentences for offences to which they apply: Muldrock v The Queen (2011) 244 CLR 120 at ; R v AJP  NSWCCA 434 at .
See further Move upwards in the length of non-parole periods? at [7-990].
[17-440] Section 21A Crimes (Sentencing Procedure) Act 1999
Section 21A was inserted into the Crimes (Sentencing Procedure) Act in 2002 and provides a non-exhaustive list of aggravating and mitigating factors to be taken into account in determining the appropriate sentence for an offence. The weight of authority indicates that Parliament intended the section to replicate the common law, rather than alter it: R v Wickham  NSWCCA 193 at .
Some of the aggravating factors relevant to child sexual assault in s 21A(2) are:
the offender has a record of previous convictions: s 21A(2)(d)
the offence involved gratuitous cruelty: s 21A(2)(f)
the injury, emotional harm, loss or damage caused by the offence is substantial: s 21A(2)(g)
the offender abuses a position of trust or authority in relation to the victim: s 21A(2)(k)
the victim is vulnerable, for example, because the victim is very young or has a disability: s 21A(2)(l)
the offence involves multiple victims or a series of criminal acts: s 21A(2)(m)
the offence was part of a planned or organised criminal activity: s 21A(2)(n).
Application of these subsections are discussed in Section 21A factors “in addition to” any Act or Rule of Law at [11-060]ff.
The aggravating factor in s 21A(2)(n) — the offence was part of a planned or organised criminal activity — was considered by the court in Saddler v R  NSWCCA 83. The applicant who had downloaded more than 45,000 images and 700 movies from the internet, and stored them on external hard drives, CDs and a laptop, was sentenced for possessing child pornography contrary to s 91H(3) Crimes Act 1900 (repealed). These circumstances, however, could not be properly regarded as constituting “planned or organised” criminal activity for the purpose of aggravating the offence under s 21A(2)(n): at . In particular, there was no evidence of planning, or none that went beyond that which is inherent in the offence: at .
The court in Saddler v R also considered the aggravating factor in s 21A(2)(f) — the offence involved gratuitous cruelty. At that time, child pornography was defined by s 91H(1) Crimes Act 1900 to include the element, “torture, cruelty or physical abuse” (the definition, which still includes that phrase, is now contained in s 91FB(1)(a) and child pornography material is now referred to as “child abuse material”). The sentencing judge found that this aspect of the definition of child pornography was present and had taken it into account in determining the objective gravity of the offence. Taking it into account again under s 21A(2)(f) would be impermissible double counting: at . Further, although there is no direct authority on the question of whether the possession of images after they had been created “involved” gratuitous cruelty, it was likely that it would not. Some involvement of the applicant in the creation of the images is required: at .
[17-450] De Simoni principle
The court must disregard a matter of aggravation if taking it into account leads to punishing an offender for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383. This consideration is most likely to arise when a basic form of the offence is charged and the court has regard to factors which are often found as aggravating features of offences in the Crimes Act 1900; such as, the offence was committed in company (R v Newham  NSWCCA 325), the offender used a weapon, or the offender was in a position of trust: R v Wickham at . See also Fact finding at sentence at [1-500].
[17-460] Victim impact statements
For the use of victim impact statements, see Victims and victim impact statements at [12-800].
[17-480] Sexual intercourse — child under ten: s 66A
For a detailed discussion of the offence and applicable principles, see P Poletti, P Mizzi and H Donnelly, “Sentencing for the offence of sexual intercourse with a child under 10”, Sentencing Trends & Issues, No 44, Judicial Commission of NSW, 2015.
The current form of the offence under s 66A Crimes Act 1900, as implemented by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (commenced upon assent on 29 June 2015) provides that any “person who has sexual intercourse with a child who is under the age of 10 years is guilty of an offence”. The amendments represent a reversion to a single form of the offence which existed prior to the Crimes Amendment (Sexual Offences) Act 2008. A maximum penalty of life imprisonment (previously applicable only to the aggravated form of the offence) applies to the new offence. The standard non-parole period of 15 years continues to apply.
For offences committed between 1 January 2009 and 29 June 2015, the following maximums apply:
s 66A(1): sexual intercourse with a child under 10 (maximum penalty of 25 years)
s 66A(2): sexual intercourse with a child under 10 in circumstances of aggravation (maximum penalty of life imprisonment).
A standard non-parole period of 15 years applied to either form of the offence. Subsections 66A(3)(a)–(h) provided that the circumstances of aggravation included when an offender:
intentionally or recklessly inflicted actual bodily harm on the child
threatened to inflict actual bodily harm on the child or a person who is present or nearby
committed the offence in company
committed the offence on a child under his or her authority
committed the offence on a child with a serious physical disability
committed the offence on a child with a cognitive impairment
took advantage of a child who was under the influence of alcohol or drugs
deprived the child of his or her liberty, either before or after the commission of the offence, or
committed the offence of break and enter into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence.
Specific guidance on the factors relevant to assessing the objective seriousness for an offence under s 66A Crimes Act 1900 has been provided by the Court of Criminal Appeal: R v AJP  NSWCCA 434 at , MLP v R  NSWCCA 271 at , R v PGM  NSWCCA 172. These factors include how the offences took place, over what period, with what degree of coercion, the use of threats or pressure, and any immediate effect on the victim. However, caution should be exercised where these cases discuss assessing these factors by reference to being below or above a midpoint: Muldrock v The Queen (2011) 244 CLR 120. See Consideration of standard non-parole period in sentencing at [7-920].
See also Sexual assault at [20-630]ff.
Attempting or assaulting with intent to have sexual intercourse with child under 10: s 66B
In R v McQueeney  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 –:
[H]is Honour was dealing with the applicant for an attempt rather than the substantive offence. The approach to sentencing for an attempted substantive offence was expressed by this court in Taouk  A Crim R 387 as follows:
“There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them and that relationship has to be weighed in each case in the light of all the circumstances.”
In those circumstances his Honour’s evaluation of the objective gravity of the offence required his Honour to consider that the substantive offence was not completed and the prospect that the attempt, if not interrupted, would have succeeded. On the facts before him his Honour was entitled to conclude that the substantive offence may well have succeeded but for the fact that the complainant awoke. The applicant had progressed a considerable way towards actual penetration. The boy’s underwear had been removed and the applicant was holding the boy by the shoulders. The applicant was actively engaged in the attempt. Given these features of the offence and the gravity of the offence which was attempted, I am not persuaded that his Honour imposed a sentence in respect of this offence which was outside the range of his sentencing discretion. It may well be regarded as a sentence towards the top of the range, but that is insufficient to attract the intervention of this court.
Where committed on or after 29 June 2015, the offence is subject to a standard non-parole period of 10 years.
[17-490] Sexual intercourse — child between 10 and 16: s 66C
The Crimes Amendment (Sexual Offences) Act 2008 inserted a new circumstance of aggravation for the aggravated form of this offence — where an offender deprives a child of his or her liberty for a period before or after the commission of the offence: s 66C(5)(h).
The courts have repeatedly emphasised the extremely serious view that has to be taken towards matters of this kind: R v JVP (unrep, 6/11/95, NSWCCA). In the early 1990s it was held that the ages of victims and the range of criminality of the offenders may vary greatly, rendering a wide range of sentences appropriate, including periodic detention (then available as a sentencing option, but now replaced by intensive correction orders): R v Agnew (unrep, 6/12/90, NSWCCA) per Loveday J; R v McClymont (unrep, 17/12/92, NSWCCA) per Gleeson CJ.
The most significant matter which determines where a particular offence is to be placed in the spectrum of offences of this kind is the degree to which the offender is seen to have exploited the youth of the victim: R v Sea (unrep, 13/8/90, NSWCCA) per Badgery-Parker J at 4.
In R v KNL  NSWCCA 260 at –, Latham J, Brownie AJA and Buddin J agreeing, stated:
It is trite to observe that sexual intercourse with a child of 12, knowing the child’s age, is objectively more serious than sexual intercourse with a child of 12, in ignorance of the child’s true age. However, it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence; R v T (1990) 47 A Crim R 29.
The complainant was just over 12 years of age. She was closer to ten than she was to 16, yet that feature of the offence was largely disregarded, in favour of the mitigation constituted by the respondent’s mistaken belief as to her age.
Whether a complainant is a willing participant, notwithstanding his or her age, is relevant to the level of objective seriousness of a s 66C offence: Wakeling v R  NSWCCA 33 at , ; Hogan v R  NSWCCA 150 at .
The Crimes Legislation Amendment (Child Sex Offences) Act 2015 introduced standard non-parole periods for offences, inter alia, contrary to ss 66C(1), 66C(2) and 66C(4), committed on or after 29 June 2015. See Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420].
[17-500] Persistent sexual abuse of child: s 66EA
Section 66EA(1) Crimes Act 1900 provides that a person who, on three or more occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a “sexual offence”, is liable to imprisonment for 25 years. “Sexual offence” is defined to include, inter alia, the offences encompassed by ss 61I–61O Crimes Act 1900. The offence was created in 1998 to overcome the problems of proving particulars (time, date and place) following the decision of the High Court in S v The Queen (1989) 168 CLR 266. McClellan CJ at CL said with support in R v Langbein  NSWCCA 38 at :
The offence of persistent sexual abuse contrary to s 66EA carries a maximum prison term of 25 years. It is a more serious offence than the offences which comprise the individual acts.
Fact finding following a guilty verdict
It had been held that if a jury returns a guilty verdict to a s 66EA offence, the judge must consider which of the foundational offences are established beyond reasonable doubt so as to sentence in accordance with the verdict: ARS v R  NSWCCA 266 at . This was said to be consistent with the duty of the judge to determine the facts relevant on sentence: ARS v R at  citing R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen (2001) 209 CLR 1 at –, –. This approach has been questioned in Chiro v The Queen  HCA 37 where the court analysed a materially similar South Australian provision to s 66EA. The court held that Cheung v The Queen does not stand as authority for the proposition that questions should not be asked of a jury (as to which of the acts the Crown had proved) and further Cheung v The Queen did not concern a persistent abuse offence. Kiefel CJ, Keane and Nettle JJ at  said:
… where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s 50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender.
Bell J agreed, at , 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 that he had committed all the acts charged. Her Honour held, at , that such an approach was contrary to the De Simoni principle. See also the plurality at .
When an offender is sentenced for an offence under s 66EA, the question for the sentencing judge is where the offence should lie on the statutory scale, bearing in mind that the statutory maximum is 25 years imprisonment: R v Fitzgerald (2004) 59 NSWLR 493. It is not logical to approach the sentencing task by considering what sentences the individual offences (such as ss 61J, 61M, 61N) would have attracted had they been charged as isolated offences.
There is nothing to suggest that Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences: R v Manners  NSWCCA 181 at . Section 66EA is capable of applying to a wide range of conduct constituting sexual offences against children: Manners at .
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 . The sentencing judge can still sentence on the basis that the offences were not isolated incidents but the uncharged offences cannot be used to increase the punishment: R v Fitzgerald (2004) 59 NSWLR 493 at ; ARS v R at .
In Hitchen v R  NSWCCA 77 at , although allowing a severity appeal against an aggregate sentence of 25 years with a non-parole period of 18 years, the court accepted the sentencing judge’s finding that the criminality involved for the offence of persistent child abuse was in the worst category (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 –.
[17-505] Aggravated sexual assault: s 61J
The offence of aggravated sexual assault under s 61J Crimes Act 1900 carries a maximum penalty of 20 years with a standard non-parole period of 10 years. The effect of s 61J(2) is to create an offence with a circumstance of aggravation where the victim was:
under the age of 16 years: s 61J(2)(d)
under the authority of the offender: s 61J(2)(e).
See for example, Fisher v R  NSWCCA 129 (13-year-old victim) and R v BWS  NSWCCA 59 (16-year-old victim). In Rylands v R  NSWCCA 106, the victim was aged 15 years and 9 months. The offence comprised an act of cunnilingus. The court noted that crimes of this nature are regarded with great seriousness and that general deterrence and retribution require earnest consideration: at .
[17-510] Aggravated indecent assault: s 61M
As to the approach to sentencing for indecent assault committed many years earlier, see Sentencing for offences committed many years earlier at [17-410] and PWB v R  NSWCCA 84.
RS Hulme J said in BT v R  NSWCCA 267 at :
Sentencing for offences under s 61M is difficult because of the absurd relativity between the 7 years maximum term and the very high standard non-parole period of 5 years for a case in the mid-range of objective seriousness. If the proportions envisaged by s 44 of the Crimes (Sentencing Procedure) Act were adhered to, such a non-parole period would be appropriate for a head sentence of 6 years and 8 months, a sentence that in accordance with long-standing sentencing principles would be imposed only for an offence falling very close to a worst case of an offence under s 61M.
Prior to BT the court had described the ratio of the standard non-parole period to maximum penalty for indecent assault as “somewhat curious and inconsistent”: R v Dagwell  NSWCCA 98 per Howie J at .
The Crimes Amendment (Sexual Offences) Act 2008 amended s 61M Crimes Act 1900 to increase the maximum penalty for an aggravated indecent assault against a child aged under 16 years from 7 to 10 years imprisonment (effective 1 January 2009): s 61M(2).
An offender who commits an aggravated indecent assault against a victim who is under the authority of the offender is liable to 7 years imprisonment: s 61M(1).
Although it is difficult to reconcile, the court must give attention to the standard non-parole period: Corby v R  NSWCCA 146 at .
The prescription of a standard non-parole period for indecent assault does not displace the principle that the court is to have regard to the fact that the offence could have been disposed of in the Local Court: Bonwick v R  NSWCCA 177 at . Davies J said at : “It will have a greater influence in the sentencing as both the objective criminality falls below the mid-range, and as the subjective criminality of the offender assumes more significance”.
In R v Campbell  NSWCCA 125 at , 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) 187 A Crim R 152 at , applying G A T v R  NSWCCA 208 at ; Corby v R  NSWCCA 146 at .
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 , . 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  NSWCCA 146 at , , . The age difference (39 to 14 years in Corby) can also aggravate the offence: Corby v R at . 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  NSWCCA 267 at –; R v KNL  NSWCCA 260 at –; R v AJP (2004) 150 A Crim R 575 at . 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  NSWCCA 267 at  per RS Hulme J referring to R v Woods  NSWCCA 55 at -.
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.
[17-520] Act of indecency: s 61N
Table 1 at [17-420] sets out the maximum penalties applicable to acts of indecency committed against persons under 16 years: s 61N(1) Crimes Act 1900, and against persons 16 years and above: s 61N(2).
While, ordinarily, a custodial sentence would be appropriate for indecent assaults, such a sentence is neither necessarily required nor inevitable in every case: R v O’Sullivan (unrep, 20/10/89, NSWCCA) at 4–5. However, the legislature does expect the courts to punish severely those who commit sexual assaults on young children: R v Muldoon (unrep, 13/12/90, NSWCCA) at 6. For example, periodic detention, when it was available as a sentencing option (prior to 1 October 2010), was said not to be appropriate where the offences occurred over a long period of time on young children: R v Burchell (unrep, 9/4/87, NSWCCA).
The Court of Criminal Appeal has declined to lay down a requirement that a custodial sentence should ordinarily be imposed in relation to the charge of act of indecency: R v Baxter (unrep, 26/5/94, NSWCCA) per Hunt CJ at CL at 11. In R v Baxter, the Court of Criminal Appeal emphasised the importance of looking to such considerations as the nature of the assault, the existence and extent of any penetration, the age of the victim and other features relevant to the case: R v Barrett (unrep, 26/7/95, NSWCCA) per Kirby ACJ at 6. In Corby v R  NSWCCA 146 at , the Court of Criminal Appeal stated that if the act of indecency occurred in the physical presence of the victim this will bear on the determination of the seriousness of the offence. The seriousness of the offence escalates if the offence continues over a period of days: at .
Aggravated act of indecency: s 61O
Table 1 at [17-420] sets out the maximum penalties for aggravated acts of indecency offences committed against a person under 16 years: s 61O(1) Crimes Act 1900, 16 years or above: s 61O(1A); or under 10 years: s 61O(2). Table 1 also sets out the maximum penalty for the offence of committing an act of indecency with or towards a person under the age of 16 years (or inciting a person under the age of 16 years to an act of indecency) knowing that the act of indecency is being filmed for the purpose of producing child abuse material (previously child pornography): s 61O(2A), inserted by the Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009).
In R v ARC (unrep, 28/8/96, NSWCCA), Hunt CJ at CL stated the following in relation to s 61O offences:
… the size of the scale in relation to the acts of indecency referred to in [the] NSW Crimes Act is necessarily small. Section 61O provides for circumstances of aggravation … That further reduces the size of the relevant scale. Moreover, it does not take much for an act of indecency to become an indecent assault, with a correspondingly higher maximum sentence.
[17-530] Sexual intercourse with child between 16 and 18 under special care: s 73
Any person who has sexual intercourse with someone under their special care who is of or above 16 but under 17 years of age, is liable to imprisonment for 8 years. Where the victim is of or above the age of 17 years and under the age of 18 years, the offender is liable to imprisonment for 4 years: s 73(2) Crimes Act 1900. “Under the special care of another person”, for the purposes of s 73, is defined in s 73(3).
[17-535] Procuring or grooming: s 66EB
Under s 66EB(2) Crimes Act 1900, an adult who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. The offence carries a maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case.
In Tector v R  NSWCCA 151, the offender was charged with using a telecommunications service to procure a 12-year-old boy to engage in sexual activity: s 474.26(1) Criminal Code (Cth). Section 474.26(1) is the Commonwealth equivalent of s 66EB(2). Like s 66EB(2)(a), it carries a maximum penalty of 15 years. The court (Hall J, Giles JA and Barr J agreeing) sentenced the offender to a head sentence of 8 years imprisonment, with a non-parole period of 5 years. The gravamen of the offence is conduct by an adult directed at a child under 16 years, undertaken with the intent of encouraging, enticing, recruiting or inducing (whether by threats, promises or otherwise) that child to engage in sexual activity. “Sexual activity” is defined in s 474.28(11) (now repealed) to include “any” activity of a sexual or indecent nature and “need not involve physical contact between people”: at . In addition to the nature of the sexual activity proposed, the following factors were relevant to the determination of sentence at :
the offender invited the child to engage in sexual activity with him
money was offered as an inducement to sexual activity
the offender persistently pursued the child (over a course of approximately six weeks)
the child, at 12 years of age, was significantly below the age of 16 years
the extent of the age difference between the 41-year-old applicant and the 12-year-old child
the offender took steps to remain anonymous (false name, public telephones and internet cafes).
A new offence of “meeting child following grooming” was inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008: ss 66EB(2A) and (2B). It carries a maximum penalty of 15 years imprisonment where the child involved is under 14 years of age, and 12 years imprisonment in any other case: s 66EB(2A). The offence involves an adult intentionally meeting a child, or travelling to meet a child, whom he or she has groomed for sexual purposes, with the intention of procuring the child for unlawful sexual activity: s 66EB(2A).
The Crimes Legislation Amendment (Child Sex Offences) Act 2015 introduced standard non-parole periods for all offences under s 66EB, committed on or after 29 June 2015. See Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420].
[17-540] Child sexual servitude and prostitution
Part 3 Div 10A (ss 80B–80F) Crimes Act 1900 deals with offences relating to sexual servitude. The aggravated form of the offence of causing sexual servitude applies to persons under the age of 18 years: ss 80C(a), 80D(2). The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for the aggravated form of the offence from 19 to 20 years imprisonment (effective 1 January 2009): s 80D(2).
Part 3 Divs 15 and 15A (ss 91C–91H) of the Crimes Act 1900 deal with offences relating to child prostitution and child abuse/pornography material. The Crimes Amendment (Child Pornography) Act 2004 amended ss 91C and 91G and introduced s 91H. Significantly, the maximum penalty for offences in s 91G was doubled, increasing from 7 to 14 years where the child is under the age of 14 years, and from 5 to 10 years where the child is of or above the age of 14. The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for offences under s 91E (obtaining benefit from child prostitution): see below.
Promoting or engaging in acts of child prostitution: s 91D
In R v Romano  NSWCCA 380, the applicant had been sentenced to a fixed term of 6 years on each of three counts of causing a child to participate in act of child prostitution and on each of three counts of causing a child under 14 years to participate in an act of child prostitution. The court found that, although the sentencing judge, in setting a sentence close to the maximum, erred in characterising s 91D prostitution offences as “in many ways … analogous to a violent aggravated sexual assault in terms of its effect on the community and particularly on the girl”, when the offences on the Form 1 were taken into account, the sentence imposed was within the sentencing range.
For offences under s 91D(1) (see Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420]), committed on or after 29 June 2015, a standard non-parole period of 6 years applies.
Obtaining benefit from child prostitution: s 91E
On each of seven counts of obtaining benefit from child prostitution under s 91E in R v Romano  NSWCCA 380, the applicant was sentenced to a fixed term of 3 years. The Crimes Amendment (Sexual Offences) Act 2008 increased the maximum penalty for receiving money or any other material benefit knowing that it is derived from an act of prostitution involving a child under the age of 14 years from 10 to 14 years imprisonment (effective 1 January 2009): s 91E(1). The higher maximum penalty only applies where the age of the child is set out in the charge for the offence: s 91E(3).
For offences under s 91E(1) (see Table 1: Sexual offences against children under the Crimes Act 1900 at [17-420]), committed on or after 29 June 2015, a standard non-parole period of 6 years applies where the offence is one involving a child under 14, attracting the 14 year maximum penalty.
Premises not to be used for child prostitution: s 91F
In R v Hilton  NSWCCA 317, the applicant was charged with 11 counts of obtaining money from child prostitution under s 91E(1) and eight counts of premises not to be used for child prostitution under s 91F(1). His defence — that he did not know the two girls were under 18 years of age — was rejected by the sentencing judge. On appeal, the submission that he was double punished for his conduct was made good: Pearce v The Queen (1998) 194 CLR 610 applied. There was no need to charge the applicant with offences under s 91F(1) as well as under s 91E(1); the offences under s 91F, in point of criminality, being almost entirely subsumed in the offences committed under s 91E: at . Therefore, the sentence for offences under s 91E(1) was reduced for each count to a fixed term of 2 months, whereas the sentence for offences under s 91F(1) was confirmed as a 3-year-term of imprisonment with a non-parole period of 12 months. Justice Adams (with Bell and Hall JJ agreeing), stated that despite the powerful subjective circumstances of this case the objective criminality of the offences was substantial and necessitated a term of full-time custody.
[17-541] Child abuse/pornography offences
The following text sets out both Commonwealth and State offences. Increases to maximum penalties reflect the view of the State and Federal Parliament of the serious criminality involved in child pornography offences: R v Porte  NSWCCA 174 at , . In 2008, the maximum penalty for an offence against s 91H(2) Crimes Act 1900 (see below) was increased from 5 to 10 years imprisonment. In 2010, the maximum penalty for the Criminal Code (Cth), s 474.19 (see below) (and other similar offences) was increased from 10 to 15 years imprisonment.
Part 3 Div 15A Crimes Act 1900 contains the following State child abuse material (previously child pornography) offences:
using a child to produce child abuse material: s 91G(1)
producing child abuse material: s 91H(2)
disseminating child abuse material: s 91H(2)
possessing child abuse material: s 91H(2).
“Child abuse material” is defined in s 91FB as material which:
… depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive:
a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
the private parts of a person who is, appears to be or is implied to be, a child.
Chapter 10 Pts 10.5 and 10.6 Criminal Code (Cth) contain the following Commonwealth child pornography and child abuse material offences:
using a postal service for child pornography or child abuse material: ss 471.16, 471.19 (maximum penalty of 15 years)
possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use through a postal or similar service: ss 471.17, 471.20 (maximum penalty of 15 years)
using a carriage service to access, transmit (or cause to be transmitted to himself or herself), make available, publish, distribute, advertise, promote or solicit child pornography or child abuse material: ss 474.19, 474.22 (maximum penalty of 15 years). See Special Bulletin 11 — DPP (Cth) and DPP (Vic) v Garside  VSCA 74, which reviewed the leading authorities in NSW and Victoria.
possessing, controlling, producing, supplying or obtaining child pornography or child abuse material for use by the offender or another person to commit an offence against ss 474.19 and 474.22: ss 474.20, 474.23 (maximum penalty of 15 years).
An aggravated form of each offence is contained in ss 471.22 and 474.24A Criminal Code (Cth) (maximum penalty of 25 years). It is also an offence for an internet service provider or internet content host who is aware that a service they provide can be used to access material they believe, on reasonable grounds, is either child pornography or child abuse material to not refer details of that material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material: s 474.25 (maximum penalty of 100 penalty units, that is, $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).
Mixture of State and Commonwealth offences
It is apparent that there is a degree of overlap between some of the Commonwealth and State offences. In R v Cheung  NSWCCA 244 at , the court said that it was open to a sentencing court to seek guidance from the sentences in respect of much longer established identical state offences. Although these comments were made in the context of drug offences, the statement of principle should apply regardless of the offence. See further discussion in Sentencing Commonwealth offenders at [16-002].
A combination of Commonwealth and State offences is not uncommon in a child pornography matter: R v Porte at . 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 ; R v Fulop  VSCA 296 at –.
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 is a paramount consideration for offences involving child abuse/child pornography material. In R v Booth  NSWCCA 89 at –, Simpson J said:
possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.
What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography.
In R v Gent  NSWCCA 370 at , where the applicant was charged with importing child pornography under s 233BAB(5) Customs Act and sentenced to 18 months imprisonment with a non-parole period of 12 months, the Crown relied upon the statement of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 to the following effect:
The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography — and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.
This passage has been applied in Australia in R v Jones (1999) 108 A Crim R 50 at 51, a decision referred to by Malcolm CJ in R v Assheton (2002) 132 A Crim R 237 and Williams JA and MacKenzie J in R v Cook  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 , .
In Mouscas v R  NSWCCA 181 at , 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  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  NSWDC 238 at ; Police v Power  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) 201 A Crim R 243 at , 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:
Whether actual children were used in the creation of the material.
The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
The number of images or items of material — in a case of possession, the significance lying more in the number of different children depicted.
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.
In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
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.
The proximity of the offender’s activities to those responsible for bringing the material into existence.
The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
Whether the offender acted alone or in a collaborative network of like-minded persons.
Any risk of the material being seen or acquired by vulnerable persons, particularly children.
Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.
In R v Porte  NSWCCA 174 at –, 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  NSWCCA 247; R v Martin  NSWCCA 283; James v R  NSWCCA 97. The court added to these principles the following considerations:
The absence of an intention to sell or distribute child abuse material does not mitigate penalty for a possession offence: R v Porte at ; Saddler v R  NSWCCA 83 at –; R v Booth  NSWCCA 89 at .
The possession of child abuse material is not a victimless crime. Those who possess such material help to create a market for the continued exploitation and abuse of children. It is for that reason that general deterrence is of particular significance: R v Porte at –; R v Booth at –.
Evidence of rehabilitation, while an important sentencing consideration under s 16A(2)(n) Crimes Act 1914 (Cth) and s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999, may have reduced significance given the predominance of general deterrence and denunciation in the sentencing process for these offences: R v Porte at –; R v Booth at .
R v Porte was applied in R v De Leeuw  NSWCCA 183 at . See also Lyons v R  NSWCCA 204 at .
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 . 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 , . 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  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  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  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 , . 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 . 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  NSWCCA 140 at . In Whiley v R  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 –. In R v Jarrold  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 . 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 .
Accessing, transmitting and making available child pornography or child abuse material: ss 474.19 and 474.22 Criminal Code (Cth)
In James v R  NSWCCA 62 at , 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)  QCA 208 at , , the court concluded that such sophistication and skill was an aggravating factor. In R v Talbot  TASSC 107 at , 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  NSWCCA 140 at  discussed above.
[17-543] Voyeurism and related offences
New voyeurism and related offences were inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008: Pt 3 Div 15B (ss 91I–91M) (effective 1 January 2009). The maximum penalties for these offences are detailed in Table 1 at [17-420].
Voyeurism: s 91J
Voyeurism is the seeking of sexual arousal or gratification by observing another person engaged in a private act without the consent of the person and knowing that the other person has not consented to be observed for that purpose: s 91J(1). “Engaged in a private act” is defined in s 91I(2). An offence against s 91J(1) is a summary offence: s 91J(2).
An aggravated form of the offence is committed when the person observed was under 16 years of age or the offender constructed or adapted the fabric of any building for the purpose facilitating the commission of the offence: s 91J(3), (4).
Filming a person engaged in a private act: s 91K
It is an offence for a person to seek sexual arousal or gratification (or enable another person to do so) by filming another person engaged in a private act without the consent of the person and knowing that the person being filmed has not consented to being filmed for that purpose: s 91K(1). An aggravated form of the offence is committed if the person being filmed was under 16 years of age or the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence: s 91K(3), (4).
Filming a person’s private parts: s 91L
It is an offence for a person to seek sexual arousal or gratification (or seek to enable another person to do so) by filming another person’s private parts without the consent of the person and knowing that the person being filmed does not consent to being filmed for that purpose: s 91L(1). An offence against s 91L(1) is a summary offence. An aggravated form of the offence is committed if the person filmed was under 16 years of age or the offender constructed or adapted the fabric of a building for the purpose of facilitating the commission of the offence: s 91L(3), (4).
[17-545] Incitement to commit a sexual offence
An offence of inciting a person to commit a sexual offence was inserted into the Crimes Act 1900 by the Crimes Amendment (Sexual Offences) Act 2008 (effective 1 January 2009): s 80G. Inciting a person to commit a sexual offence carries the penalty provided for the commission of the sexual offence: s 80G(1).
[17-550] Intensive correction order not available for a “prescribed sexual offence”
Section 66 Crimes (Sentencing Procedure) Act provides that an intensive correction order may not be made in respect of a sentence of imprisonment for an offence under Div 10 or 10A of Pt 3 Crimes Act 1900.
For a further discussion of restrictions on the power to make intensive correction orders see Intensive correction orders (ICOs) at [3-630].
[17-560] Other aggravating circumstances
Breach of trust
It is an obvious aggravating feature if the offender was in a position of trust and violated that trust by sexually assaulting the child: R v Muldoon (unrep, 13/12/90, NSWCCA). There is a variety of situations where breach of trust has been recognised.
The abuse of trust is considered more serious where the offender is the father (or family member) of the victim. Sentences must be of a severe nature and little leniency can be given, even though the parent has been otherwise of good character: R v Evans (unrep, 24/3/88, NSWCCA); R v Welcher (unrep, 9/11/90, NSWCCA) per Lee CJ at CL at ; R v Bamford (unrep, 23/7/91, NSWCCA). In R v Hudson (unrep, 30/7/98, NSWCCA) at 2, Sully and Ireland JJ, Spigelman CJ agreeing, stated:
children in a family situation are virtually helpless against sexual attack by the male parent and … children have a right to be protected from sexual molestation within the family and … this can only be achieved by the courts imposing sentences of a salutary nature.
The Court of Criminal Appeal has expressed particular concern that in family situations children are required to obey their parents. The offender exploits that authority and their power to discipline the child: R v JVP (unrep, 6/11/95, NSWCCA); R v RKB (unrep, 30/6/92, NSWCCA). In R v BJW (2000) 112 A Crim R 1 at –, Sheller JA stated:
[A] child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992.
Teachers, coaches and group leaders
In R v King (unrep, 20/8/91, NSWCCA), the respondent was a leader in a junior athletics organisation. In allowing the Crown appeal the court increased his sentence from a 2-year periodic detention order to a fixed term of 2 years.
In R v MacDonnell (unrep, 8/12/95, NSWCCA), the respondent was the head teacher at the victim’s school. On the charge of carnal knowledge under s 73 he was sentenced to a minimum term of 6 months with an additional term of 2 years.
In R v Lumsden (unrep, 31/7/96, NSWCCA), the applicant was the victim’s swimming coach. The court found that the sentencing judge did not err in finding that the breach of trust arising from a coach and pupil relationship aggravated the circumstances of the child sexual assault offences.
In R v Eagles (unrep, 16/12/93, NSWCCA), the applicant was a baby sitter. On multiple charges of homosexual child abuse he was sentenced to a minimum term of 7 years with an additional term of 3 years.
In Ryan v The Queen (2001) 206 CLR 267, the applicant was a priest who abused his position of trust by sexually assaulting young boys over an extended period of time.
In R v Fisk (unrep, 21/7/98, NSWCCA), the applicant was charged with 24 separate counts of serious sexual misconduct against three victims. In confirming the aggregate sentence of a minimum term of 9 years with an additional term of 3 years, the court found that the applicant’s behaviour in manipulating, exploiting and taking advantage of the boys’ dysfunctional family backgrounds and homeless state, was a further aggravating factor.
Merely that the offences occurred in the course of a single extended episode does not justify the conclusion that the sentences are to be wholly concurrent: R v Dunn  NSWCCA 41 at . In Carlton v The Queen  NSWCCA 244 at , the court held that there should have been at least partial accumulation of the sentences notwithstanding that they occurred as part of one episode. The imposition of totally concurrent sentences failed to acknowledge the separate harm done to the victim by the different acts of the appellant: at . This was an occasion where consideration of an offender’s behaviour being closely related in time should not have obscured the fact that different offences were committed: at .
In child sexual assault cases where there are multiple assaults occurring as part of a background of continuous abuse, the fact that these offences are not isolated events is a material consideration in sentencing: R v Bamford (unrep, 23/7/91, NSWCCA). In Dousha v R  NSWCCA 263 at :
I am satisfied that her Honour’s finding that the counts were representative of a course of conduct was in order to emphasise the distinction between the leniency that might be extended for an isolated instance of misconduct as distinct from repeated and discrete misconduct.
Offences involving a number of victims or a large number of instances which occurred over a long period of time have been regarded as demonstrative of cases involving a very high degree of criminality: see R v Hill (unrep, 7/7/92, NSWCCA). Condign punishment is called for where grave and repeated sexual assaults are perpetrated upon young children, particularly by a person in a position of trust and authority: R v JCW  NSWCCA 209 per Spigelman J at . However, each case must be necessarily understood upon its own facts and by reference to the particular objective circumstances. Such consideration would necessarily include the number of victims involved, the duration of the offence(s) and the extent of sexual invasion seen: R v Davis  NSWCCA 15 at .
Caution must be exercised when a criminal escapade involves consequences for more than one victim. In these circumstances, there is a special need to ensure that by imposing concurrent sentences, insufficient recognition is not given to the fact that more than one victim has been impacted by the criminal activity: R v AB  NSWCCA 360.
In R v Wicks  NSWCCA 409 at , McClellan CJ at CL stated:
Persons who set about committing crimes of a sexual nature upon a number of different victims, even if the offence occurs in a short space of time can expect a penalty which imposes a prison term which will be served separately for at least some of the offences (… see the discussion about multiple victims in R v Dunn  NSWCCA 41 at , R v AB & Clifford  NSWCCA 360 at –, R v Weldon (2002) 136 A Crim R 55 at 62 per Ipp J).
In R v Katon  NSWCCA 228 at , the court, applying R v Knight (2005) 155 A Crim R 252 per Johnson J at , held that:
The facts relating to the various offences disclose a course of serious criminal conduct over a number of years. That conduct involved the sexual abuse of 3 individual victims. In the ordinary course there should be a recognition of that separate offending by at least partial accumulation of the sentences …
In Dousha v R  NSWCCA 263 at , a case involving discrete offending against two young children over a period of years, the court held that there was no error manifested in the fact that the sentences were partially accumulated.
[17-570] Mitigating factors
The issue of consent
Consent is not a mitigating factor or defence. Children are to be protected from sexual conduct, even if they are willing participants: R v McClymont (unrep, 17/12/92, NSWCCA); R v Brady (unrep, 3/3/94, NSWCCA).
Sections 77(1) and 91D(3) Crimes Act 1900 provide that consent is no defence to the offences specified in those sections, as noted above at [17-420]. The judge erred in R v Nelson  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 . The age difference between the victims and the respondent was significant: R v Nelson at , .
The Crimes Amendment (Sexual Offences) Act 2008 inserted special rules for child sexual offences: ss 21A(5A), (5B) Crimes (Sentencing Procedure) Act (effective 1 January 2009). Subsection 21A(5A) provides that, in determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence. Section 21A(5A) has effect despite any Act or rule of law to the contrary: s 21A(5B). See further [10-410].
A new definition of “child sexual offence” was also inserted: s 21A(6). The good character amendment applies to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments, a court has convicted the person being sentenced of the offence or accepted a plea of guilty (which has not been withdrawn): Sch 2 Pt 19 cl 59.
Prior to the commencement of the Crimes Amendment (Sexual Offences) Act 2008, an offender’s prior good character was held to be of less significance in child sex cases than other types of offences: R v Rhule (unrep, 25/7/95, NSWCCA); R v Muldoon (unrep, 13/12/90, NSWCCA); R v DCM (unrep, 26/10/93, NSWCCA); R v Balenaivalu (unrep, 19/2/96, NSWCCA); R v Levi (unrep, 15/5/97, NSWCCA); R v C (unrep, 24/4/97, NSWCCA) ; R v Elliot  NSWDC 238 at ; Mouscas v R  NSWCCA 181 at ; R v PGM  NSWCCA 172 at – and Dousha v R  NSWCCA 263 at .
In R v PGM (2008) 187 A Crim R 152 at , 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  NSWCCA 527 at ; R v ABS  NSWCCA 255 at . 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 .
Offender abused as a child
If it is established that a child sexual assault offender was sexually abused as a child, and that the history of abuse has contributed to the offender’s own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty: R v AGR (unrep, 24/7/98, NSWCCA) at 13. However, while it is appropriate to take such a circumstance into account, it cannot be regarded as an excuse, notwithstanding the fact that such a link may aid in explaining the reason why the offender committed the offence: R v Lett (unrep, 27/3/95, NSWCCA) per Hunt CJ at CL at ; 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 . 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  NSWCCA 176 at , 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  NSWCCA 263 at , 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  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  2 NSWLR 517 at 519, a case concerned with factors arising from consideration of offences committed interstate and resulting delays, Street CJ set down the following principle:
where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
In the case of child sexual assault, it does not necessarily benefit a child sex offender that the offences are not revealed until many years after they were committed: R v Moon  NSWCCA 534. In R v Dennis (unrep, 14/12/92, NSWCCA), the applicant had been charged with five counts of indecent assault and two counts of buggery after the victim came forward in 1990 following a public appeal about child abuse, and complained of offences that had occurred over the period 1974–1980. In rejecting the submission that the sentencing judge had erred by not giving adequate weight to the lapse of time between the commission of the last offence and the time when the applicant came forward for sentence, James J, Hunt CJ at CL and Carruthers J agreeing, said:
It is not infrequently the case that sexual offences committed against a child of which only the offender and the child have knowledge, are first revealed by the child to a third person only years afterwards when the child has attained a certain level of maturity. In such cases the mere passage of time between the committing of the offences and the disclosure of the offences and the apprehension of the offender is of little weight as a factor in mitigation of penalty.
Lapse of time between the commission of the offence and notification to police should be a mitigating factor only where the delay would cause unfairness to the offender: R v Johnson (unrep, 16/5/97, NSWCCA) per Priestley JA. However, it is impossible to lay down any general principle as to the operation of leniency arising from delay: R v Thomson (unrep, 18/6/96, NSWCCA) per Levine J.
In R v Holyoak (1995) 82 A Crim R 502, a case involving sexual offences in which the appellant had not been charged until more than 20 years had passed and in which there had been a further six years delay before conviction; “extra curial” punishment via the media; and “hate” communications, Allen J stated:
Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment — although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light because the victim never would be prepared to talk about them, his confidence increasing as the years went by with his victim remaining silent — the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle.
In finding that the sentencing judge made no error in principle in relation to delay, Levine J in R v Thomson, Priestley JA and Abadee J agreeing, applied R v Holyoak. The sentencing judge had found this was not a case where there had been any dilatory conduct by the police or prosecuting authorities, nor was it a matter in which there had been charges ‘hanging over’ the prisoners head. As far as the applicant was concerned the matter was not going to proceed after the victim’s mother refused to co-operate with the authorities in 1987. There was no evidence to the effect that the prisoner’s life was in any way affected by the delay between the detection by his wife in 1987 and the eventual furnishing of evidence enabling prosecution.
The issue of delay was considered in R v Humphries  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 –:
Although a lengthy delay between finding and charging can be taken into account in favour of an offender, there is no rule that that must happen. Each case depends on its own facts. There is no rule of law that delay is always a detriment to the offender, though it often will be: R v Holyoak (1995) 82 A Crim R 502 at 508.
One of the incidents of a lengthy delay can be that the offender is left in an agony of mind, not knowing whether or not he will be charged. The applicant was not put into any such frame of mind. He was able confidently to rely, until the police were finally told, upon the complainant’s not telling the police, in accordance with the understanding he believed had been reached [among the family].
In R v EGC  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 :
nothing in the judgment [in R v Holyoak] suggests that the weight to be afforded to the rehabilitation of an offender varies according to whether delay has been occasioned by tardiness on the part of the prosecution.
In R v EGC, although police were notified in 1991, both the victim and her mother rejected police involvement. The victim’s mother had in fact married the applicant six months after being told by the victim of the sexual assaults. Stating at  that “mere knowledge of such allegations cannot found a justifiable inference of deliberate inaction by prosecuting authorities”, Latham J continued at :
A number of decisions of this court are consistent with the Judge’s approach to this issue, in circumstances where the complainant and members of her family decline to make a statement or contact the police, despite some early intervention by welfare authorities. V, Thompson and Humphries all fall into that category and resulted in the dismissal of sentence appeals premised upon non-adherence to the principles established in R v Todd  2 NSWLR 517. In V, Wood CJ at CL cites Thompson and Holyoak amongst others, as illustrative of the proposition that leniency is not necessarily extended wherever there is a stale offence or substantial delay (at 300).
Although the court in R v EGC held that the sentencing judge did not fail to give sufficient weight to the applicant’s rehabilitation in the context of the delay between notification of the assaults to police and charge, it found that the passage of time between the commission of the offences and sentence was capable of, and ought to have, constituted special circumstances. The Court of Criminal Appeal has recognised prosecution for a stale offence as a special circumstance warranting alteration of the statutory ratio: R v Virgona  NSWCCA 415; R v Fidow  NSWCCA 172.
In Dousha v R  NSWCCA 263 at , 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 , .
Pre-Trial Diversion of Offenders Program
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  NSWCCA 166 at – for a legislative history.
Possibility of summary disposal
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:
Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years.
There is no principle that the offender should not be sentenced to a term that would result in him or her spending the rest of his or her life in gaol: R v Varner; R v Holyoak; R v Gallagher (unrep, 29/11/95, NSWCCA).
The youth of an offender may also be a relevant consideration. In R v JJS  NSWCCA 225 the applicant, a 14-year-old boy who assaulted his three-year-old cousin contrary to s 61M(2), was sentenced to a 5-year good behaviour bond. The bond was reduced on appeal to a term of 3 years, the court finding that the sentence was unduly burdensome and inappropriate in the circumstances of the case.
Intellectual handicap/mental disorder
General deterrence should be given less weight in cases where the offender is suffering from a severe intellectual disability or mental disorder because such an offender is not an appropriate medium for making an example to others. The court moderates the consideration of general deterrence to the circumstances of the particular case. 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  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 [7-910].
Offender undertakes treatment
It has been said that it is “an important matter in his favour” that the offender is prepared to undertake treatment for his sexual attraction to children. This is particularly so in cases involving Depo Provera treatment (“chemical castration”), where there are significant side effects. In R v DCM (unrep, 26/10/93, NSWCCA), the respondent was charged with 16 counts of child sexual assault offences involving five children over a period of 4 years and 5 months. In dismissing the Crown appeal and confirming the 300 hours community service and recognizance orders, Badgery-Parker J, Kirby ACJ and Loveday AJ agreeing, had regard to “the quite exceptional circumstances of this case”, including that the respondent underwent a course of treatment of Depo Provera and Androcur.
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:
a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or
the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or
as a consequence of being convicted of the offence, has become a disqualified person under the Child Protection (Working with Children) Act 2012, or
the subject of an order under the Crimes (High Risk Offenders) Act 2006 (whether as a high risk sex offender or as a high risk violent offender).
Section 24A(1)(a)–(b) has effect despite any Act or rule of law to the contrary: s 24A(2). It applies to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments, a court has convicted the person being sentenced of the offence or accepted a plea of guilty (which has not been withdrawn): Sch 2 Pt 19 cl 59. Section 24A(1)(c) applies to offences whenever committed unless, before 3 March 2011, a court has convicted the person being sentenced of the offence, or a plea of guilty has been accepted and the plea has not been withdrawn: Crimes (Sentencing Procedure) Act 1999, Sch 2, Pt 21, cl 62.
For the position before the enactment of s 24A see R v KNL  NSWCCA 260 at –.
Hardship of custody for child sex offender
Protective custody is not automatically to be regarded as a circumstance mitigating the sentence: Clinton v R  NSWCCA 276 at ; R v Way (2004) 60 NSWLR 168 at –; 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  NSWCCA 70 per Howie J, Sully J agreeing, at . 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  NSWCCA 147 at –; R v LP  NSWCCA 154 at .
The Sentencing Council of NSW said in a report, “Penalties Relating to Sexual Assault Offences in New South Wales”, 2008, Vol 1, at [6.49]:
In the case of sexual offenders, it is difficult to imagine that those prisoners who are assumed likely to serve their sentences in special management areas or in limited association areas, who have access to programs or services or a reasonable degree of association with other inmates, would qualify for special consideration. Each case would, however, need to depend on its own facts.
The Council expressed the view at [6.51] that “the conditions of protective custody should more actively be promoted to judicial officers”.
A paper on protective custody by Domenic Pezzano, Superintendent Operations Branch, Corrective Services NSW, “Information for ODPP/Courts on options for offenders who request protective custody — limited association and non-association” (revised December 2010) describes the programs and employment opportunities.