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Sentencing Child Exploitation Offences

Recent Cases Alert:
R v Henderson [2023] ACTSC 110 — doubted the proposition that good character be given less weight when sentencing for child exploitation material offences where the offender’s character did not enable offending.

1. Categories of Commonwealth Child Exploitation Offences

1.1 Types of child exploitation offences

1.1.1 Postal or similar service offences

Part 10.5, Division 471 of the Criminal Code (Cth) contains certain child exploitation offences relating to postal services in Subdivisions B and C: Types of child exploitation offences: Commonwealth Criminal Code Division 471—Postal Service Offences Subdivision B—Offences relating to use of postal or similar service for child abuse material Section Offence Max penalty 471.19 Using a postal or similar service for child abuse material 15 years imprisonment 471.20 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service 15 years imprisonment 471.22 Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people 30 years imprisonment Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16 471.24 Using a postal or similar service to procure persons under 16 15 years imprisonment 471.25 Using a postal or similar service to “groom” persons under 16 15 years imprisonment 471.25A Using a postal or similar service to “groom” another person to make it easier to procure persons under 16 15 years imprisonment 471.26 Using a postal or similar service to send indecent material to person under 16 10 years imprisonment

1.1.2 Carriage services offences

Part 10.6, Division 474 of the Criminal Code (Cth) contains certain child exploitation offences relating to the use of carriage services in Subdivisions D, E and F:

Types of child exploitation offences: Commonwealth Criminal Code
Division 474—Telecommunications Offences
Subdivision D—Offences relating to use of carriage service for child abuse material
Section	Offence	Max penalty
474.22	Using a carriage service for child abuse material	15 years imprisonment
474.22A	Possessing or controlling child abuse material obtained or accessed using a carriage service	15 years imprisonment
474.23	Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service	15 years imprisonment
474.23A	Conduct for the purposes of electronic service used for child abuse material	20 years imprisonment
474.24A	Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people	30 years imprisonment
Subdivision E – Offence relating to obligations of internet service providers and internet content hosts
474.25	Obligations of internet service providers and internet content hosts	800 penalty units
Subdivision F – Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16
474.25A	Using a carriage service for sexual activity with person under 16 years of age	20 years imprisonment
474.25B	Aggravated offence – using a carriage service for sexual activity with person under 16 years of age	30 years imprisonment
474.25C	Using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16	10 years imprisonment
474.26	Using a carriage service to procure persons under 16 years of age	15 years imprisonment
474.27	Using a carriage service to “groom” persons under 16 years of age	15 years imprisonment
474.27AA	Using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age	15 years imprisonment
474.27A	Using a carriage service to transmit indecent communication to person under 16 years of age	10 years imprisonment

1.1.3 Other child exploitation offences

1.1.3.1 Possession of child-like sex dolls

Part 8, Division 273A of the Criminal Code (Cth) is entitled “Possession of child-like sex dolls etc” and contains an offence in relation to the possession of child-like sex dolls:

Types of child exploitation offences: Commonwealth Criminal Code
Division 273A—Possession of child-like sex dolls etc
Section	Offence	Max penalty
273A.1	Possession of child-like sex dolls	15 years imprisonment

1.1.3.2 Protection of children

Chapter 8, Division 273B of the Criminal Code (Cth) is entitled “Protection of children” and contains offences relating to the failing to protect children from sexual abuse:

Types of child exploitation offences: Commonwealth Criminal Code
Division 273B—Offences relating to the protection of children
Section	Offence	Max penalty
273B.4	Failing to protect child at risk of child sexual abuse offence	5 years imprisonment
273B.5(1)	Failing to report child sexual abuse offence – offence based on reasonable belief	3 years imprisonment
273B.5(2)	Failing to report child sexual abuse offence – offence based on reasonable suspicion	2 years imprisonment

1.1.3.3 Importation of Tier 2 Goods

Section 233BAB(5) of the Customs Act 1901 (Cth) contains a special offence relating to the importation of tier 2 goods, which includes child abuse material.

*Types of child exploitation offences: Customs Act 1901* (Cth)**
Division 2—Penalties
Section	Offence	Max penalty
233BAB(5)	Special offence relating to tier 2 goods	10 years imprisonment or 2,500 penalty units or both

1.2 Offences outside Australia

1.2.1 Child sex offences outside Australia

Chapter 8, Division 272 of the Criminal Code (Cth) contains offences relating to child exploitation offences occurring outside Australia:

Types of child exploitation offences: Commonwealth Criminal Code
Division 272—Child sex offences outside Australia
Subdivision B—Sexual offences against children outside Australia
Section	Offence	Max penalty
272.8	Sexual intercourse with child outside Australia	25 years imprisonment
272.9	Sexual activity (other than sexual intercourse) with child outside Australia	20 years imprisonment
272.10	Aggravated offence – sexual intercourse or other sexual activity with child outside Australia	Life imprisonment
272.11	Persistent sexual abuse of child outside Australia	30 years imprisonment
272.12	Sexual intercourse with young person outside Australia – defendant in position of trust or authority	10 years imprisonment
272.13	Sexual activity (other than sexual intercourse) with young person outside Australia – defendant in position of trust or authority	7 years imprisonment
272.14	Procuring child to engage in sexual activity outside Australia	15 years imprisonment
272.15	“Grooming” child to engage in sexual activity outside Australia	15 years imprisonment
272.15A	“Grooming” person to make it easier to engage in sexual activity with a child outside Australia	15 years imprisonment
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia
272.18	Benefiting from offence against this Division	25 years imprisonment
272.19	Encouraging offence against this Division	25 years imprisonment
272.20	Preparing for or planning offence against this Division	10 years imprisonment

1.2.2 Offences involving child abuse material outside Australia

Part 8, Division 272 of the Criminal Code (Cth) contains offences involving child abuse material outside Australia:

Types of child exploitation offences: Commonwealth Criminal Code
Division 273—Offences involving child abuse material outside Australia
Subdivision B—Offences committed overseas involving child abuse material
Section	Offence	Max penalty
273.6	Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia	15 years imprisonment
273.7	Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people	30 years imprisonment

2. Mandatory Minimum Sentences

The Crimes Act 1914 (Cth) provides for certain mandatory minimum sentences of imprisonment for Commonwealth child exploitation offences and circumstances involving repeated instances of child abuse. These minimum sentences were introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) and came into force on 23 June 2020.

2.1 Minimum sentences for certain child sex offences

Section 16AAA requires a court to impose minimum penalties for certain offences listed below, subject to exclusions and reductions of minimum penalties in s 16AAC.

Subsections of Commonwealth Criminal Code	Offence	Minimum penalty of imprisonment
272.8(1), (2)	Sexual intercourse with child outside Australia	6 years
272.9(1), (2)	Sexual activity (other than sexual intercourse) with child outside Australia	5 years
272.10	Aggravated offence – sexual intercourse or other sexual activity with child outside Australia	7 years
272.11	Persistent sexual abuse of child outside Australia	7 years
272.18	Benefiting from offence against this Division	6 years
272.19	Encouraging offence against this Division	6 years
273.7	Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people	7 years
471.22	Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people (postal service offence)	7 years
474.23A	Conduct for the purposes of electronic service used for child abuse material	5 years
474.24A	Aggravated offence – offence involving conduct on 3 or more occasions and 2 or more people (carriage service offence)	7 years
474.25A(1), (2)	Using a carriage service for sexual activity with person under 16 years of age	5 years
474.25B	Aggravated offence – using a carriage service for sexual activity with person under 16 years of age (child abuse material outside Australia)	7 years

2.2 Minimum sentences for second or subsequent child sexual abuse offence(s)

Where an offender is to be sentenced for a “Commonwealth child sexual abuse offence”,¹ and the person has been convicted previously of a child sexual abuse offence, a court must impose at least the minimum period of imprisonment specified in s 16AAB(2).

This is subject to any applicable exclusion or reduction set out in s 16AAC. The table below sets out the periods of imprisonment specified in s 16AAB(2) by reference to the description of the offence in the Criminal Code (Cth):

*Subsections of Criminal Code* (Cth)**	Offence	Minimum penalty of imprisonment
272.12(1), (2)	Sexual intercourse with young person outside Australia – defendant in position of trust or authority	3 years
272.13(1), (2)	Sexual activity (other than sexual intercourse) with young person outside Australia – defendant in position of trust or authority	2 years
272.14(1)	Procuring child to engage in sexual activity outside Australia	4 years
272.15(1)	“Grooming” child to engage in sexual activity outside Australia	4 years
272.15A(1)	“Grooming” person to make it easier to engage in sexual activity with a child outside Australia	4 years
272.20(1)	Preparing for or planning offence against this Division (offences involving sexual intercourse or other sexual activity with child and benefitting)	3 years
272.20(2)	Preparing for or planning offence against this Division (offences involving sexual intercourse or other sexual activity with young person)	1 year
273.6(1)	Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia	4 years
273A.1	Possession of child-like sex dolls	4 years
471.19(1), (2)	Using a postal or similar service for child abuse material	4 years
471.20(1)	Possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service	4 years
471.24(1), (2), (3)	Using a postal or similar service to procure persons under 16	4 years
471.25(1), (2), (3)	Using a postal or similar service to “groom” persons under 16	4 years
471.25A(1), (2), (3)	Using a postal or similar service to “groom” another person to make it easier to procure persons under 16	4 years
471.26(1)	Using a postal or similar service to send indecent material to person under 16	3 years
474.22(1)	Using a carriage service for child abuse material	4 years
474.22A(1)	Possessing or controlling child abuse material obtained or accessed using a carriage service	4 years
474.23(1)	Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service	4 years
474.26(1), (2), (3)	Using a carriage service to procure persons under 16 years of age	4 years
474.27(1), (2), (3)	Using a carriage service to “groom” persons under 16 years of age	4 years
474.27AA(1), (2), (3)	Using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age	4 years
474.27A(1)	Using a carriage service to transmit indecent communication to person under 16 years of age	3 years

2.3 Exclusions from and reductions to minimum sentences for child sexual abuse offences

Section 16AAC provides for exclusions from and reductions to the minimum penalties in ss 16AAA and 16AAB.

Offenders who were aged under 18 years when the relevant offence was committed are excluded from the minimum penalties in s 16AAA and s 16AAB(2): s 16AAC(1).

Section 16AAC(2) empowers courts to reduce the minimum penalty of an offence in certain circumstances. Section 16AAC(3) provides for the percentage by which a court is permitted to reduce the sentence in accordance with s 16AAC(2).

Section 16AAC

(2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:

(a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;

(b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.

(3) If a court may reduce a sentence, the court may reduce the sentence as follows:

(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty–by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence–by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(c) if the court is taking into account both of the matters in paragraphs (a) and (b)–by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.

2.4 Child exploitation offences and conditional release orders

Section 20(1)(b)(ii) and 20(1)(b)(iii) provide that an offender sentenced for a “Commonwealth child sex offence” can only be released immediately on a recognizance release order under s 20(1)(b) if there are “exceptional circumstances”.

The term “Commonwealth child sex offence” is defined in s 3 of the Crimes Act 1914 (Cth) as:

“Commonwealth child sex offence” means:

(a) an offence against any of the following provisions of the Criminal Code:

(i) Division 272 (Child sex offences outside Australia)

(ii) Division 273 (Offences involving child abuse material outside Australia);

(iia) Division 273A (Possession of child-like sex dolls etc.);

(iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);

(iv) Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or

(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or

(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code .

The special provisions applying in respect of Commonwealth child sex offences were introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). The amended s 20(1)(b) applies in relation to recognizance release orders made on or after 23 June 2020, in relation to an offence committed on or after 23 June 2020.

Section 20(1)(b) does not specify the circumstances that might constitute “exceptional circumstances”.

Prior to the introduction of s 20(1)(b)(ii) and (iii) in July 2020, some courts had taken the view that unless exceptional circumstances existed, a sentence involving an immediate term of imprisonment would ordinarily be warranted for offences involving child pornography: see R v De Leeuw [2015] NSWCCA 183, [62]; cf DPP v Garside [2016] VSCA 74, [61]-[62]. The case law on what constitutes “exceptional circumstances” in the context of child exploitation offences prior to the introduction of the new provision is likely to continue to be relevant to s 20(1)(b)(ii) and (iii).

For discussion of the meaning of ‘exceptional circumstances’ in this context, see Conditional Release Orders After Conviction at [4.6].

3. Mandatory Sentencing Considerations

Section 471.29A of the Criminal Code (Cth) requires courts to take into account specified matters, in addition to any other matters the court must take into account, when determining sentences passed or orders made for offences contrary to Subdivision C of Division 471 of the Criminal Code (Cth). The offences to which Subdivision C relate, are contained in ss 471.24–471.26, being offences relating to postal or similar services involving sexual activity with persons under 16 years of age.

471.29A Sentencing

(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, the court must take into account the following matters:

(a) the age and maturity of the person in relation to whom the offence was committed;

(b) if that person was under 10 when the offence was committed–that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(c) the number of people involved in the commission of the offence.

(2) However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.

(3) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

Section 272.30 of the Criminal Code (Cth) requires courts to take into account specified matters, in addition to any other matters the court must take into account, when determining sentences passed or orders made for offending contrary to Subdivision B of Division 272 of the Criminal Code (Cth). Subdivision C of Division 272 (ss 272.8–272.15A) relates to sexual offences against children outside Australia.

272.30 Sentencing

(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Subdivision B of this Division, the court must take into account the following matters:

(a) the age and maturity of the person in relation to whom the offence was committed;

(b) if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(c) the number of people involved in the commission of the offence.

(1A) However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.

(2) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

Section 474.29AA of the Criminal Code (Cth) requires courts to take into account specified matters, in addition to any other matters the court must take into account, when determining sentences passed or orders made for offending contrary to Subdivision F of Division 474 of the Criminal Code (Cth). Subdivision F of Division 474 (ss 474.25A–474.27A) relates to offences using a carriage service involving sexual activity with, or causing harm to, persons under 16 years of age.

474.29AA Sentencing

(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, the court must take into account the following matters:

(a) the age and maturity of the person in relation to whom the offence was committed;

(b) if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(c) the number of people involved in the commission of the offence.

(2) However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.

(3) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

4. General Sentencing Principles

4.1 Objective seriousness: image-based and carriage service offences

Child exploitation offences are considered especially grave by both the Courts and the legislature: DPP (Cth) v Garside [2016] VSCA 74, [19] (Redlich and Beach JJA).

In R v De Leeuw [2015] NSWCCA 183, the Court set out a series of general propositions applicable to sentencing for offences involving child exploitation material. Johnson J (Garling J and Ward JA agreeing) stated at [72]:

(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]- [24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].

(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:

(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

(ii) the number of items or images possessed;

(iii) whether the material is for the purpose of sale or further distribution;

(iv) whether the offender will profit from the offence;

(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

(vi) the length of time for which the pornographic material was possessed:R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth)v Guest at [25].

(c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]- [36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].

(d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].

(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36].

(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].

(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].

(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime – children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].

In DPP v Watson [2016] VSCA 73, Redlich and Beach JJA stated that the historical development of legislation relating to child exploitation was of significance in assessing objective seriousness. Redlich and Beach JJA explained at [30], [33]:

The Directors submit that the change in legislative attitude reflected the legislative concern as to the increasing level of activity taking place on the internet. The changed legislative landscape is plainly of considerable importance in assessing the objective seriousness of the offending. Recognition of that change also serves to distinguish some of the earlier sentences imposed in child pornography cases, as the sentencing regime at the time of many such decisions involved a significantly lower maximum penalty for the relevant offences.
…
Accordingly any evaluation of the adequacy of sentences for offending in the use of the internet for the purposes of creating, obtaining or transmitting child pornography must be informed by the fact that this medium is a rapidly developing and easy means by which vulnerable children are exploited. The expanding breadth of offending and increased maximum penalties reflects the gravity with which the legislature views this form of offending in the area of child pornography (emphasis added).’

In relation to image-based offences, the Court in Minehan v The Queen [2010] NSWCCA 140 set out a number of general sentencing principles for determining objective seriousness. Minehan is routinely cited by Courts sentencing for Commonwealth image-based child exploitation offences.²

R A Hulme J (Macfarlan JA and Johnson J agreeing), following a review of the authorities,³ stated at [94]–[95] that:

Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of 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] HCA 31; (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.

This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness.

R A Hulme J updated this list of non-exhaustive factors in R v Hutchinson [2018] NSWCCA 152 by ‘amending the 9th item in the list to include deception and adding a new 10th item’.⁴

R A Hulme J (Meagher JA and Button J agreeing) stated those updated factors at [45]:

…

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

10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender (emphasis added).

4.1.1 Other factors relevant to objective seriousness of image-based and carriage service offences

Other principles that have been held relevant to the consideration of the objective seriousness of child exploitation image-based and carriage service offending include:

The degree of obvious physical harm, fear or distress in the victim in the nature and content of the images.⁵

The fact offending is likely to result in lasting psychological difficulties for the victims involved and that the offender showed no regard for the children but activity encouraged their abuse.⁶

The length of time the exploitation material was possessed by the offender.⁷

The degree of sophistication and level of skill used in offending, particularly in attempting to avoid detection.⁸

The level of personal interest in the material, which might be evidenced by the way a collection is organised on a computer.⁵

The fact an offender did pay for the acquisition of child exploitation material can aggravate the offence.⁹

The fact the offender did not pay to access the child exploitation material website or was not involved in the distribution or sale of the material does not mitigate the offending.¹⁰

The fact an offender did not cause actual harm to real children does not mitigate the offender’s culpability.¹¹

The fact the offender was part of a group or network of likeminded people seeking to target children usually aggravates offending.¹²

The fact the offender was the creator of and actor in a film is relevant.¹³

The organised retainment of material that allows an offender to anticipate and facilitate continued offending aggravates the offender’s culpability.¹⁴

The objective seriousness of the offence must be taken into account irrespective of the purpose for which the offender downloaded the material.¹⁵

The importance of comparative cases to the assessment of objective seriousness in child exploitation offences.¹⁶

The subjective circumstances of an offender must not overshadow the objective gravity of the offences.¹⁰

4.1.2 Australian National Victim Image Library (ANVIL)

The Australian National Victim Image Library (ANVIL), is a database of child exploitation material. The Child Exploitation Tracking System (CETS) scale is a scale by which all material in the database is categorised.¹⁷

The categories on the scale ‘involve escalating gravity of the conduct depicted in the images’.¹⁸

The material on the database is already classified into the categories below alongside a unique hash value, which can be utilised for the analysis of electronic files.¹⁷

The database is continuously updated as new material is identified and classified.¹⁷

Each image or video is classified in accordance with the CETS scale. There are six categories of child exploitation material:¹⁹

Category 1: nudity or sexually suggestive posing with no sexual activity
Category 2: non-penetrative sexual activity between children, or solo masturbation by a child
Category 3: non-penetrative sexual activity between adult(s) and child(ren)
Category 4: penetrative sexual activity between children or adult(s) and child(ren)
Category 5: sadism, humiliation or bestiality
Category 6: animated or virtual depictions of children engaged in sexual poses or activity

The Court discussed the use of the CETS scale in Heathcoate (a pseudonym) v The Queen [2014] VSCA 37. Tate JA (Sifris AJA agreeing) held that [44]–[45] that:

With respect to the objective seriousness of the offences, I have already indicated that it is important to consider the actual content of the images and not merely their classification, and although the bulk of the images were classified as Level 1 the images were explicit and were at the higher end of that Level. The Level 3 image, as described above, was imminently pre-penetrative. It was conceded that the Level 4 images were serious examples of their type. While the children depicted were not infants they were nevertheless young girls, ‘too young to avoid the exploitation to which they [were] being subjected’.

The volume of images was comparatively small and this was recognised by his Honour. However, the volume of images is not the single determinant of an appropriate sentence. Rather, it is necessary to consider the culpability of the applicant in the context of the offending as a whole. Other offenders may well have accessed or imported a large number of images but not committed distribution or transmission offences. Others may have transmitted images but not in the context of having exploited and breached the trust of children to whom they stood in a quasi-parental relationship…(emphasis added; citations omitted).

The Court in R v Porte [2015] NSWCCA 174 discussed that while the classification system is useful for judges, it is appropriate for judges to view sample images from the offending. Johnson J (Leeming JA and Beech-Jones J agreeing) stated at [73]–[77]:

A common feature on sentence for this class of offence is classification of at least some of the material in accordance with a scale used to assess the objective seriousness of the images…

The ANVIL or CETS scale, as applied in the present case, is the method presently used for this purpose.

There is no statutory provision concerning the use of classification scales of this type. However, experience in this country, and in other jurisdictions, has demonstrated that it is a helpful way to assist a sentencing court to form a view concerning the nature and gravity of the material.

Further, it is appropriate (as occurred in this case) for sample images to be made available to the sentencing court, and to this Court on appeal, to allow an impression to be formed of the material and its degree of depravity…

The classification of material in accordance with the CETS scale assists the process of assessment of the objective seriousness of an offence. Although Categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that Category 1 material is mild in content. Despite being the lowest classification level, Category 1 material itself is capable of possessing significant gravity…(emphasis added; citations omitted).

However, in other cases it has been found unnecessary for judges to view samples of the material.²⁰ R A Hulme J (Meagher JA and Button J agreeing) held in R v Hutchinson [2018] NSWCCA 152 at [48]–[50] that:

I appreciate that it has been said in the past that viewing a sample of the material is necessary for a judicial officer to obtain a full appreciation of its nature which is a significant factor in the assessment of the objective seriousness of the offence(s).

I do not understand there to be binding authority that viewing a sample of such material is essential in every such case. I take the view that it is incumbent upon the prosecuting authorities to provide an adequate written description of the material. In the vast majority of cases that should suffice for there to be a sufficient appreciation of the “relative perversion and debauchery of the pornographic material” (as it has been put in one of the cases to which Johnson J referred). I do not see the need to view an image or a video of, for example, an adult committing some dreadfully depraved act towards a child when it is possible to understand how terrible such a thing is by reading a description of it. Moreover, I would doubt there would be any comfort for the child victim to know that in addition to offenders poring over such images there will be lawyers and judges examining them as well.

In the present case, the description of the material within the statement of facts is reasonably detailed and the Crown did not suggest that there was anything of importance that the Court could not glean from such description. In these circumstances I am satisfied that viewing a sample of the material is not necessary.

The majority in DPP (Cth) v Watson [2016] VSCA 73 warned against giving ‘under-weighted’ consideration to material placed in the lower CETS categories. Redlich and Beach JJA held at [44], [46]:

The sentencing judge regarded the classification of the material as ‘obviously important to sentencing’, and referred to the category 1 and 2 material as not containing material that was ‘up the scale’. The Director contended that his Honour viewed it as ‘somehow less serious’ than for higher level child pornography. The Director submitted that to so view category 1 or 2, does not reflect accurately the sinister nature of this modus operandi. In Heathcote (a pseudonym) v The Queen, this Court rejected such a notion, noting ‘the moral wickedness and depravity of images classified as level 1.’

…

It would be to misconceive the inherent dimensions of this class of predatory behaviour to approach this level of offending as less serious. Although his Honour stated that the absence of material falling within higher levels was not mitigatory, there were numerous references during the sentencing remarks to the fact that the material was level 1 or 2 and there is force in the submission that the inherent objective gravity of level 1 and 2 offending may have been under-weighted. The absence of material of the type found in the higher levels of offending, did not materially diminish the objective gravity of this offending. As the Court in De Leeuw observed, the fact that the images fell only within Category 1 and 2, was of ‘limited assistance to the respondent.’ (emphasis added; citations omitted).

The Court found in R v Edwards [2019] QCA 15 that while no actual children are involved in the creation of Category 6 material, it is not to be considered a “victimless crime” in assessing the objective seriousness of the offence. Morrison JA (Philippides JA and Boddice J agreeing) stated at [69]–[70] that:

As I will endeavour to explain, whilst Category 6 material is different from the material in the other CETS categories, in the sense that it is cartoon, animated or drawings whereas the other categories involve real persons, it is not victimless nor harmless.

A moment’s reflection on the state of advancement in technology over the last, say, 20 years, reveals the inappropriateness of assuming that a Category 6 image, cartoon or video is somehow distinctly different from the other categories. Where once such material was restricted to a series of drawings which, when moved sequentially and quickly, produced moving images, now there is sophisticated Computer Generated Imagery (CGI) technology, which produces life-like images and completely realistic movement. That is the case here. The images accessed on 23 June 2017 were CGI images and the video accessed on 24 July 2017 was a CGI video (emphasis added).

Morrison JA (Philippides JA and Boddice J agreeing) continued at [79] that:

And it must be borne in mind that the CETS scales are non-legislated scales, which are adopted because they are a useful tool, but which should not serve to alter the meaning of statutory text. Material is either Child Exploitation Material, or it is not. Once it is found to be Child Exploitation Material and an offence is committed, the court must sentence according to established sentencing principles. The scales assist but cannot overwhelm the assessment of the nature of the material as part of assessing the objective seriousness of the conduct (emphasis added).

4.2 Objective seriousness: grooming offences

In Clarkson v The Queen [2011] VSCA 157 at [3], the Court noted that the absolute prohibitions on underage sexual activity are founded on a presumption of harm with respect to sexual offences against children. In Adamson v The Queen [2015] VSCA 194 the Court held that this presumption also applies to offences of grooming or procuring. Warren CJ, Redlich and Weinberg JJA stated in Adamson at [47], [49] that:

We reject the appellant’s submission that grooming (s 474.27) or procuring (s 474.26) offences are only prohibited to prevent harm being caused, and not because the conduct itself causes harm. The offences contemplate conduct that has the potential to cause harm. The grooming offence includes the element that the offender communicates with the victim ‘with the intention of making it easier’ to procure the victim for sexual activity. The procuring offence includes the element that the offender communicates with the victim ‘with the intention of procuring the recipient to engage in sexual activity with’ the offender. The adverse effects of such communications, including the vulnerability of the child that may result from the conduct, even if the communications themselves are not explicitly sexual, constitutes a significant harm to the child victim that enlivens the presumption.

…

It follows that, in our view, the presumption of harm arises in respect of the preparatory offences of procuring or grooming, even where the conduct caught may not be of an overtly sexual nature (citations omitted; emphasis added).

Brett J (Pearce J agreeing) in R v Cook [2018] TASCCA 20 listed certain aggravating factors relevant to the assessment of objective seriousness for grooming and indecent communication offences. Brett J (Pearce J agreeing) stated at [48] that:

Other factors which aggravate the respondent’s culpability in this case include:

The significant age disparity between the respondent and the children with whom he thought he was communicating.

The repeated nature of the conduct. This includes the fact that a number of the offences were constituted by repeated communications over a significant period of time.

The language used by the respondent in the course of the communications exhibited a significant level of depravity and was highly sexually explicit and graphic. This had the capacity to corrupt the children with whom he thought he was communicating, as well as setting the tone for the nature of the child pornography which the respondent hoped to solicit.

It was inherent in the respondent’s conduct that the children themselves would produce the child pornography.

The respondent retained the material that was sent to him in an organised way. This enabled him to anticipate and facilitate continued offending in respect of each child in the future (emphasis added).

Courts have emphasised that the nature of the communications between the offender and victim is an important consideration of the objective seriousness of grooming offences. Morrison JA (Gotterson JA and Douglas J agreeing) held in R v Sparrow [2015] QCA 271 that the sentencing judge had not overvalued the communications between the offender and a young victim, stating at [33]–[41] that:

First, the communications were the means by which all the offending in counts 2-9 was able to be committed. Sparrow lived in New South Wales and P was in Brisbane. The communications were the very essence of setting up the other offences which took place when physical contact was made.

Secondly, the very nature of the communications warranted the focus they received. Sparrow knew from the outset that P was only 12 or 13. The communications consisted of explicit sexual grooming of a vulnerable child, in a course of conduct designed only for the exploitation of that child for Sparrow’s peculiar and depraved sexual gratification.

Thirdly, the communications were initiated by Sparrow when he discovered a message from P on Facebook. Once contact was made the communications took several forms, Facebook messages, texts and phone calls. The calls could only have emphasised, if it need emphasising, that P was a child, as she could not call him because she had no phone credit. So it was Sparrow pursuing contact with P.

Fourthly, Sparrow used the communications to perpetrate a falsehood. He was 35 at the time but lied about his age, no doubt in an effort to assist in maintaining the contact and persuading P to comply with his announced wishes.

Fifthly, the communications were part of Sparrow’s imposing control over P. Many conversations had elements of domination or forceful sex in them: tying her up, making her cry, gagging her, anal sex described as “smash my arse”, and vaginal sex described as “smash my box”.

Sixthly, the communications continued over a protracted time, spanning the start of January to 15 March.

Seventhly, the communications continued after the conduct in counts 2-9, with the evident purpose of continuing the grooming for further unlawful sexual activity. However, there were some other features about those particular communications that should be noted:

Sparrow immediately rejoiced in the criminal conduct he had just committed;

he immediately proposed more such conduct, but he was going to stay somewhere else;

over the next three weeks he repeatedly proposed further unlawful sexual activity, including anal sex, rape, and tying P up;

he also wanted P to find a friend so he could have a “threesome”;

he said he had “just hit on Chelsea”; it was not revealed who that was but it may have been another child; and

he used the communications to persuade P to lie about what happened, “Just tell people it never actually happened then”.

Eighthly, the nature of the communications, and the age of P, demonstrate that Sparrow was not only a deviant and violent sexual predator, but had no insight whatever into the harm he was causing to P, and absolutely no remorse for what he did.

In my view, it is incorrect to approach a review of the sentencing exercise in the way this contention does, by examining what sentence may have been imposed in the absence of the communications. They were an integral part of the overall offending, and contribute to the nature and seriousness of the total offending (emphasis added).

The Court in Small v The Queen [2020] NSWCCA 216 approved of the sentencing judge’s analysis of the objective gravity of the offences (at [53]) as being of the ‘middle of the range’ (at [33]). Johnson J (Hoeben CJ at CL and Lonergan J agreeing) quoted with approval the sentencing judge’s analysis of objective seriousness at [33]-[35]:

…

From the outset or very soon thereafter the offender determined to exploit [Amy] for his own sexual gratification. He instigated communications with sexual overtones which were clearly designed to break down otherwise appropriate social boundaries. He made repeated requests that [Amy] supplied him with sexual images of herself effectively threatening that if she did not comply she would lose him as a friend. He also threatened to make public the images she had provided to him…

While no meeting in fact occurred the offender’s deliberate conduct was undoubtedly intended to encourage and therefore make it easier for him to procure [Amy] to engage in sexual activity with him….

When [Amy] did in fact terminate the communications with the offender he ignored her distress and deliberately contacted her using an alias and attempted to convince her to re-establish contact with him.

None of this deterred the offender, his conduct can only be described as persistent, manipulative and predatory. It said to corrupt [Amy’s] psycho sexual and emotional development. She pleaded with him to stop harassing her; he knew his actions were causing her to become upset. The offender caused harm to [Amy] and the potential for ongoing harm cannot be underestimated.

A factor in the offender’s favour is the fact that the majority of his communications with [Amy] were effected using his own name. Although he did use the Star Wars alias, in those communications he made reference to his own identity. This made detection of his offending easier than is typically the case with offending of the present type. Furthermore his communications took place within a one month period only (emphasis added).

4.3 Relationship of trust

If the offender is in a position of trust over the victim of the offence, this will typically increase the objective seriousness of the offending.²¹ In Minehan v The Queen [2010] NSWCCA 110, R A Hulme J (quoting from R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28) explained at [84] that:

The offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender’s own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader (emphasis added).²²

The fact that offending over the internet may not involve a breach of trust does not affect the presumption that harm flows from such conduct.²³

The nature of the employment of the offender may be relevant, even when the employment is not how they gained access to their victims.²⁴ Morrison JA in R v Edwards [2019] QCA 15 noted at [93]-[95] that:

The applicant himself recognised the connection between his role as an AFP officer and what he had done, saying that he had sworn to protect children and he had “betrayed the office of Constable bestowed upon me by the community” …

None of that history suggests, nor was it suggested by the psychologist, that the applicant did not understand the importance of his oath, his duty to uphold the law or the unlawfulness of accessing child pornography.

Given that state of affairs the learned sentencing judge was correct, in my respectful view, to consider the AFP employment as an aggravating but not overwhelming factor.

4.4 General Deterrence

General deterrence is of paramount importance when sentencing child exploitation offences.²⁵

The emphasis on general deterrence often results in less weight being given to matters personal to the offender.²⁶

For broader discussion, see Deterrence.

In DPP (Cth) v Zarb [2014] VSCA 347, Priest JA said at [74]:

The notion underpinning general deterrence is that persons minded to commit crime of a particular kind (child pornography in this case) will look to the sentences imposed in similar cases and be deterred from the crime’s commission.

4.4.1 Non-custodial sentence may not achieve general deterrence

In reaffirming that general deterrence is the primary sentencing consideration in child exploitation cases in R v Freedman [2017] NSWCCA 201 Bellew J (Lonergan J agreeing) stated at [89] that:

Whilst an Intensive Correction Order represents a substantial punishment, it is nevertheless one which reflects a significant degree of leniency, simply because it does not involve immediate incarceration … The degree of leniency inherent in the Intensive Correction Order imposed by his Honour in each case failed to satisfy the requirement to have regard to general deterrence, to the point where the importance of that factor on sentence was allowed “to slip through, almost without a trace” (citations omitted, emphasis added).

In discussing whether a Community Correction Order adequately punished the offender in DPP (Cth) v Zarb [2014] VSCA 347,Priest JA stated at [65]:

Courts have made it abundantly clear that general deterrence is the ‘paramount sentencing consideration’ in offending involving child pornography and that a non-custodial disposition should only be imposed in exceptional circumstances given the prevalence and ready availability of pornography involving children, particularly on the internet.

Note: following amendments to s 20(1)(b) of the Crimes Act 1914 (Cth), offenders convicted of child exploitation offences must be sentenced to a period of full-time imprisonment unless there are exceptional circumstances. See above: 2.4 Child exploitation offences and conditional release orders

4.4.2 Difficulty of detection

The secrecy of child exploitation offences creates difficulties for detection and prevention.²⁷

This increases the need for general deterrence.

In DPP (Cth) v Beattie [2017] NSWCCA 301 Price J (Walton J agreeing) stated at [130] that:

An additional consideration that heightens the need for general deterrence is the difficulty in detecting this class of offending. The Internet provides anonymity for an offender in Australia who can commit the offence via a third party located overseas. The offender can conduct and watch in real-time the sexual abuse of children in a foreign country. Unlike child pornography cases, the offence can be committed without a recording being made of the sexual offence (emphasis added).

In Fitzgerald v The Queen [2015] NSWCCA 266, Hoeben CJ at CL said at [33]:

The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.

See also DPP (Cth) v Watson [2016] VSCA 73, [89].

4.4.3 Where general deterrence may carry less weight

In certain circumstances the offender may not be an appropriate vehicle for general deterrence, or general deterrence may carry less weight.²⁸

This includes where an offender is young or has a mental condition.²⁹

See further Age.

The mental condition of the offender may reduce the extent to which they are an appropriate vehicle for general deterrence.³⁰

See further below at 4.6 Offenders with a mental condition.

4.5 Prior good character

A court must take into account the character of an offender by operation of s 16(2)(m) of the Crimes Act 1914 (Cth): see R v Cooper [2012] ACTCA 9, [46].

However, s 16A(2)(ma) provides that if the person’s standing in the community was used to aid in the commission of the offence, the court is take into account that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.

Generally, prior good character will be given limited weight when sentencing for child exploitation offences,³¹

however past good character and service cannot be ignored.³²

Prior good character is also less significant in sentencing for offences committed over an extended period of time.³³

In R v Porte [2015] NSWCCA 174, Johnson J (Leeming JA and Beech-Jones J agreeing) stated at [136]:

Prior good character is not unusual in this area of offending. Positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography: Hill v State of Western Australia [2009] WASCA 4 at [28]. Significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender: Hill v State of Western Australia at [28].

4.6 Offenders with a mental condition

Courts are required to take into account offender’s mental condition when sentencing offenders by operation of s 16A(2)(m) of the Crimes Act 1914 (Cth). Moral culpability may be reduced where the offender is unable to understand that what they were doing was wrong.³⁴

In Cluett v The Queen [2019] WASCA 111, the Court accepted medical evidence which found that the offender’s autism spectrum disorder with intellectual impairment suggested the offender’s ‘viewing of the material was not motivated by a sexual attraction towards children’. The Court held at [74] that:

[T]he appellant’s autism spectrum disorder was a contributing factor to his offending. On the sentencing judge’s unchallenged findings, the appellant’s fixation on his ‘research’ led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant’s thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration (emphasis added).

The impact of an offender’s mental condition in the context of child exploitation offences has also been considered in Edwards v The Queen [2013] VSCA 188; Kannis v The Queen [2020] NSWCCA 79; Naysmith v The Queen [2013] WASCA 32; R v Cook [2018] TASCCA 20; R v Yardley [2021] ACTSC 2.

4.6.1 Relevance of paraphilic disorder

Paraphilic disorders will not necessarily operate to mitigate a sentence for child exploitation offences. Although diagnosis of a paraphilic disorder may provide an explanation for offending, and to some extent reduce moral culpability, it may also heighten the need for personal deterrence.³⁵

In Ryan v The Queen [2001] HCA 21, McHugh J in considering the impact of ‘paedophilia’ as an underlying condition noted at [41] that:

In Veen v R [No 2] [[1988] HCA 14], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend. But the majority noted that, although the condition may be said to diminish his or her ‘moral culpability for a particular crime’, it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case.

In DPP (Cth) v Beattie [2017] NSWCCA 301, Price J (Walton J agreeing) stated that while the offender’s paraphilic disorder ‘may be seen to provide an explanation for his offending and reduce to some extent his moral culpability’, it ‘heighten[ed] the need for specific deterrence’.

4.7 Offenders who are victims of child abuse

The Court may take into account whether the offender has been a victim of sexual abuse in considering the personal circumstances of the offender. It may be relevant to the moral culpability of the offender,³⁶ their mental condition,³⁷ or the offender’s prospects of rehabilitation.³⁶ Evidence is typically required of the impact that the offender’s own experience of abuse had on the offending.³⁸

Past experience of abuse may be considered within the range of considerations in relation to the antecedents of the offender.³⁹

In the state sentencing case of R v Cunningham [2006] NSWCCA 176 at [67], Bell J emphasised that the offender having been a victim of sexual abuse would be a mitigating factor, if the evidence showed that it contributed to the offending:

The psychiatric evidence does not go so far as to suggest that the history of sexual abuse contributed to the applicant’s paedophilia and the present offences. The applicant had the benefit of this history being taken into account in his favour on the occasion when he appeared before Karpin DCJ for sentence. I do not consider that it is a circumstance that entitles him to mitigation in relation to the present series of offences.

4.8 Offences committed against undercover police officers

The fact that an offence involving child exploitation using a carriage or postal service was committed against an undercover police officer posing as a child does not constitute a mitigating factor on sentence.⁴⁰

In Rampley v The Queen [2010] NSWCCA 293, McClellan CJ at CL (Latham J and Price J agreeing) stated at [37] that:

The offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person. The legislature provided for the offence to be committed in this manner in order to enhance their prospects of detection and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children. It was carefully designed by the legislature so that law enforcement authorities could identify persons who set about using the internet for this purpose. The nature of the offence is such that the creation of fictitious identities and the involvement of police in communicating with offenders is necessary. Regrettably the reality is that many actual victims may not report the internet exchanges with an offender. Their own immaturity may result in a failure to appreciate the consequences of the behaviour induced by an offender. They may not report out of fear of the consequences either from an offender or from parental discipline.

The term ‘Commonwealth child sexual abuse offence’ is defined in s 3 of the Crimes Act 1914 (Cth) to mean ‘a Commonwealth child sex offence, other than an offence against subsection 272.8(1) or (2), 272.9(1) or (2), section 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A or 474.24A, subsection 474.25A(1) or (2) or section 474.25B or 474.25C of the Criminal Code’.

The term ‘Commonwealth child sex offence’ is defined in s 3 of the Crimes Act 1914 (Cth) to mean: (a) an offence against any of the following provisions of the Criminal Code: (i) Division 272 (Child sex offences outside Australia); (ii) Division 273 (Offences involving child abuse material outside Australia); (iia) Division 273A (Possession of child-like sex dolls etc.); (iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children); (iv) Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or (b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or (c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.[↩]
See, eg, CDPP v CCQ [2021] QCA 4, [9]; Martin v The Queen [2019] NSWCCA 197, [50]; Cluett v The Queen [2019] WASCA 111, [61]; DPP (Cth) v Garside [2016] VSCA 74, [25]; Taylor v The Queen [2015] TASCCA 7, [31]; R v Cooper [2012] ACTCA 9, [40]; The Queen v Hancock [2011] NTCCA 14, [21].[↩]
R v Gent [2005] NSWCCA 370, [99]; Whiley v The Queen [2010] NSWCCA 53, [57]; R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28, [9], [11]–[12], [20]; Saddler v The Queen [2009] NSWCCA 83, [23]; McEwen v Simmons [2008] NSWSC 1292; R v Jarrold [2010] NSWCCA 69, [53], [55].[↩]
R v Hutchinson [2018] NSWCCA 152, [44].[↩]
Taylor v The Queen [2015] TASCCA 7, [29].[↩][↩]
Rivo v The Queen [2012] VSCA 117, [27].[↩]
R v De Leeuw [2015] NSWCCA 183, [72].[↩]
R v Mara [2009] QCA 208, [6].[↩]
Hutchins v Western Australia [2006] WASCA 258, [26]; Colbourn v The Queen [2009] TASSC 108, [13]; Minehan v The Queen [2010] NSWCCA 140, [91].[↩]
CDPP v CCQ [2021] QCA 4, [8].[↩][↩]
R v Cook [2018] TASCCA 20, [44].[↩]
R v Cook [2018] TASCCA 20, [49].[↩]
Salman v DPP (Cth) [2011] NSWCCA 192, [52].[↩]
R v Cook [2018] TASCCA 20, [48].[↩]
R v Cooper [2012] ACTCA 9, [52].[↩]
Lyons v The Queen [2017] NSWCCA 120, [82]–[83].[↩]
R v Porte [2015] NSWCCA 174, [17].[↩][↩][↩]
R v Edwards [2019] QCA 15, [67].[↩]
R v De Leeuw [2015] NSWCCA 183, [11].[↩]
See further, eg, Martin v The Queen [2019] NSWCCA 197, [78].[↩]
R v RJ [2014] ACTSC 26, [21]; DPP (Cth) v Haynes [2017] VSCA 79; LS v CDPP [2020] VSC 484, [8]; CR v The Queen [2020] NSWCCA 289, [55].[↩]
See further R v RJ [2014] ACTSC 226, [21]; ADP v State of Western Australia [2018] WASCA 40, [12].[↩]
Adamson v The Queen [2015] VSCA 194, [27][↩]
R v Edwards [2019] QCA 15, [93][↩]
R v Wicks [2005] NSWCCA 409, [39]; DPP (Cth) v Watson [2016] VSCA 73, [47]; Phinthong v The Queen [2011] WASCA 192, [24].[↩]
R v Porte [2015] NSWCCA 174, [126]; Mouscas v The Queen [2008] NSWCCA 181, [37][↩]
Mouscas v The Queen [2008] NSWCCA 181, [31].[↩]
DPP (Cth) v Watson [2016] VSCA 73, [56].[↩]
R v Lovi [2012] QCA 24, [43].[↩]
Cluett v The Queen [2019] WASCA 111, [74][↩]
R v Porte [2015] NSWCCA 174, [126][↩]
R v Hogan [2015] SASCFC 102, [72][↩]
Dousha v R [2008] NSWCCA 263, [49].[↩]
R v Wright (1997) 93 A Crim R 48, [50]-[51] (Hunt CJ at CL)[↩]
DPP (Cth) v Beattie [2017] NSWCCA 301, [205].[↩]
R v AWF [2000] VSCA 172, [34].[↩][↩]
R v McCoy [2020] QCA 59, [24].[↩]
Dousha v R [2008] NSWCCA 263, [47].[↩]
R v Howe [2017] QCA 7, [6].[↩]
Meadows v The Queen [2017] VSCA 290, [12]; Kannis v The Queen [2020] NSWCCA 79, [302][↩]