Cerezo v R

1. [1]

   As to ground 1(b):

   1. (1)

      While the applicant tricked ZM into thinking she was “modelling” for him and the images were taken over a period of time in various locations, this criminality was captured by sequence 78. There was a significant degree of overlap between sequences 77 and 78: at [85] (N Adams CJ at CL, Sirtes J at [101] and Roberts J at [102] agreeing).

   2. (2)

      The images referable to sequence 77 were all category 2 and vastly less serious than those referable to sequences 74-76, and there were less images. Further, the Agreed Facts disclosed that some of the images were duplicated. Despite this, the sentencing judge fixed the same indicative sentence for sequences 74 and 77. It was not open for the sentencing judge to find that the objective seriousness of sequence 77 was mid-range when compared with the finding of objective seriousness for sequence 74: at [84], [86] (N Adams CJ at CL, Sirtes J at [101] and Roberts J at [102] agreeing).

2. [2]

   As to re-sentence:

   1. (1)

      The objective seriousness of sequence 77 was assessed to be below mid-range. The applicant’s prospects of rehabilitation were more favourable than simply being “guarded” and he was remorseful. Significant notional concurrence was allowed as between sequences 77-78 and between sequences 74-76: at [93], [97] (N Adams CJ at CL, Sirtes J at [101] and Roberts J at [102] agreeing).

3. [1]

   N ADAMS CJ at CL: By notice of appeal filed on 7 November 2025, the applicant, Genesis Cerezo, seeks leave to appeal against the aggregate sentence imposed on him by his Honour Judge Mahony SC in the District Court of New South Wales on 1 November 2024.

4. [2]

   The applicant pleaded guilty in the Local Court and was committed for sentence for the following six offences:

   1. (1)

      Four offences of possess child abuse material (“CAM”) contrary to s 91H(2) Crimes Act 1900 (NSW) (sequences 74, 75, 76, and 77). The maximum penalty for that offence is 10 years’ imprisonment;

   2. (2)

      One offence of use child over 14 years to make CAM in relation to victim ZM contrary to s 91G(2)(a) Crimes Act (sequence 78). The maximum penalty for that offence is 10 years’ imprisonment; and

   3. (3)

      One offence of possess unregistered firearm (gel blaster) contrary to s 36(1) Firearms Act 1996 (NSW) (sequence 32). The maximum penalty for that offence is 14 years’ imprisonment.

5. [3]

   Two offences of possess prohibited weapon, namely an extendable baton and a dagger, contrary to s 7(1) Weapons Prohibition Act 1998 (NSW) (sequences 35 and 36) were before his Honour pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The maximum penalty for each related offence is 14 years’ imprisonment and the applicable standard non-parole period (“SNPP”) is 5 years.

6. [4]

   After applying a discount of 25% for the early pleas of guilty to each of the indicative sentences, the applicant was sentenced to an aggregate term of 10 years’ imprisonment with a non-parole period of 7 years and 6 months. The sentence commenced on 21 December 2021. The non-parole period will expire on 20 June 2029 and the head sentence will expire on 20 December 2031. For the two related offences, the applicant was convicted but not subject to a further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

7. [5]

   The applicant seeks leave to appeal against the aggregate sentence on the following two grounds:

8. [6]

   At the hearing of the appeal, counsel for the applicant accepted that grounds 1(a) and 1(b) were unrelated to each other and were, in effect, separate grounds of appeal.

The Agreed Facts

1. [7]

   Agreed Facts were placed before the sentencing court (Exhibit A). A Supplementary Statement of Agreed Facts was also tendered in relation to sequence 78 (Exhibit B). In his Honour’s remarks on sentence, he did not go into any significant detail about the nature of the CAM in his summary of the Agreed Facts to avoid further publication of such material. In doing so, his Honour noted that “both the Crown and the offender are very much aware of what each offence entails”.

2. [8]

   Courts are put in a difficult position when sentencing for offences which have distressing facts. As I observed in Harden v R [2024] NSWCCA 184 at [25], “[i]n the interests of open justice, the court is required to publish its reasons for imposing any sentence, but describing the child abuse material in this appeal will no doubt cause distress to some readers”.

3. [9]

   Although I do not propose to extract all of the Agreed Facts in this judgment, I consider it necessary to include more of them than his Honour did in order to explain my conclusion regarding ground 1(b). Further, there is a public interest in setting out the details of the offending behaviour in order to understand how the aggregate sentence was arrived at and whether, as the applicant contends, the same indicative sentence should have been fixed for sequences 74 and 77.

4. [10]

   The five CAM offences fell into two categories. Sequences 74, 75 and 76 pertained to CAM that the applicant had obtained online and stored across separate devices. He was sentenced on the basis of possessing this material. The remaining two CAM-related offences, sequences 77 and 78, pertain to the applicant’s interactions with a young female, ZM. Sequence 78 pertains to photographing ZM in various poses and sequence 77 pertains to the possession of the photographs he took of ZM. Again, he was sentenced on the basis of possessing this material; there was no suggestion that he sold or otherwise published that CAM.

5. [11]

   The following summary is based on the Agreed Facts as summarised by the sentencing judge with the additional inclusions from the Agreed Facts when relevant to a ground of appeal.

6. [12]

   This offending related to CAM stored on an Apple iPhone owned by the applicant. Police found 1083 images and 122 videos which were classified according to the Interpol baseline category as “Category 1”, which is the most serious categorisation for such material.

7. [13]

   The sentencing judge summarised the facts for sequence 74 as follows:

8. [14]

   Further details from the Agreed Facts for sequence 74 necessary to understand the complaint made under ground 1(b) are as follows. The files included numerous videos of an adult male penetrating the vagina and anus of a prepubescent female with his penis and digitally, images of an adult male penis penetrating the vagina and anus of toddlers and babies and images of an adult male penis in the mouth of toddlers and babies.

9. [15]

   This offending related to CAM found in various cloud storage accounts associated with email addresses of the applicant in addition to four additional phones. In total, police located 536 category 1 images, 7 category 2 images, 602 category 1 videos, and 386 category 2 videos.

10. [16]

    The sentencing judge summarised the facts for sequence 75 as follows:

11. [17]

    The Agreed Facts included much more explicit descriptions of the sexual intercourse as follows.

12. [18]

    The images included female children aged from about 5 to 15 years of age, displaying their breasts and anus and engaged in self-manipulation of their genitalia, including penetration of their vagina or anus with fingers or objects including sex toys and a pen; the oral, vaginal and anal penetration of female and male children, including infants (about 1 to 2 years old) to 15-year-old children, by both adult male and female offenders; and male and female children aged from 5 to 15 years of age, performing sexual acts with and upon each other, including mutual masturbation and oral and vaginal penetration.

13. [19]

    The images also included prepubescent males and females performing oral sex on an adult male, numerous videos of an adult male penetrating the vagina and anus of a prepubescent female with his penis and a video of an adult male penetrating a prepubescent female’s vagina with his penis whilst she was restrained.

14. [20]

    This offending related to material located on two computers and an external hard drive located at the applicant’s home. The CAM included 11 category 1 images on the external hard drive, 10 category 2 images on a personal computer and 52 category 2 images on a laptop.

15. [21]

    The sentencing judge summarised the facts for sequence 76 as follows:

16. [22]

    It should further be noted that the images included prepubescent females inserting objects into their vaginas and clearly displaying their breasts and vaginas, and prepubescent females being penetrated by an adult male penis.

17. [23]

    On 13 December 2018, ZM, who was born on 4 April 2003, was contacted by the applicant via Instagram. The two of them had never met before. The applicant told ZM he was a photographer and asked if she would be interested in modelling for a photoshoot for him. ZM agreed. She was 15 years and 8 months old.

18. [24]

    Over the next few months, between 20 December 2018 and 4 April 2019 (ZM’s sixteenth birthday), there were a number of photoshoots in various locations including the abandoned Balmain Leagues Club, a rocky beach near La Perouse and the National Park near Sutherland. Sometimes the applicant brought clothing for ZM to wear and on other occasions ZM brought her own clothing.

19. [25]

    The images taken form the basis for sequence 77.

20. [26]

    This offending pertains to the images the applicant took of ZM on his Canon camera. These images were found on a number of SD cards, phones and cloud storage accounts. The sentencing judge recounted these facts as follows:

21. [27]

    Relevantly for the purposes of ground 1(b) it should be noted that in none of the images was ZM “undressed” in the sense of being naked. Otherwise, the Agreed Facts in relation to sequence 77 are as follows.

22. [28]

    On the applicant’s Lexar 16GB SD card, police found 12 category 2 images of ZM in sexual poses. These images were taken on 16 January 2019 between 3:47pm and 4:15pm. The Agreed Facts describe the images as follows:

    1. (1)

       Two side profile photos of ZM in black lace underwear with her breasts fully exposed;

    2. (2)

       Two side profile photos of ZM in black lace underwear with one breast fully exposed and one partially exposed; and

    3. (3)

       Five front profile photos and two side profile photos of ZM in a white swimming costume with half of her breasts exposed.

23. [29]

    On the applicant’s Toshiba 16GB SD card, police found 12 category 2 images of ZM in sexual poses. Nine images were taken on 20 December 2018 between 11:10am and 11:47am of ZM wearing a black G-string and black midline corset exposing her buttocks and stomach. Three further images depicted ZM wearing the black G-string and a black midriff jumper, exposing her stomach.

24. [30]

    On the applicant’s Lexar 32GB SD card, police found 20 category 2 images again of ZM in sexual poses. The images were taken on 21 January 2019 between 12:04pm and 12:52pm and depicted the victim ZM in black lace underwear with both breasts exposed. In two of these images, ZM is also wearing a black and white top which is raised to expose her breasts.

25. [31]

    On the applicant’s Apple iPhone 13, police found further material depicting ZM as follows:

    1. (1)

       Images taken on 20 December 2018 of ZM posing front on in black Calvin Klein G-string and black midriff jumper exposing her stomach;

    2. (2)

       Images taken on 16 January 2019 of ZM including her side profile in black lace underwear with her breast fully exposed and standing front on in red lace underwear exposing both of her breasts;

    3. (3)

       More than 50 images taken on 21 January 2019 of ZM sitting down front on in black lace underwear with both breasts exposed;

    4. (4)

       Numerous images taken on 31 January 2019 of ZM in swimwear (white and green bikini) at the beach; and

    5. (5)

       Numerous images taken on 4 February 2019 of ZM in swimwear at the beach and in rock pools.

26. [32]

    This device also contained short category 2 videos of ZM on 16 January 2019 and 21 January 2019 in the same position as the images described above.

27. [33]

    The applicant’s Apple iCloud account also contained category 2 images and videos of ZM. This included the images and videos taken of ZM on 16 January 2019 described above and the more than 50 images taken on 21 January 2019 of ZM sitting down in black lace underwear with her breasts exposed, also described above.

28. [34]

    One video taken on 16 January 2019 is 26 seconds in length and is different to any of the other images and videos. The victim is dressed in short denim shorts and a black midriff corset. She is seated front on with her legs spread apart. The crotch of the denim shorts is positioned in such a way that ZM’s labia majora is visible. During the 26-second video the camera zooms in on the genital region.

29. [35]

    Further images found on the applicant’s Google Cloud and other phones largely duplicated the images set out above.

30. [36]

    When executing the search warrant, police seized a curved dagger/knife in a sheath from the lounge room (sequence 36). The knife was located in a plastic bag containing the applicant’s belongings. The applicant’s DNA was recovered on the blade.

31. [37]

    Police also seized a black “Amarace” gel blaster pistol with a magazine (sequence 32) and an extendable baton (sequence 35). The applicant did not hold a licence or permit for a firearm or a permit authorising him to have a dagger or extendable baton.

Proceedings on sentence

1. [38]

   The proceedings on sentence took place on 1 November 2024. In addition to the Charge Certificate and s 166 certificate, the Crown tendered the Agreed Facts and supplementary Agreed Facts, the applicant’s criminal and custodial history and a table summarising the CAM.

2. [39]

   The applicant did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      The psychological report of Dr Christopher Lennings dated 12 September 2024;

   2. (2)

      Report from the Department of Corrective Services commencing from 30 March 2022; and

   3. (3)

      A bundle of certificates of attainment of courses completed in custody.

3. [40]

   The Crown relied on written submissions on sentence. The applicant did not. Neither party relied on any comparable cases or sentencing statistics.

4. [41]

   Ground 1(b) complains of the finding of objective seriousness for sequence 77 only. The parties agreed before the sentencing judge as to the appropriate finding of objective seriousness for each offence except for sequences 77 and 78 (pertaining to ZM).

5. [42]

   For sequences 74 and 75, both parties agreed that the offending was above mid-range. For sequence 76, both parties agreed that the offending was slightly below mid-range. For sequence 32 (the gel blaster) both parties agreed that the offending was low range.

6. [43]

   As for sequence 77, the Crown submitted that the offending fell above mid-range, whereas counsel for the applicant submitted it fell just below mid-range. Similarly, for sequence 78, the Crown submitted that the offending was mid-range, whereas counsel for the applicant submitted it was below mid-range.

7. [44]

   In support of these findings in relation to the offences relating to ZM, counsel for the applicant (who did not appear on this appeal) submitted that ZM was a “girl that significantly looked older and dressed older” and was an “active participant”. It was submitted that ZM “wanted to have photos for herself” and that she was “very much [a] participant”. This was contrasted with a situation where photos are taken without the child knowing. It was further submitted that there was a “very long relationship” between the applicant and ZM, that she attended on a “voluntary basis” and on occasions she brought her own lingerie. The submissions concluded: “In my submission it would fall below middle range. For those reasons that she was such an active participant, she knew all about the photos being taken”.

8. [45]

   In relation to the two offences on the s 166 certificate, both parties agreed that the offending was low range.

Remarks on sentence

1. [46]

   The sentencing judge delivered his remarks ex tempore after the sentencing hearing on 1 November 2024.

2. [47]

   After noting the applicable maximum penalty and SNPP for each offence, the sentencing judge found that the applicant was entitled to a statutory discount of 25% for his early pleas of guilty.

3. [48]

   The sentencing judge considered the non-exhaustive list of relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of CAM identified by R A Hulme J in R v Hutchinson [2018] NSWCCA 152 (“Hutchinson”) at [45]:

4. [49]

   The sentencing judge then found:

5. [50]

   His Honour assessed the objective seriousness of the offences as follows:

6. [51]

   These assessments of objective seriousness were said to be based on the “number of images and videos involved”.

7. [52]

   The sentencing judge addressed the report of Dr Christopher Lennings dated 12 September 2024 as follows:

8. [53]

   The applicant was born in the Philippines and had “a rather impoverished life” there. He came to Australia in 2012 with his mother and sister. His father died in about 2014. He attended school in Australia until year 11. He reported being a shy young person in the Philippines, where he was bullied at school and subjected to an attempted assault of a sexual nature by a teacher. The sentencing judge noted that the details of this assault “remain opaque”.

9. [54]

   After school, the applicant enrolled in a Certificate for Music for a time and became talented at what is known as “beatboxing”, where he engaged eventually in competitions. In 2012, he was crowned the Australian champion, which led him to represent Australia in an international competition in Germany. Dr Lennings described that career as lasting for some ten years. At some point in time, he became interested in photography, which he carried out as a hobby at first and then in a “somewhat haphazard commercial fashion”.

10. [55]

    Dr Lennings undertook a psychometric assessment of the applicant. This demonstrated that the applicant’s intelligence fell into the below average to average range and that he was a somewhat unreflective person, “whose reasoning capacities were relatively underdeveloped compared to that expected by his world knowledge”. He did not, however, have any impairment in his ability to reason. Dr Lennings went on to assess his risk of recidivism as being in the “moderate range” for non-contact offending and a “likely risk” for any contact sexual offence.

11. [56]

    The sentencing judge noted that the reports from Corrective Services comprised of numerous positive reports from supervisors demonstrating that he had been employed in positions of trust in custody and had conducted himself as a model prisoner.

12. [57]

    The sentencing judge accepted that the applicant came from an impoverished background, but noted that his life improved when he arrived in Australia, as demonstrated by his success in beatboxing.

13. [58]

    The sentencing judge observed that general deterrence and denunciation were of “paramount importance” in sentencing for offences involving CAM. However, he found that specific deterrence was “perhaps of lessened importance here” because the applicant was 32 years of age and had spent three years in custody on remand, although it was “still a matter to be taken into account”.

14. [59]

    The sentencing judge found that the offending involved “high moral culpability” on the part of the applicant, given the following factors:

15. [60]

    The sentencing judge did not accept the applicant’s explanation for his offending, finding as follows:

16. [61]

    The sentencing judge identified the applicant’s pleas of guilty and his lack of criminal antecedents as mitigating factors pursuant to s 21A(3) of the Sentencing Act.

17. [62]

    The sentencing judge accepted that the applicant had demonstrated “some remorse” for his offending, by both his entry of pleas of guilty at an early stage and also the shame and embarrassment he had expressed, recorded in Dr Lennings’ report.

18. [63]

    The sentencing judge accepted Dr Lennings’ opinion that the applicant’s overall risk of recidivism remained in the moderate range for non-contact sexual offending and that he is likely to be a low risk for a contact sexual offence. In light of his continuing denial of sexual interest in children, his Honour found that his prospects of rehabilitation “must remain guarded”. However, his Honour noted that his engagement in numerous courses and certificates of attainment demonstrated that he had been a model prisoner, “which leaves hope for those prospects to become positive”.

19. [64]

    After applying a discount of 25% for the applicant’s plea, the sentencing judge imposed the following indicative sentences:

20. [65]

    In applying the principle of totality, his Honour made the following findings:

21. [66]

    His Honour did not make a finding of special circumstances, as this was not contended for by the applicant, and his Honour found that the applicant’s time on parole would be sufficient for rehabilitation back into the community.

22. [67]

    As set out above, the sentencing judge imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 7 years and 6 months.

23. [68]

    In relation to the matters on the s 166 certificate, the sentencing judge found a conviction but imposed no further penalty: s 10A Sentencing Act.

Grounds 1(a) and 1(b)

1. [69]

   The applicant’s contention under ground 1(a) is that the sentencing judge made a mistake of fact when summarising the Agreed Facts in respect of sequence 77.

2. [70]

   The impugned factual finding is that which I have extracted above at [26] that includes the following:

3. [71]

   This finding that in relation to sequence 77, “the images and videos numbered in the hundreds”, was said to be contrary to the Agreed Facts, which reveals a duplication of the same images in the sequence, and the submission of the Crown on sentence that the number of images in sequence 77 “does not lend itself to quantification”. This error is said to have led to an error in the finding of objective seriousness as being “mid-range”, which in turn led to an error in the indicative sentence for that sequence and the overall aggregate sentence.

4. [72]

   The alternative contention under ground 1 is that even if this Court does not accept that the sentencing judge made a factual error, the sentencing judge erred in finding that the objective seriousness of sequence 77 was mid-range rather than below mid-range, as was submitted below. In support of this submission the Court was invited to have regard to the indicative sentences for sequences 74, 75 and 76 which involved a greater number of images all of which were category 1, rather than category 2 (which sequence 77 pertained to).

5. [73]

   The Crown submitted that the finding of “hundreds” of images was reasonably open to the sentencing judge noting that, at a minimum, and noting that not all of the images and videos were quantified in sequence 77, the images and video that could be quantified add up to 200 in any event. The Crown also relied on the ex tempore nature of the reasons and the fact that the sentencing judge indicated that he did not propose to summarise the facts in detail due to their explicit nature.

6. [74]

   As for ground 1(b) it was submitted that the finding of objective seriousness was reasonably open given the storage of at least 200 images over nine different storage devices depicting an actual child. The material depicted her labia and breasts on two devices. They were possessed for a period of three years. The sentencing judge found that the possession was for sexual gratification. It was accepted that ZM, at 15 years and 8 months, was at the upper end of the age range caught by the offence but it was submitted that age is just one factor relevant to the assessment. Further, it was submitted that the fact that the same images appear to have been duplicated over different devices led to greater accessibility.

Consideration: Ground 1(a)

1. [75]

   Turning first to ground 1(a), it is regrettable that the Agreed Facts lacked specificity as to what images were relied upon for sequence 77. For the Crown to submit that the number of images did not “lend itself to quantification” was unhelpful given that the number of images is a relevant factor when assessing objective seriousness: Hutchinson at [45].

2. [76]

   Although the applicant initially submitted that the Crown had disavowed reliance on the quantity of images for sequence 77 it was ultimately accepted that this was not the case and that sequence 77 was quantifiable to some degree.

3. [77]

   The complaint made under this ground is a narrow one: was it reasonably open for the sentencing judge to state in relation to sequence 77 that “[i]n total, the images and videos numbered in the hundreds”. Despite a lack of clarity as to whether there were duplicate copies involved, I accept the Crown submission that even putting to one side the unquantified images referred to in the Agreed Facts, the images which were quantified amounted to over 200 as follows:

   1. (1)

      The Lexar 16GB SD card contained 12 images;

   2. (2)

      The Toshiba 16GB SD card contained 12 images;

   3. (3)

      The Lexar 32GB SD card contained 20 images;

   4. (4)

      The Apple iPhone 13 Pro Max contained 50 images (plus the “unquantified” images) and 3 videos (and “unquantified” videos);

   5. (5)

      The Apple iCloud for the account genesis.cerezo@hotmail.com (cloud) contained 50 images (as well as the “unquantified” images) and a video (as well as the “unquantified” videos);

   6. (6)

      The Google account related to the account genesisvault.plugin@gmail.com (cloud) contained 7 images;

   7. (7)

      The Apple iPhone 11 Pro Max contained 50 images (plus the “unquantified” images);

   8. (8)

      The Apple iPhone 7 Plus contained “unquantified” images; and

   9. (9)

      The Apple iPhone 8 Plus contained “unquantified” images.

4. [78]

   Reading the remarks fairly I am satisfied that the judge was not stating that there were “hundreds” of images and “hundreds” of videos but rather all together there were hundreds of images and videos combined.

5. [79]

   I would not uphold ground 1(a).

Consideration: Ground 1(b)

1. [80]

   As for ground 1(b) the question is whether it was reasonably open to the sentencing judge to assess the objective seriousness for sequence 77 as “mid-range”: Hancock v R [2025] NSWCCA 213 at [46], [74]. In the frequently cited passage in Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ observed this about a challenge to such a finding:

2. [81]

   The Crown had submitted that the objective seriousness for sequence 77 was above mid-range whereas the applicant had submitted that it was below mid-range. The sentencing judge assessed it as falling between what was submitted by the parties.

3. [82]

   There is no requirement to assess the objective seriousness of an offence by reference to a notional range for the reasons explained in Dorsett v R [2024] NSWCCA 192 at [149]-[155] and more recently in Daher v R [2026] NSWCCA 26 at [4]-[14]. It is neither an error to do so nor to fail to do so. But if an assessment is made other than by reference to a notional range, it is incumbent on the sentencing judge to clearly articulate the factors which are relevant to the finding.

4. [83]

   It is most regrettable that the sentencing judge was not better assisted in submissions as to why his Honour would make a finding of below mid-range seriousness in relation to sequence 77. The submissions that were made (extracted above at [44]) ignored the policy behind the CAM provisions (Part 3, Division 15A of the Crimes Act) reflected in the fact that “child” is defined in s 91FA as, “a person who is under the age of 18 years”. That teenaged girls such as ZM might be “willing” to be photographed in sexualised positions showing their breasts (and on one occasion her labia) whilst dressed in lingerie is not a mitigating factor.

5. [84]

   Despite this, there were submissions which could have been made to assist his Honour in relation to this finding which were not made. These include that the images were all category 2, vastly less serious than the images referable to sequences 74-76 and there were less images. Further, it seems that there was a degree of duplication of the images relied upon. For example, at paragraph 24(c) of the Agreed Facts there was a reference to 50 images being taken on 21 January 2019 with a particular description. The same description and date is referred to at paragraph 29 of the Agreed Facts in relation to additional images. The fact that it is tolerably clear that they are referring to the same photos was not brought to the sentencing judge’s attention.

6. [85]

   It is to be accepted that the CAM possessed by the applicant referable to sequence 77 was all created by him. He had been able to do so by manipulating ZM into believing that she was “modelling” for him and the images were taken over a period of time in various locations. Although these matters are relevant to the assessment of objective seriousness, this aspect of the criminality was captured by sequence 78. There was thus a significant degree of overlap as between those two offences.

7. [86]

   Further it is to be noted that the sentencing judge fixed the same indicative sentence for sequences 74 and 77 despite the former pertaining to a much larger quantity of much more serious category 1 images and videos. Given that the applicant’s subjective case on both was similar if not identical, this suggests that the sentencing judge may have considered them to be of equal seriousness, despite finding sequence 74 to be above mid-range.

8. [87]

   The sentencing judge did not err in rejecting the submissions put on behalf of the applicant regarding the objective seriousness of sequence 77, but the absence of other assistance led his Honour into error. I am not satisfied that it was reasonably open for the sentencing judge to find that the objective seriousness for sequence 77 was mid-range.

9. [88]

   I would uphold ground 1(b).

Re-sentence

1. [89]

   Error having been established, this Court is required to put the aggregate sentence imposed by the sentencing judge to one side and exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]. Given that I would uphold ground 1(b), it is not necessary for this Court to consider ground 2. I will, however, have regard to the submissions made under that ground for the purposes of re-sentencing.

2. [90]

   The applicant relied on his affidavit sworn on 19 February 2026 in the event of re-sentence. During his time on remand, he has worked as a cleaner in the Parklea Clinic where he helped feed frail inmates, cleaned excrement and vomit, cleaned paralysed inmates and helped elderly inmates change their nappies. He has also worked as a sweeper and a barber in custody as well as working as a Barista at the Hunter Correctional Centre. He regularly attends Catholic Church services and has attended 16 units of education programs. He has the support of his mother and sister, but they struggle to visit him. He has not received any disciplinary action whilst in custody.

3. [91]

   It was submitted that it would be open to the Court to make different findings on prospects of rehabilitation and remorse in light of the additional material.

4. [92]

   The material showed that the applicant is willing to engage in criminogenic programs and hopes to gain a better understanding of the factors contributing to the offending. He observed that he had not fully appreciated at the time that CAM involves real victims and he now realised he has contributed to that harm.

5. [93]

   I would adopt all of the findings of the sentencing judge save as for three of them. First, I would assess the objective seriousness of sequence 77 as below mid-range. Secondly, I would find the applicant’s prospects of rehabilitation to be more favourable than simply being “guarded”. Further, I do not accept that the applicant’s remorse was “limited” as contended for by the Crown in relation to ground 2. The sentencing judge found that there was “some” remorse. Despite the fact that the applicant did not give evidence at the proceedings on sentence, I would re-sentence him on the basis that he is remorseful.

6. [94]

   I have had regard to the purposes of sentencing and in particular the need for general and specific deterrence in cases of this nature. I am satisfied that the aggregate sentence I would impose would meet the purposes of sentencing whilst being reduced from that that was imposed at first instance.

7. [95]

   It was submitted on behalf of the applicant that there had been excessive notional accumulation between the two groups of indicative sentences. It was noted that the total of the indicative sentences is 14 years and 3 months as against the aggregate sentence imposed of 10 years. During the hearing of the appeal, it was accepted on behalf of the respondent that there had been significant notional accumulation as between the indicative sentences.

8. [96]

   The applicant stood to be sentenced for five CAM-related offences, four of which pertained to CAM found in different places on different devices. These CAM offences all carried a maximum penalty of 10 years’ imprisonment. Most of the CAM was category 1 and sequences 75, 76 and 77 included multiple storage methods.

9. [97]

   The indicative sentences I would fix are the same as those imposed by the sentencing judge, save as that I would fix a lesser indicative sentences for sequences 75 and 77. Further, I would allow for significant notional concurrence as between sequences 77 and 78 (producing the CAM regarding ZM and then possessing the images taken). I would allow for some notional accumulation as between sequences 74-76, 77-78 and the weapons offence but a significant degree of notional concurrence is also required as between sequences 74-76.

10. [98]

    The indicative sentences would be as follows (after applying the 25% discount):

11. [99]

    Given that the appeal was confined to the aggregate sentence, it is not necessary to say anything further in relation to the two offences on the s 166 certificate for which the applicant was convicted but no further penalty was imposed pursuant to s 10A of the Sentencing Act.

Orders

1. [100]

   I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the sentence imposed on the applicant by Judge Mahony SC on 1 November 2024 and in lieu thereof sentence the applicant to an aggregate head sentence of 7 years and 6 months’ imprisonment to commence on 21 December 2021 and expire on 20 June 2029 with an aggregate non-parole period of 5 years and 3 months’ imprisonment to commence on 21 December 2021 and expire on 20 March 2027. The first date that the applicant will become eligible for parole is 21 March 2027.

2. [101]

   SIRTES J: I agree with the Chief Judge at Common Law.

3. [102]

   ROBERTS J: I agree with N Adams CJ at CL.