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Court of Criminal Appeal 1 May 2026

Vazquez v R

[2026] NSWCCA 49

Sexual offences
CRIMINAL APPEAL COMMONWEALTH SENTENCING TRANSMITTING CHILD ABUSE MATERIAL MATERIAL ERROR CONCEDED WHETHER LESS SEVERE SENTENCE WARRANTED WHETHER S 17A THRESHOLD CROSSED

Citation: Vazquez v R [2026] NSWCCA 49
Court: Court of Criminal Appeal (NSW)
Date: 1 May 2026
Judge(s): N Adams CJ at CL, Hamill J, Yehia J

Background

The applicant pleaded guilty in the District Court to two Commonwealth offences: attempting to import a commercial quantity of methamphetamine (794.7 grams) and using a carriage service to transmit child abuse material. A further offence of using a carriage service to access child abuse material was taken into account under s 16BA of the Crimes Act 1914 (Cth). After a 25% discount for early guilty pleas, the sentencing judge imposed 6 years and 3 months imprisonment for the drug offence and 4 months imprisonment for the transmitting offence, with a single non-parole period of 4 years.

The transmitting offence arose from a WhatsApp conversation discovered on the applicant's phone following his arrest for the drug offence. The applicant had exchanged child abuse material with a person called "Rodo," transmitting one image of a naked pre-pubescent child on 22 August 2023 and receiving three such images. The appeal concerned only the sentence for the transmitting offence.

The applicant contended the sentencing judge erred by treating s 20(1)(b) of the Crimes Act 1914 (Cth) as creating a "statutory presumption" that imprisonment must be imposed for Commonwealth child abuse material offences unless exceptional circumstances existed. The Crown conceded this error but argued no lesser sentence was warranted.

  • Whether the sentencing judge erred by applying a "statutory presumption" requiring imprisonment for the transmitting offence under s 20(1)(b) of the Crimes Act 1914 (Cth), absent exceptional circumstances.
  • Whether the established error was material, in the sense that it had the capacity to affect the sentence imposed.
  • Whether, on resentencing, a non-custodial sentence was appropriate for the transmitting offence, having regard to s 17A of the Crimes Act 1914 (Cth) and the circumstances of the offence and the offender.
  • Whether and how the correction of the error should affect the sentence for the drug offence, given the existence of a single non-parole period covering both offences.

Decision

The Court unanimously held that the sentencing judge erred in approaching the transmitting offence on the basis that s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) created a statutory presumption requiring imprisonment unless exceptional circumstances were shown. This approach was contrary to established authority, including R v Bredal [2024] NSWCCA 75, DPP (Cth) v Garside (2016) 50 VR 800, and Benn v R [2023] NSWCCA 24. The error was material because it had the capacity to affect the penalty actually imposed.

Exercising the sentencing discretion afresh, the Court agreed with the sentencing judge's finding that the transmitting offence was at a low level of objective seriousness for offences of its kind. The offence involved one image transmitted to a single recipient. There was no evidence that the applicant was part of a paedophile network, and no suggestion the transmission was for profit. The applicant was a young offender with no criminal record, had a deprived background, had demonstrated remorse, and was incarcerated far from family with the likelihood of deportation.

Applying s 17A of the Crimes Act 1914 (Cth), which reflects the common law principle that imprisonment is a sentencing option of last resort, the Court found that the purposes of punishment did not require a custodial sentence for the transmitting offence. Alternative penalties had to be considered. The Court determined that a community correction order under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), picked up by s 20AB of the Crimes Act 1914 (Cth), was the more appropriate penalty. The Court noted that the conditions attaching to a recognizance order under s 20(1)(a) would serve no practical purpose in the applicant's circumstances.

While the sentencing judge's error was discrete to the transmitting offence, the existence of a single non-parole period spanning both offences, combined with the earlier commencement date assigned to the transmitting offence, required consequential adjustments. The Court found no basis to interfere with the head sentence for the drug offence but reduced the non-parole period by one month and adjusted the commencement date of the drug sentence to reflect when the applicant actually went into custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence of 4 months imprisonment for the transmitting offence was quashed.
  • A two-year community correction order was imposed for the transmitting offence.
  • The head sentence for the drug offence (6 years and 3 months) was confirmed.
  • The non-parole period was reduced by one month.
  • The commencement date of the drug sentence was brought forward to the date the applicant went into custody.

Key Takeaways

  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), no "statutory presumption" requiring imprisonment for Commonwealth child abuse material offences exists. The Court of Criminal Appeal confirmed that treating the provision as creating such a presumption is an error of law, consistent with R v Bredal, DPP (Cth) v Garside, and Benn v R.

  • The threshold question under s 17A of the Crimes Act 1914 (Cth), described as "critically important," requires sentencing courts to consider all alternatives to imprisonment and reflects the common law principle that imprisonment is a last resort.

  • Section 20AB of the Crimes Act 1914 (Cth) picks up the community correction order provisions in s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), providing a viable non-custodial sentencing option for federal offenders sentenced in New South Wales.

  • A transmitting offence involving a single image sent to one recipient, with no evidence of profit motive or involvement in a paedophile network, can fall at a low level of objective seriousness sufficient to warrant a non-custodial outcome, particularly when combined with strong subjective circumstances.

  • Where a single non-parole period covers multiple offences and one sentence is set aside, consequential adjustments to the non-parole period and commencement dates may be necessary, even where the remaining sentence is undisturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Pt 1B, ss 16BA, 16E, 17A, 20, 20(1)(a), 20(1)(b), 20(1A), 20(1B), 20AB, 20AB(1AA)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 7, ss 5, 8, 8(1), 10A, 47, 67, 85(2), 86, 88, 89, 90
- Criminal Code (Cth), ss 3, 474.22, 474.22(1)

Key Cases:
- R v Bredal [2024] NSWCCA 75
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- DPP (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Harden v R [2024] NSWCCA 184
- *DPP (