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Court of Criminal Appeal 5 June 2026

Cerezo v R

[2026] NSWCCA 74

Sexual offencesFirearms & weapons
SENTENCED

Citation: Cerezo v R [2026] NSWCCA 74
Court: Court of Criminal Appeal, NSW
Date: 5 June 2026
Judges: N Adams CJ at CL; Sirtes J; Roberts J (unanimous)

Background

The applicant pleaded guilty in the Local Court to four offences of possessing child abuse material (CAM), one offence of using a child over 14 years to produce CAM, and one offence of possessing an unregistered firearm. The CAM offences fell into two distinct groups: three related to material the applicant had obtained online and stored across separate devices, and two related to photographs he took of a young female, ZM, whom he tricked into believing she was modelling for him.

On 1 November 2024, the District Court sentenced the applicant to an aggregate term of 10 years' imprisonment with a non-parole period of 7 years and 6 months, after applying a 25% discount for early guilty pleas. The sentence commenced on 21 December 2021.

The applicant sought leave to appeal against the aggregate sentence on the basis that the sentencing judge made an error of fact about the number of images and videos, incorrectly assessed the objective seriousness of one of the possession offences, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge made a material error of fact in finding that the images and videos for sequence 77 (possession of CAM relating to ZM) "numbered in the hundreds"
  • Whether the sentencing judge erred in assessing the objective seriousness of sequence 77 as mid-range
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1(a): Alleged error of fact regarding number of images and videos. The Court of Criminal Appeal found no error on this ground. Although the quantifiable images in the Agreed Facts for sequence 77 amounted to over 200, the sentencing judge had not stated there were "hundreds" of images and "hundreds" of videos separately. Rather, he referred to hundreds of images and videos combined. That characterisation was not inconsistent with the Agreed Facts.

Ground 1(b): Objective seriousness of sequence 77. The Court found error here. The images referable to sequence 77 were all category 2, significantly less serious than the category 1 material in sequences 74 to 76, and some were duplicated. Further, the criminality involved in tricking ZM into posing was largely captured by sequence 78 (the producing offence), creating a significant overlap between sequences 77 and 78. Despite these material differences, the sentencing judge assigned the same indicative sentence to sequences 74 and 77. The Court held it was not open to find sequence 77 was of mid-range objective seriousness when compared with the assessment of sequence 74.

Re-sentence. The Court assessed the objective seriousness of sequence 77 as below mid-range. It also found the applicant's prospects of rehabilitation were more favourable than "guarded," and that he was genuinely remorseful. Significant notional concurrence was allowed between sequences 77 and 78, and between sequences 74 to 76. Reduced indicative sentences were fixed for sequences 75 and 77. Given the error established under ground 1(b), the Court did not need to separately address the manifest excess ground.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Mahony SC on 1 November 2024 quashed.
  • In lieu thereof, the applicant was sentenced to an aggregate head sentence of 7 years and 6 months' imprisonment commencing 21 December 2021 and expiring 20 June 2029.
  • Aggregate non-parole period of 5 years and 3 months commencing 21 December 2021 and expiring 20 March 2027.
  • First eligible parole date: 21 March 2027.

Key Takeaways

  • A sentencing judge's reference to a combined total ("hundreds of images and videos") does not constitute a factual error merely because the component figures could be separately quantified from the Agreed Facts, provided the overall characterisation is consistent with the evidence.

  • Where Agreed Facts lack specificity, the Court of Criminal Appeal will consider the full available content of those facts to assess whether a factual finding by the sentencing judge was open, rather than treating the lack of precision as automatically constituting error.

  • A significant overlap between a producing offence and a possessing offence concerning the same material is a material consideration in assessing objective seriousness. Assigning equivalent indicative sentences to two possession offences where one involved substantially less serious, category 2 material may constitute identifiable error.

  • In re-sentencing, the Court of Criminal Appeal applied significant notional concurrence between the producing and possessing offences relating to the same victim, reflecting the principle that sentences should not doubly punish conduct that is substantially the same criminal episode.

  • Under the category framework applied in NSW CAM sentencing, the distinction between category 1 and category 2 material carries significant weight in assessing objective seriousness, and duplication of images within a charged quantity is a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91FA, 91G(2), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 36(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Daher v R [2026] NSWCCA 26
- Dorsett v R [2024] NSWCCA 192
- Harden v R [2024] NSWCCA 184
- Hancock v R [2025] NSWCCA 213
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- R v Hutchinson [2018] NSWCCA 152