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Catchwords: CRIMINAL APPEAL – Commonwealth sentencing – transmitting child abuse material – where sentencing Judge applied a “statutory presumption” that a sentence of imprisonment be imposed – approach contrary to authority and to statute – material error conceded – whether less severe sentence warranted – whether s 17A threshold crossed – big house – consideration of alternative penalties – where applicant serving longer sentence for attempted drug importation – where applicant likely to be deported – where community correction order under State sentencing legislation picked up by Commonwealth statute – more appropriate penalty in the circumstances
CRIMINAL LAW – sentencing – transmitting child abuse material – objective seriousness – relevant considerations – depiction of actual child – where one image transmitted to a single recipient – no evidence part of paedophile network – no suggestion transmission was for profit – young offender with no criminal record – findings of remorse – plea of guilty – deprived background – incarceration far away from family – sentence other than imprisonment appropriate

Legislation Cited: 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)

Cases Cited: Almaouie v R [2021] NSWCCA 274
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Christian v R [2021] NSWCCA 300
Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60
Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74
Green v R [2022] NSWCCA 230
Hancock v R [2025] NSWCCA 213
Harden v R [2024] NSWCCA 184
JA v R [2024] NSWCCA 130
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
Mouscas v R [2008] NSWCCA 181
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Phibbs v The King [2023] VSCA 123
R v Bredal [2024] NSWCCA 75
R v De Leeuw [2015] NSWCCA 183
Sarhene v R [2022] NSWCCA 79

Texts Cited: N/A

Category: Principal judgment

Parties: Kevin Alejandro Rosales Vazquez (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

Representation: Counsel:
I McLachlan (Applicant)
J Roy SC with C Egan (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2023/00287972

Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against a sentence imposed in the District Court on 11 April 2025 following his pleas of guilty to two federal offences, namely attempting to import a commercial quantity of a border-controlled drug (794.7 grams of methamphetamine) and using a carriage service to transmit child abuse material. After a 25% discount for his early pleas of guilty was applied, the applicant was sentenced to 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 applicant sought to appeal only in relation to the sentence for the transmitting offence which took into account a further offence of using a carriage service to access child abuse material pursuant to s 16BA of the Crimes Act 1914 (Cth).

Following the applicant’s arrest for the drug offence, police examined his telephone and located a WhatsApp conversation with a person called Rodo. During this conversation, the applicant sent (transmitted) and received (accessed) child abuse material. The accessing offence involved receiving one image from Rodo on 17 August 2023 and two images on 22 August 2023, each depicting a naked pre-pubescent child aged between 3 and 8 years old and in two cases, posed in a sexual manner. The third of those images was transmitted by the applicant to Rodo on 22 August 2023 at 8:26am and again at 10:25pm. There was a dispute on the appeal relating to the proper construction of the agreed statement of facts tendered on sentence and whether it was Rodo or the applicant who first transmitted the third image to the other.

The applicant relied on two grounds of appeal:

“In sentencing the applicant for Seq.5 (the ‘transmit’ offence), his Honour erred in:

a) Finding that s.20(1)(b)(ii) and/or (iii) of the Crimes Act 1914 (Cth) created a statutory presumption for offenders being sentenced for a Commonwealth child abuse material offence to be sentenced to an actual term of imprisonment unless there were ‘exceptional circumstances’; and/or

b) Imposing a sentence was manifestly excessive.”

The respondent conceded that the first ground was established and constituted a material error but submitted that the appeal should be dismissed because no lesser sentence is warranted in law.

The Court held, granting leave to appeal, allowing the appeal and re-sen****tencing the applicant (Hamill J, N Adams CJ at CL and Yehia J agreeing):

(1) The sentencing Judge erred by approaching the case on the basis that s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) created a statutory presumption requiring a sentence of imprisonment for the transmitting offence unless exceptional circumstances were established. The error had the capacity to affect the penalty imposed on the applicant and was material in the relevant sense: [28], [50] per Hamill J (N Adams CJ at CL agreeing at [1] and Yehia J agreeing at [73]).

R v Bredal [2024] NSWCCA 75, Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74 and Benn v R [2023] NSWCCA 24; (2023) 205 A Crim R 550 applied. Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 referred to.

(2) In exercising the sentencing discretion afresh, and in accordance with s 17A, it is necessary to consider all other alternatives to decide whether a sentence of imprisonment is the only appropriate disposition. This decision, which reflects the common law principle that imprisonment is a sentencing option of last resort, is critically important. 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, and when considered against the applicant’s subjective circumstances, the purposes of punishment did not require the imposition of a custodial sentence: [48], [50]-[51], [63]-[64] per Hamill J (N Adams CJ at CL agreeing at [1] and Yehia J agreeing at [73]).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Sarhene v R [2022] NSWCCA 79 applied. Harden v R [2024] NSWCCA 184, Mouscas v R [2008] NSWCCA 181, D**irector of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60, R v De Leeuw [2015] NSWCCA 183, Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74 and Phibbs v The King [2023] VSCA 123 discussed.

(3) Section 20AB of the Crimes Act 1914 (Cth) picks up s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides for the alternative penalty of a community correction order. This was the more sensible sentencing option in circumstances where the conditions that must be attached to a recognizance order under 20(1)(a) of the Crimes Act 1914 (Cth) would serve no practical purpose in the applicant’s case: at [58]-[59], [65] per Hamill J (N Adams CJ at CL agreeing at [1] and Yehia J agreeing at [73]).

(4) While the sentencing Judge’s error was a discrete one, its impact on the sentence for the drug offence is complicated by the existence of a single non-parole period for both offences and the earlier commencement date for the transmitting offence. While there was no basis to interfere with the sentence imposed for the drug offence, the non-parole period was reduced by one month and the commencement date of the drug sentence was adjusted to reflect when the applicant went into custody: at [68]-[70] per Hamill J (N Adams CJ at CL agreeing at [1] and Yehia J agreeing at [73]).

Christian v R [2021] NSWCCA 300 cited. Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, Almaoui**e v R [2021] NSWCCA 274, Green v R [2022] NSWCCA 230 and JA v R [2024] NSWCCA 130 considered.

(5) The head sentence for the drug offence was confirmed but the non-parole period was reduced by one month and the commencement date brought forward to the date the applicant went into custody. A two year community correction order was imposed for the offence of transmitting child abuse material: at [65], [70]-[71] per Hamill J (N Adams CJ at CL agreeing at [1] and Yehia J agreeing at [73]).

JUDGMENT

1. N ADAMS CJ at CL: I agree with Hamill J.

2. HAMILL J: Kevin Alejandro Rosales Vazquez seeks leave to appeal against a sentence imposed by Judge McGuire SC (as McGuire J then was) in the District Court on 11 April 2025. The sentence was imposed following the applicant’s pleas of guilty to two federal offences, namely attempting to import a commercial quantity of a border-controlled drug (794.7 grams of methamphetamine) and using a carriage service to transmit child abuse material (respectively the “drug offence” and the “transmitting offence”). After reducing the sentences by 25% to reflect the applicant’s early guilty pleas, his Honour imposed a sentence of 4 months imprisonment commencing on 10 September 2023 for the transmitting offence and a sentence of 6 years and 3 months imprisonment commencing on 10 October 2023 for the drug offence. There was a single non-parole period of 4 years commencing on 10 September 2023 and expiring on 9 September 2027.

3. The applicant advanced two grounds of appeal:

“In sentencing the applicant for Seq.5 (the ‘transmit’ offence), his Honour erred in:

a) Finding that s.20(1)(b)(ii) and/or (iii) of the Crimes Act 1914 (Cth) created a statutory presumption for offenders being sentenced for a Commonwealth child abuse material offence to be sentenced to an actual term of imprisonment unless there were ‘exceptional circumstances’; and/or

b) Imposing a sentence was manifestly excessive.”

4. The respondent conceded that the first ground is established and, for the reasons to follow, I accept that concession. The respondent went on to submit that, while the legal error was a material one, the appeal should be dismissed because no lesser sentence is warranted in law. I am unable to accept that submission. I would allow the appeal and impose a non-custodial sentence in relation to the transmitting offence. Contrary to a submission made on the applicant’s behalf at the hearing of the appeal, I would not interfere with the sentence imposed for the drug offence other than to adjust the commencement date and the term of the single non-parole period.

A brief overview of the facts relevant to sentence

5. The facts of the offences were largely agreed between the parties and an agreed statement of facts highlighted the matters upon which the parties could not agree. There was a factual issue concerning the transmitting offence which arose on the appeal and will be discussed in the context of re-sentencing.

The drug offence

6. On 20 June 2023, the applicant arrived in Sydney and checked into the Drummoyne Furnished Apartments. On 19 July 2023, a consignment (referred to as a “dummy run”) was sent from the United States to a consignee named “Alejandro EVANS” at the Drummoyne Apartments. On 21 July 2023, the applicant sent WhatsApp messages to the Site Manager of the apartments informing him that a package was arriving that day and asking that it be held for him and delivered later. On 21, 23 and 28 July 2023, the applicant took photos of the contents of the consignment showing a number of plastic bags containing a white substance and a white substance in a pile on top of sheets of newspapers. The contents of that consignment were not analysed and the prosecuting authority could not establish that it contained border-controlled drugs.

7. On 8 August 2023, a DHL express consignment purporting to contain “SAMPLE OF NEW VOLTAGE CONVERTER FOR INDUSTRIAL USE” (Consignment 672) was sent from an address in Mexico to a consignee named “Alejandro EVANS” at the Drummoyne Apartments. The consignee’s ‘phone number was subscribed to the applicant. On 10 August 2023, US Customs and Border Protection officers intercepted the consignment and it was found to contain an electronic box with a centre coil, inside of which were two plastic bags containing a white crystalline substance. The bags were analysed and found to contain a total of 794.7 grams of pure methamphetamine.

8. On 10 August 2023, the applicant signed a lease for a room at Canterbury Student Places in Redfern. Between 13 August 2023 and 10 September 2023, the applicant used an encrypted application to exchange messages with an unknown person with the username “Walter”. The communications related to tracking the consignment and the applicant’s expenses including his rent and food. On 16 August 2023, Walter sent an attachment titled “Kevin_Alejandro_$_50,000.pdf” and the applicant confirmed he had received the money. There was a factual dispute as to whether this figure referred to Mexican pesos or Australian dollars. The sentencing Judge held that the evidence “[did] not permit a finding” that the parties were referring to Australian dollars, but his Honour held that, whatever the currency, the amount the applicant received was sufficient to pay his expenses in Australia. However, his Honour did not make a positive finding as to the amount the applicant received for his involvement in the importation. On 17 August 2023, Walter provided the tracking number of the consignment and the applicant tracked it via the DHL tracking website on his ‘phone. On 8 September 2023, Walter sent a message telling the applicant that he hoped the consignment would be delivered that day. The applicant made enquiries with the manager of the Drummoyne Apartments about making a further booking. He was arrested when he attended the apartments on 10 September 2023 to make the booking.

9. On 10 August 2023, four consignments described as identical to Consignment 672 purporting to contain “SAMPLE OF NEW VOLTAGE CONVERTER FOR INDUSTRIAL USE” were sent from an address in Mexico to the same consignee, “Aljandro EVANS” and the same Drummoyne Apartments address. The prosecution conceded it was unable to establish that the offender had any knowledge of those additional consignments and the sentencing Judge did not have regard to the facts relating to the four additional consignments.

10. There were communications between the applicant and Walter in relation to a further consignment between 21 August 2023 and 23 August 2023 including discussions about the progress of the consignment. That further consignment was seized at Melbourne Airport on 18 July 2023 and returned a positive presumptive test result for methamphetamine. However, no confirmatory tests were performed and the prosecution conceded it was unable to prove the consignment contained border-controlled drugs or that the applicant took any steps to import or obtain possession of it.

The transmitting offence and an offence of accessing child abuse material taken into account under s 16BA of the Crimes Act 1914 (Cth)

11. The applicant’s telephone was examined and police “located a conversation between the [applicant] and an unknown person with the username ‘Rodo Puebla’ (Rodo) on WhatsApp, during which child abuse material was received and sent by the [applicant]”. The applicant was sentenced for transmitting an image containing child abuse material to Rodo. He was also charged with using a carriage service to access child abuse material (“the accessing offence”) and that offence was taken into account in sentencing for the transmitting offence: Crimes Act 1914 (Cth) (“Crimes Act 1914”), s 16BA. Both offences are contrary to s 474.22(1) of the Criminal Code (Cth) (“the Code”), [1] and each carries a maximum penalty of 15 years imprisonment when charged separately.

12. The accessing offence involved receiving one image from Rodo on 17 August 2023 and two images on 22 August 2023. The images were described as follows:

13. One image depicting a pre-pubescent male aged about 3-5 years old. The male is grinning, not wearing a shirt and has the front of his pants pulled down exposing his penis.

14. One image of a naked pre-pubescent child aged approximately 5-7 years old with their back toward the camera. The child’s gender cannot be determined. They were “positioned between the spread legs/vaginal region of a female, whose age is unknown … but who has developed breasts.”

15. One image of a pre-pubescent child aged about 6-8 years old who is kneeling on a bed with “his arms/hands out, showing two thumbs up”. The child’s “groin area [is] embedded in the buttock region of a second person, who is bent over on all fours.” The second person’s face and genitals cannot be seen and the gender and age of the second person is not known.

16. It was this third image – hereafter referred to as “image (3)” – that was sent (transmitted) by the applicant to Rodo on 22 August 2023 at 8:26am and 10:24pm. The applicant transmitted the image again, by replying to himself, at 10:25pm with the commentary “Jajajajajaa”. The parties agreed this represented laughter, the Spanish version of “hahahaha”. It will be necessary to return to the circumstances and chronology of these messages to resolve the factual dispute which developed on the appeal.

The applicant’s personal circumstances

14. The applicant was a 20-year-old man at the time of the offending with no convictions recorded in Australia. The sentencing Judge said he would apply a 25% discount for the pleas of guilty and accepted that the applicant was remorseful based on a letter he wrote to the Court and conversations he had with his mother. His Honour found Mr Vazquez had some insight into his conduct and had acknowledged the harm done by child abuse material and the international trafficking of drugs.

15. The applicant grew up in circumstances of financial deprivation in Mexico and was exposed to family violence perpetrated by his father against his mother. He was subjected to corporal violence as punishment at the hands of his mother and grandmother. His father was murdered in a home invasion and his brother “disappeared”, was presumed to have died and his body was never recovered. This left Mr Vazquez with no male role models in his family but he was described as a “happy child” and the forensic psychologist Dr Sidhu said he found “much needed stability in the school environment as it provided him with structure”. The applicant performed well academically and was able to complete the Mexican equivalent of the high school certificate. He would have liked to undertake tertiary education, but his family could not afford this expense.

16. The sentencing Judge acknowledged that this history of deprivation and childhood trauma had the capacity to impact on the applicant’s moral culpability. However, his Honour noted his family life was generally “supporting and loving”, that he managed to perform well at school and obtain employment, and concluded:

“I am not satisfied that the evidence establishes that the offender suffered from such deprived and difficult circumstances during his childhood that it results in him having a reduced moral culpability or that he is an inappropriate vehicle for general deterrence”.

17. This finding was not challenged on appeal.

18. The sentencing Judge found that Mr Vazquez’s time in custody was more onerous because of his limited ability to communicate in English and the lack of family visits which has resulted in him being isolated in gaol.

The legal error in the sentencing judgment

19. In sentencing for a Commonwealth offence or a series of Commonwealth offences, sentencing judges are confronted with the byzantine and dizzying provisions of Pt 1B of the Crimes Act 1914. A critical section is s 17A which reflects the common law constraint that imprisonment is the sentencing option of last resort. It says:

(1) A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

20. Section 20 concerns the conditional release of offenders after conviction, and provides in sub-s (1)(b):

(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

…

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

(i) if none of the offences is a Commonwealth child sex offence-- either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances--after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately.

21. I will also note in passing the provision in s 20AB which permits a court to impose various sentencing options or non-custodial orders that may be imposed in “corresponding cases” under State law.

22. The interaction between ss 17A and 20(1)(b), and the need to read Pt 1B holistically, was discussed by Dhanji J in R v Bredal [2024] NSWCCA 75. It is unnecessary to repeat his Honour’s careful and helpful analysis in detail, but Dhanji J said, with the concurrence of Harrison CJ at CL and Button J, and with my emphasis:

“55. … Section 20(1)(b)(iii) does not provide a general restriction on the imposition of non-custodial sentences for such offences. It has no application to the making of orders under s 19B, s 20(1) of the Crimes Act or a community corrections order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’), as picked up by s 20AB.

…

57. The result is that, in sentencing for a Commonwealth child sex offence, when the s 17A threshold is crossed and a sentence of imprisonment is consequently to be imposed, and that sentence does not exceed 3 years, and the Court does not engage an alternative to full-time imprisonment such as an ICO, there is a legislative presumption that, at least, some part of that sentence should be served in actual custody. Part 1B of the Crimes Act must, of course, be read as a whole. While other sentencing options may not require passage through the restricted s 20(1)(b) aperture, the presence of s 20(1)(b) is not entirely irrelevant. The presence of that restriction says at least something as to the seriousness with which Commonwealth child sex offences are viewed.”

23. In dealing with these interacting and at times confusing provisions, and when contemplating the sentencing options on the transmitting offence, the sentencing Judge said at [72]:

“The present offence, being an offence contrary to 474.22(1), is within the definition of ‘Commonwealth child sex offence’ in s 3 of the Crimes Act 1914. By operation of [s 20(1)(b)(ii)] there is a statutory presumption that an offender who is to be sentenced for a Commonwealth child sex offence as defined by s 3 will receive an actual term of imprisonment unless the court is satisfied that there are exceptional circumstances.”

24. Again at [132], his Honour said:

“Legislation requires an offender being sentenced for a Commonwealth child abuse material offence to be sentenced to an actual term of imprisonment unless there are ‘exceptional circumstances’ justifying the immediate release of the offender.”

25. The sentencing Judge did not deal with the “threshold” question under s 17A until after those remarks were made.

26. The applicant submits, and the respondent concedes, that his Honour erred in approaching the case on the basis that there was “a statutory presumption” requiring a full-time gaol sentence for the transmitting offence. Further, and relatedly, the parties agreed it was erroneous to proceed on the basis that the applicant was required to establish “exceptional circumstances” before a sentence other than imprisonment could be imposed for the transmitting offence.

27. The respondent’s concession was well put in the following part of Ms Roy SC and Ms Egan’s written submissions:

“36. The Respondent accepts that the sentencing judge’s statements at [72] and [132] of the Remarks on Sentence were misstatements of the law.

37. The effect of s 20(1)(b)(ii) of the Crimes Act is that, where a person is convicted of a federal offence, the court may, if it thinks fit, sentence the person to imprisonment but direct that the person be released upon giving security. If at least one of the offences is a Commonwealth child sex offence, and the court is not satisfied that there are exceptional circumstances, the offender must serve a specified period of imprisonment before release. That is, s 20(1)(b) only falls for consideration after a Court has determined that a sentence of imprisonment is the only appropriate sentence in all the circumstances of the case in accordance with s 17A.

38. There is no statutory presumption created by s 20(1)(b) or any other legislation which requires that an offender being sentenced for a Commonwealth child sex offence must be sentenced to an actual term of imprisonment in the absence of exceptional circumstances.

39. An exchange in the proceedings about the availability of non-custodial sentencing options (specifically, a fine), and the sentencing judge’s reference to s 17A of the Crimes Act in the ROS indicate that his Honour was mindful that there was no requirement that he sentence the Applicant to full-time custody.

40. However, in the ROS, his Honour turned to the s 17A threshold after the two incorrect statements of law that there was a statutory presumption requiring a full-time custodial sentence, unless exceptional circumstances were established.”

28. I accept the submission made by both parties that the sentencing Judge misapplied the provision in s 20(1)(b) and, in doing so, fell into error in his approach to sentencing for the transmitting offence. The error plainly had the capacity to affect the penalty imposed on the applicant and was material in the relevant sense: Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 at [82] and cf Brawn v T**he King [2025] HCA 20; (2025) 99 ALJR 872 at [10] and MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [61].

29. Accordingly, ground (a) must be upheld. Once that conclusion is accepted, it becomes necessary to exercise the sentencing discretion afresh in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentencing: is a less severe sentence warranted?

Affidavits on re-sentence

30. The applicant read an affidavit on the usual basis: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4], [46], [52]. This set out his progress while in custody and his future plans. He has had employment throughout his time in custody, including since his sentence was imposed. He has been working in a car wash for the last seven months where he cleans ambulances. He is studying English, undertaking a literacy and numeracy course and has been involved in religious studies. He tries to speak to his mother in Mexico when he can but this is complicated by the different time zones and the expense of international telephone calls from prison.

31. Mr Vazquez envisages returning to Mexico and studying nursing so he can work in hospitals like his mother. The death of his father and his brother still weigh heavily on him and he feels guilty for committing the offences because of the people he let down.

32. The applicant’s solicitor, Ms Durovic, affirmed an affidavit which annexed the applicant’s custodial history and certificates of courses he has completed since he was arrested on 10 September 2023 and sentenced on 11 April 2025. The applicant has been a model inmate and has no recorded infractions. He has engaged in those programmes that have been available to him.

A factual error in the applicant’s favour?

33. The respondent submitted that the sentencing Judge made a factual error favourable to the applicant in relation to the transmitting charge and that, if the Court came to re-sentence, it ought not to perpetuate or repeat that error. Mr McLachlan, who appeared for the applicant, submitted there was no such error but accepted there was an ambiguity in the agreed facts that was capable of two interpretations. He submitted the Prosecutor at first instance appeared to construe the facts in the same way as the sentencing Judge.

34. The sentencing Judge said that the applicant “retransmitted the image back to the person [Rodo] who had earlier sent it to him”. The respondent says this was factually incorrect because the statement of agreed facts alleged (with my emphasis):

“34. On 22 August 2023, the [applicant] received the following two images of child abuse material from Rodo during their WhatsApp conversation.

34.1 [A description of image (2) as per [12] above].

34.2 [A description of image (3) as per [12] above].

(a) This image was first sent by the [applicant] on the same day, as set out at [35] below.

I. SEQUENCE 5 – USE CARRIAGE SERVICE TO TRANSMIT CHILD ABUSE MATERIAL

35. On 22 August 2023 at 8:26am, the [applicant] sent one image of child abuse material described at [34.2] above to Rodo via WhatsApp. The [applicant] re-sent the same image to Rodo at 10:24pm on the same day.

36. On the same day, at 10:25pm, the [applicant] replied to his own message containing the same image (sent at 10:24pm) and included the commentary ‘Jajajajajaa’.”

35. The respondent submitted that the reference in 34.2(a) to the applicant “first [sending]” the image was a reference back to the chapeau to paragraph 34; that is, the document intended to convey that the applicant sent the image to Rodo first, and Rodo sent it back to him, rather than the other way around. Conversely, the applicant submitted that the reference to the applicant “first [sending]” image (3) was at least capable of being seen as a reference to the fact that the applicant sent the image more than once, the first time at 8:26am.

36. The difficulty in resolving those alternative interpretations is that the reference to Rodo sending image (3) to the applicant does not indicate a time of that transmission. The absence of this detail creates the ambiguity to which Mr McLachlan referred.

37. The Prosecutor’s written submissions in the District Court included the following passages:

“29. In summary, on 22 August 2023, the [applicant] sent one image of child abuse material to an unknown person [ie Rodo]. The [applicant] sent the same image to the same recipient twice.

…

33. In this case, the 16BA Schedule Offence involved the [applicant] communicating with the same person on WhatsApp on two separate days – 17 and 22 August 2023 – during which the [applicant] received a total of three images of child abuse material (including the one transmitted by him, being the subject of the sequence 5 offence).”

38. Counsel for the applicant at first instance (not Mr McLachlan) submitted the applicant “only transmitted one image to Rodo” and that “this was an image that Mr Vazquez had received from Rodo.” In argument, the sentencing Judge indicated an acceptance of this submission when he said:

“even if it is … sending it back to somebody who has sent it the first time … that he’s not sent it to a new audience so to speak”.

39. The Prosecutor was invited to reply and made a few points but did not raise what his Honour had said about the transmitting offence. At no stage did the Prosecutor take issue with defence counsel’s submissions on the subject.

Resolution

40. The statement of facts was ambiguous and given the submissions of the parties, the sentencing Judge cannot be criticised for taking the approach that he did.

41. With the benefit of hindsight and the focussed and helpful submissions by experienced and diligent counsel, it may be that the construction advanced by Ms Roy SC and Ms Egan is more likely the correct one. However, it was “reasonably open” for the sentencing Judge to reach the factual conclusion that he did: Hancock v R [2025] NSWCCA 213 at [73]. As the respondent submitted, the Court could, on the question of re-sentence, revisit that factual finding. There is no estoppel preventing the Director from re-litigating the point. However, there is a question of fairness to an offender who is to be sentenced for a second time because of an error in the initial proceedings. That issue of fairness is compounded by the muted approach taken by the Prosecutor at first instance. In any event, while the issue has some relevance to an assessment of the gravity of the offending, there are much larger issues to consider in making that assessment.

Objective gravity of the transmitting offence

42. While each case will turn on the features of the particular charged offence, the matters that bear upon an assessment of the objective seriousness of an offence of transmitting or accessing child abuse material have been discussed by intermediate appellate courts around Australia: see, for example, Director of Public Prosecutions (Cth) v D*’*Alessandro (2010) 26 VR 477; [2010] VSCA 60, R v De Leeuw [2015] NSWCCA 183 and Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74. Relevant matters will include:

43. Whether the images (or image) depict real children (or a real child) or is/are produced by artificial intelligence or animation,

44. The nature and content of the pornographic material including the age of the children (or child) and the relative depravity of the sexual activity portrayed,

45. The number of images possessed or transmitted,

46. The breadth or extent of the distribution (transmission) of the child abuse material,

47. The motive for the offence including whether the material is transmitted (or accessed) for the purpose of sale or further distribution and whether the offender will, or intended to, profit from the offence,

48. Whether the offending formed part of a wider and systemic network of paedophiles.

49. In the applicant’s case, the transmitting offence was a serious one because it involved the depiction of a real child as opposed to an image created by animation or artificial intelligence. The child was naked and posed in a sexual manner. Like the sentencing Judge, this Court must take into account the serious and long-term psychological harm caused to children who are preyed on by people involved in the international and domestic trade in child pornography.

50. On the other hand, there was only one child involved and, compared to many cases, the number of images was small: contrast, for example, Mouscas v R [2008] NSWCCA 181, D**irector of Public Prosecutions (Cth) v D*’Alessandro, R v De Leeuw and D**irector of Public Prosecutions (Cth) v Garside.* The transmitting offence, for which the applicant is to be sentenced, involved one image which was transmitted twice (or three times). The transmissions were all to a single individual and not to a wider audience or network of paedophiles. Without underestimating the wickedness inherent in the picture, the image transmitted (and those accessed by the applicant) did not feature the depravity seen in many cases involving the possession and dissemination of child pornography: cf the disturbing and extraordinarily depraved material described by the current Chief Judge at Common Law in Harden v R [2024] NSWCCA 184. While the applicant transmitted the image three times it was to the same person on each occasion. There was nothing to suggest that the purpose of the transmission was sexual gratification or titillation. The message accompanying the third transmission suggested it was an immature and misguided attempt at humour.

51. Between the transmitting offence and the accessing offence that was taken into account under s 16BA, there were three real children aged between 3 and 8 years depicted in the images. Each child was naked and in two cases posed in a sexual manner. However, the facts of the matter on the s 16BA schedule cannot increase the objective gravity of the offence for which the applicant must be sentenced.

52. The sentencing Judge observed correctly that there was “nothing to establish any risk that the material would be seen by vulnerable persons or by persons susceptible to act in the manner depicted.”

53. While this was a serious offence, it was very far removed from the most serious cases and the number of images, breadth of the dissemination and motive and purpose of the transmission suggest it is less serious than most cases charged under s 474.22 of the Code and other provisions proscribing the transmission or distribution of child abuse material.

54. I agree with the sentencing Judge’s assessment that “the child abuse transmission offence is at a low level of objective seriousness for offences of that type.”

Section 17A and the appropriate penalty for the transmitting offence

49. Senior Counsel for the respondent submitted that no sentence other than imprisonment was appropriate whereas Mr McLachlan submitted:

“The point really is this, were he facing just a sentence on this matter alone, there’s no way he would ever spend a day in the big house, that’s really the submission.”

50. In deciding the appropriate penalty to impose on the applicant, it is necessary to consider all other options to decide whether a sentence of imprisonment is the only appropriate disposition: Crimes Act 1914, s 17A. There is no presumption that a sentence of imprisonment should be imposed and the applicant is not required to establish exceptional circumstances before he escapes such a sentence: see R v Bredal, D**irector of Public Prosecutions (Cth) v Garside and generally Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101]-[106].

51. Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) is the New South Wales equivalent of s 17A. The importance of the questions raised by such provisions was emphasised in the case of Sarhene v R [2022] NSWCCA 79:

“36. The decision under s 5(1) of the Crimes (Sentencing Procedure) Act is critically important. It reflects the long standing and fundamental prescript that a sentence of imprisonment must only be imposed as a measure of last resort. The section provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

…

38. While there are crimes so grave that there is no real alternative but to impose a sentence of imprisonment, the decision under s 5 should include considerations of all matters relevant to sentence, not only the objective facts of the crime and the requirement for general deterrence.”

52. It is established that general deterrence must be a substantial consideration in cases of this nature. Denunciation and retribution also have substantial roles, particularly when one takes into account the accessing offence on the s 16BA schedule: cf for example Attorney General*’*s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. However, there are many other features of the case that militate against the imposition of a custodial sentence, not least of which was the sentencing Judge’s assessment of the objective seriousness of the offence with which I respectfully agree. Other significant factors included Mr Vazquez’s youth, his contrition, his isolation in custody from his home and family, and the murder of his father and disappearance of his brother. These are weighty matters to consider in sentencing a 20-year-old offender.

53. As can be gleaned from the authorities to which reference was made earlier, most cases of this kind involve offending of much greater objective seriousness. The parties brought only one comparable case to the attention of the Court: Phibbs v The King [2023] VSCA 123. In Phibbs v The King, the County Court imposed a total effective sentence of 15 months imprisonment, but the offender was released forthwith on entering a 3-year recognizance release order. The case involved two charged offences under s 474.22(1). The first offence involved the offender and another adult male “chatting” in “explicit and abhorrent terms” about the sexual activities they had engaged in, and wanted to engage in, with children. The second offence involved the possession of child abuse material which included a pre-pubescent child performing fellatio on an adult, a pre-pubescent child masturbating while another child watched, and a pre-pubescent child, with his penis exposed, being held upside down by an adult male whereby “the child was about to perform fellatio” on the adult. The applicant was a 46-year-old man with no prior criminal history.

54. The Victorian Court of Appeal (Beach and Kyrou JJA) found that the sentencing Judge erred in imposing wholly cumulative sentences and that the sentence was excessive. However, their Honours held that no sentence other than one of imprisonment was sufficient to meet all the purposes of punishment. Even so, the Court took the view that the offender should be released immediately on entering a bond. In the result, the applicant was re-sentenced to wholly concurrent terms of imprisonment of 1 month and 6 months but was released forthwith on a 1-year recognizance release order.

55. Statistics maintained by the New South Wales Judicial Commission’s Judicial Information Research System (and accessed on 2 April 2026) show that of 63 offenders dealt with for offences under s 474.22(1), 31 offenders (49.2%) received full time custodial sentences while the remaining offenders received sentences other than imprisonment. 26 offenders (41.3%) were convicted and subject to conditional release orders under s 20(1)(b) of the Crimes Act 1914 while a single offender received a community correction order pursuant to s 8 of the Sentencing Procedure Act. The relevant graph looks like this:

56. Consistency of punishment is important, and it may be accepted that in cases of this kind matters personal to an offender receive less weight than the requirement for adequate punishment, denunciation and general deterrence, but the statistics show that there is room for sentences other than imprisonment. However, as Beach and Kyrou JJA said in Phibbs v The King at [52], the fact that the offence may be seen to be at “the low end of the spectrum” is to be “considered in the context of the maximum penalty of 15 years”. The respondent’s submission reflected that statement. However, the facts of Mr Vazquez’s offence are objectively less serious than the case of Phibbs v The King and the Court is dealing with a much younger man who is incarcerated far from his home and his friends and family.

Consideration of the available alternatives to imprisonment

57. Section 17A requires the sentencing court to consider all other available sentences.

58. Section 20(1)(a) of the Crimes Act 1914 provides that a court may convict a person of a federal offence and, if it thinks fit, release the person without passing sentence on them while placing the offender on a recognizance to be of good behaviour. The section provides for the imposition of other conditions and sub-ss (1A) and (1B) provide that certain conditions “must” be attached to an offender’s conditional release if the offence is a “Commonwealth child sex offence”. The mandatory conditions include probation supervision, travel restrictions and undertaking treatment and rehabilitation programs. Given the inevitability that the applicant will be deported or otherwise returned to Mexico upon the expiration of the sentence (non-parole period) for the drug offence, the mandatory conditions would serve no practical purpose. However, if an order under s 20(1)(a) is made, attention should be paid to the terms of the statute, and these mandatory conditions must attach to the recognizance.

59. Another available alternative exists under the New South Wales sentencing legislation. Section 20AB of the Crimes Act 1914 preserves (or picks up) a number of State sentencing options if those options would be available for “corresponding cases”. The list of orders or sentences in sub-s (1AA)(a) includes “(iii) a community correction order”. Section 8(1) of the Sentencing Procedure Act provides:

Instead of imposing a sentence of imprisonment on an offender, a court that has convicted a person of an offence may make a community correction order in relation to the offender.

60. Part 7 of the Sentencing Procedure Act makes provisions for the mechanics and conditions of such orders. Section 85(2) provides that the maximum term for a community correction order is 3 years and s 86 provides such an order must commence on the date it is imposed. Section 88(2) provides that a community correction order must include the following standard conditions:

(a) a condition that the offender must not commit any offence,

(b) a condition that the offender must appear before the court if called on to do so at any time during the term of the community correction order.

61. Sections 89 and 90 provide respectively for additional and further conditions. Unlike s 67, which prevents a court from imposing an intensive correction order for certain offences (including a prescribed sexual offence), there is no such prohibition in the case of a community correction order.

62. Without deciding the issue, it seems the Crimes Act 1914 does not pick up the alternative under s 10A of the Sentencing Procedure Act, that is conviction with no further penalty. That can be a useful option when an offender is sentenced to gaol for a more serious offence and there is little utility in imposing the various alternatives and forms of conditional release.

Conclusion under s 17A

63. Ultimately, having considered the alternatives, I am not satisfied that the purposes of punishment in this case require the imposition of a custodial sentence for the transmitting offence. That conclusion is based on an assessment of the objective seriousness of the transmitting offence considered against Mr Vazquez’s youth, his early plea of guilty and evidence of remorse, his insight into his offending, his efforts in gaol to this point, and his incarceration far from home. In reaching that conclusion, I have taken into account the accessing child abuse material offence but also the sentencing Judge’s statement that the offence on the s 16BA schedule had a “very minor” impact in the circumstances of the case.

64. I am not satisfied that the s 17A threshold is crossed.

65. Having considered the alternatives, I would impose a 2-year community correction order for the transmitting offence to commence on the day this judgment is handed down. Accordingly, I would proceed under s 8 of the Sentencing Procedure Act through the pathway of s 20AB of the Crimes Act 1914. This is a more sensible sentencing option in the circumstances of this case because it does not require the imposition of conditions which would have no practical effect, as would be required for conditional release under s 20(1)(a) of the Crimes Act 1914.

Re-sentencing for the drug offence and adjustment of the non-parole period and commencement date

66. On the hearing of the appeal, Mr McLachlan submitted that in exercising the sentencing discretion afresh, the Court could – or perhaps should – also revisit the sentence imposed for the drug offence. No similar submission was made in the written submissions although the possibility was left open with the broad submission that “the applicant be re-sentenced according to law.”

67. The applicant did not suggest that the sentence for the drug offence was excessive or that his Honour’s reasons were infected with error of fact or law. The entire focus of the appeal was on the sentence imposed for the transmitting offence. While it would be open to the Court to interfere with the sentence imposed for the drug offence, no substantial submission was made in writing or at the hearing of the appeal that impugned that sentence in any way.

68. A number of cases in this Court have grappled with the issue as to the circumstances in which a “full Kentwell re-sentencing” is required when the material error established on appeal is one of arithmetic or calculation, or only impacts on a discrete component of the sentence: see, for example, Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, Almaouie v R [2021] NSWCCA 274 at [25], Christian v R [2021] NSWCCA 300 at [29]-[37], Green v R [2022] NSWCCA 230 at [49]-[57] and JA v R [2024] NSWCCA 130 at [29]-[50]. There are many cases across a wide range of factual circumstances and errors.

69. In the present case, the established error is a discrete one which might be seen only to impact on the sentence imposed for the transmitting offence. However, the situation is complicated because (i) a single non-parole period was imposed for both offences and (ii) the sentencing Judge commenced the sentence for the transmitting offence (and the single non-parole period) one month before the much longer sentence for the drug offence. His Honour’s intention in partially accumulating was to add an additional month to the sentence. However, this is not a case where it is appropriate or possible to attempt to “[give] effect to the sentencing judge’s clear intention” (see Christian v R at [35]) because the non-parole period imposed (4 years) included consideration of the criminality involved in the transmitting offence. The sentence imposed for the transmitting offence was not imposed lawfully.

70. In the circumstances of this case, I would not interfere with the head sentence imposed for the drug offence. However, the non-parole period must be re-considered and the commencement date of the sentence adjusted so that it commences on the date the applicant went into custody: Crimes Act 1914, s 16E and Sentencing Procedure Act, s 47.

71. The orders I favour would confirm the (head) sentence imposed for the drug offence and reduce the non-parole period by one month (which reflects the practical increase resulting from the erroneous decision to impose a partially concurrent gaol sentence). It will also be necessary to adjust the commencement date of the sentence.

Orders

72. For those reasons, I propose the following orders:

73. Grant leave to appeal against sentence.

74. Allow the appeal.

75. Quash the sentence imposed in the District Court on 11 April 2025 and in lieu thereof:

(a) For the drug offence (sequence 6):

(i) The applicant is convicted and sentenced to imprisonment for 6 years and 3 months commencing on 10 September 2023 and expiring on 9 December 2029. (ii) There will be a non-parole period of 3 years and 11 months commencing on 10 September 2023 and expiring on 9 August 2027.

(b) For the transmitting offence (sequence 5):

(i) The applicant is convicted. (ii) Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant is sentenced to a community correction order for a period of 2 years commencing on 1 May 2026 and expiring on 30 April 2028. During the period of the order, the applicant is (1) to be of good behaviour and (2) to appear before the Court if called upon.

73. YEHIA J: I agree with Hamill J.

**********

Endnote

Criminal Code Act 1995 (Cth), s 3 and the schedule.