Child Abuse Material, ICOs and Commonwealth sentencing

Recently I appeared in the CCA in relation to a Crown appeal where the Respondent had been sentenced to an ICO for possessing child abuse material (CAM) contrary to s474.22A of the Criminal Code (Cth). The decision is not yet published.

Commonwealth sentencing already has enough moving parts to make a practitioner dream of being able to reach for a flow chart to simplify matters, but if you add a NSW intensive correction order, a federal CAM offence and the phrase 'corresponding cases', the apparently simple question of whether or not the offence is capable of being served by way of ICO, becomes a suprisingly technical one.

The practical warning is this - before you start preparing pages of material about rehabilitation, community safety and proposed ICO conditions, first establish the court has the power to make the order. The appropriateness of an ICO is not an argument if an ICO is unavailable.

The terms of the Crimes (Sentencing Procedure) Act 1999 (NSW) s67(1)(b) mean that an ICO is unavailable for many offences, including prescribed sexual offences. However, under the list of prescribed sexual offences, s474.22A is NOT included, therefore, if only applying this particular provision an ICO was theoretically available. This is where the Judge at first instance fell into error, because that was not the end of the consideration.

(I should also note that there is a constitutional issue that arises where State laws attempt to directly regulate the exercise of federal jurisdiction, so the validity of parts of C(SP) Act s67 is questionable)

Spoiler alert - An ICO is not an available sentencing option for an offence contrary to s474.22A of the Criminal Code (Cth).

The Crimes Act 1914 (Cth) picks up State and Territory sentencing alternatives for federal offenders. Section 20AB(1AA) expressly includes an ICO among the available types of order for Commonwealth offending.

However, Crimes Act 1914 (Cth) s20AB(1) requires, among other things, that NSW law empower a court to make that order for a State offender in 'corresponding cases'. Those two words do a great deal of work, but have not been the subject of appellate argument in NSW, nor are they defined in the legislation. The most helpful articulation of what it means was obiter in Vamadevan v The King [2024] NSWCCA 223 at par 33 'corresponding cases are cases involving an offender in the same circumstances.'

The C(SP)A s67(1)(g) specifies that an ICO must not be made for an offence 'that includes the commission of, or an intention to commit, an offence referred to in paragraphs (a)-(f).' Paragraph (b) relates to a prescribed sexual offence. A prescribed sexual offence includes an offence contrary to Crimes Act 1900 (NSW) s91H. For these purposes s91H(2) provides an equivalent state offence of possessing child abuse to the Commonwealth offence under s474.22A. Therefore a 'corresponding case' within the meaning of s20AB(1)(b) would be made out, effectively ruling out an ICO as an available sentencing option.

In short, an ICO is NOT available for CAM offending under s474.22A (leaving aside the appropriateness of such an order being imposed for offenders who possess CAM).