Bui v Director of Public Prosecutions

Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 17A(1), s 20(1)(b)

Criminal Code (Cth), s 474.17(1), s 474.25A(1), s 474.26(1), s 474.27(1)

Leave to appeal refused with respect to grounds 1 to 4.

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Cooper v The Queen [2012] VSCA 32

De Hollander v The Queen [2012] WASCA 127

Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69

DPP v Raeck (Unreported, County Court of Victoria, Judge Maidment, 12 April 2012)

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hine v The State of Western Australia [2010] WASCA 216

Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243

Phinthong v The Queen [2011] WASCA 192

R v Asplund [2010] NSWCCA 316; (2010) 216 A Crim R 48

R v Costello [2011] QCA 39

R v Fuller [2010] NSWCCA 192

R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76

R v Nahlous [2013] NSWCCA 90; (2013) 273 FLR 232

R v Poyndor [2007] NSWCCA 157; (2007) 171 A Crim R 544

R v R [2011] VCC 1327

Rampley v The Queen [2010] NSWCCA 293

Reid v The State of Western Australia [2009] WASCA 237

Rodriguez v Director of Public Prosecutions (Cth) [2013] VSCA 216

Schaper v The State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270

Speering v The State of Western Australia [2008] WASCA 266

Tector v The Queen [2008] NSWCCA 151; (2008) 186 A Crim R 133

The State of Western Australia v Freemantle [2008] WASCA 98

The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1

The State of Western Australia v Porter [2008] WASCA 154

The State of Western Australia v Rose [2010] WASCA 31

Wilson v The State of Western Australia [2010] WASCA 82

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

2 NEWNES JA: I agree with Mazza JA that an extension of time to appeal should be granted. I also agree that leave to appeal should be refused in respect of grounds 1 - 4, for the reasons his Honour gives.

3 Mazza JA has referred to the considerable difficulty he has had in relation to ground 5. I have had similar difficulty. The sentence imposed by the sentencing judge might, as Mazza JA observes, be regarded as lenient, or even very lenient. Ordinarily, offending of this nature would result in a term of immediate imprisonment. There are, however, unusual elements in this case, particularly having regard to the appellant's age, immaturity and mental condition at the time of the offences. Although it is a close-run thing, in the end I am not persuaded, for the reasons Mazza JA has expressed, that the sentencing judge erred in imposing the sentence he did. Accordingly, I would dismiss ground 5. The appeal should be dismissed.

4 MAZZA JA: This is a Commonwealth Crown appeal against sentence. The appeal was filed three days out of time. The delay has been explained and the application for an extension of time has not been opposed. I would grant the required extension.

5 On 9 November 2012, the respondent pleaded guilty to five counts of being a person who was at least 18 years of age who engaged in sexual activity with a child under the age of 16 years, using a carriage service (the internet) contrary to s 474.25A(1) of the Criminal Code (Cth) and four counts of using a carriage service (the internet) in such a way that reasonable persons would regard as being menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth). The maximum penalty for an offence under s 474.25A(1) is 15 years' imprisonment and for an offence under s 474.17(1) is 3 years' imprisonment.

6 On 16 November 2012, the respondent was sentenced to a total effective sentence of 3 years 6 months' imprisonment to be released forthwith, upon entering into a recognizance in the sum of $500 to be of good behaviour for 3 years pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). As a condition of his recognizance, he was also made subject to an 18 month intensive supervision order and ordered to perform 100 hours of unpaid community work.

7 The grounds of appeal relied upon, without particulars, are as follows:

Ground 1

The learned sentencing judge erred in fact in finding that the respondent's maturity was somewhere close to the age of his victims, and that he gravitated towards 14-15 year old girls because he felt most comfortable with that age bracket.

Ground 2

The learned sentencing judge erred in fact in finding that any sentence or order imposed on the respondent would deter him from reoffending.

Ground 3

The learned sentencing judge erred in fact in finding that the respondent had excellent prospects of rehabilitation and was unlikely to reoffend.

Ground 4

The learned sentencing judge erred in law in taking into account his Honour's 'grave concerns' as to the respondent's well-being if the immediate term of imprisonment was required to be served.

Ground 5

The learned sentencing judge erred in law by releasing the respondent forthwith, as that order was manifestly inadequate in the circumstances.

8 Leave to appeal has been granted on ground 5. The question of leave to appeal in respect of grounds 1 to 4 was referred to the hearing of the appeal.

9 The appellant does not quarrel with either the length of the individual sentences of imprisonment that were imposed or the length of the total effective sentence. The appeal is focused on the order that the respondent be immediately released. It is the appellant's submission that the respondent should have been ordered to serve some of the sentence on a full-time basis.

10 The respondent offended against five girls aged between 13 and 15 years over a period commencing in April 2010 and ending in October 2011. During this period, the respondent was aged between 19 and 21 years.

11 The facts as found by his Honour are as follows. Counts 1 and 3 concern a 14-year-old child, K, who resided in the United States of America. Between approximately 1 June 2010 and 22 January 2011, the respondent engaged in regular live video 'chats' with K. He persuaded her to remove her clothes and masturbate, including inserting a hairbrush into her vagina. This sexual activity was transmitted to the respondent via video-link. At the same time, he was masturbating in front of a webcam so that K could see what he was doing. She observed him ejaculate.

12 K felt pressured and threatened by the respondent. The respondent told her that if she did not continue her behaviour, he would hack into her computer and start telling people what she had been doing. K deleted the respondent from her social network sites, but the respondent was able to contact her through an instant messaging site. He told her that he had videoed her masturbating. He then coerced her to expose her breasts.

13 In December 2010, the respondent contacted K's mother, using a false name, and told K's mother that he had a video of her daughter engaging in sexual activity on the internet. K's mother reported what had occurred to the authorities in the United States, who in turn contacted the Australian Federal Police.

14 Counts 2 and 4 concern L, a girl the respondent believed to be 15 years of age and who lived in the United States. The respondent and L communicated via Skype. The respondent encouraged L to suck her fingers while he masturbated. At one point, L lifted her shirt and exposed her bra. A video of the incident was recorded by a third person, who subsequently uploaded it to the internet. An organisation which monitors particular websites reported the matter to the authorities.

15 Further inquiries revealed that the respondent had made two audio-files which were uploaded onto YouTube. One of those audio-files was a recording of the respondent making admissions that he had blackmailed girls who had 'blocked' him on the internet. The second audio-file contained a threat made by the respondent to L that he would release photographs and video footage of her.

16 Counts 5 and 8 concerned B, a 14-year-old girl who resided in Victoria. Initially, the respondent communicated with her using a different name, Steve. He recorded B naked. In September 2011, he contacted B again, this time using his true name, and said, 'Hi. If you add me, there is a video of you on a website that I can get rid of for you.'

17 B began communicating with the respondent. The respondent asked her to take her clothes off. When B refused to do so, he threatened to upload the video he had recorded earlier onto his Facebook page and contact B's school and friends. He also threatened to contact her mother.

18 Between September and October 2011, he coerced B to engage in sexual activities, such as removing her clothing and masturbating. This she did under threat. B subsequently told her mother, and the Victorian police were contacted.

19 Counts 6 and 7 concern LW, a 13-year-old girl who lived in New South Wales. In April 2010, the respondent started communicating with LW via the internet. LW indicated that she was 16 years of age. At the respondent's request, LW exposed her breasts and vagina to the respondent via video-link. She later told the respondent that she was 14 years of age. The respondent responded that he already knew her age.

20 LW eventually refused to expose herself further. The respondent threatened her by stating he had photographs and video footage of her and would send it to her parents. As a result, LW was coerced into performing numerous sexual acts, including masturbation and inserting various objects into her vagina. While she did so, the respondent masturbated. LW repeatedly objected to what was occurring. In August 2010, she stopped communicating with the respondent. Subsequently, the conduct was drawn to the attention of the New South Wales police.

21 Count 9 concerns a 14-year-old girl named T who lived in the United States. T and the respondent communicated via the internet using video-link. Sometime between January 2010 and October 2010, both of them engaged in masturbation via video-link.

22 The respondent was interviewed by the Australian Federal Police on 1 March 2012. The interview is lengthy, and aspects of it will be referred to later in these reasons. His Honour found that the respondent cooperated with the police and substantially admitted his conduct (ts 42). His Honour rejected as 'bizarre' the respondent's professed justification for his offending behaviour that he was acting, in respect of each complainant, as a 'white knight'.

23 The police seized the respondent's computer equipment. An examination of it showed that the respondent did not possess any offensive material or child pornography.

24 His Honour was provided with victim impact statements written for or on behalf of K, B and LW. In K's case, the respondent's offending conduct intensified her pre-existing post-traumatic stress disorder, anxiety and depression. In B's case, she became withdrawn over a period of months and stopped eating and sleeping properly. Her self-confidence has been damaged and her school performance has deteriorated. LW has also experienced trouble sleeping and has found it difficult to trust her friends and to make new friends.

25 The respondent was 22 years of age when he was sentenced. It is common ground that he is immature for his age, although the extent of that immaturity is in issue in this appeal.

26 The respondent grew up in a caring and supportive family environment. That care and support remain in place. He was educated to year 12. At school he was bullied, but felt powerless to do anything about it. After completing his schooling he found employment as a plant operator. In 2007, he was 'cyber bullied'. In behaviour very similar to that perpetrated upon the victims in this case, the respondent, using a social webcamming site, was persuaded to expose himself, masturbate and insert objects into his anus. This material was able to be accessed using the internet, and he was bullied by some who viewed it. This conduct caused the respondent distress and humiliation. He developed suicidal thoughts.

27 The respondent lost his job, began drinking alcohol excessively and withdrew into his bedroom, spending many hours per day on the internet. He engaged in online sexual conduct with at least one adult in addition to the child victims in this case.

28 In November 2008, the respondent was diagnosed by his general practitioner with severe depression and anxiety and was prescribed antidepressant medication. It is not in issue that during the offending period he remained depressed and anxious.

29 In October 2011, his offending ceased. It is not possible, on the evidence before the learned sentencing judge, to know why.

30 After his arrest and before sentencing, the respondent undertook counselling, including counselling with respect to his alcohol consumption. He reduced his alcohol consumption and obtained casual employment. His general practitioner noticed an improvement in his depression. At the time of sentencing, the respondent was living at home with his parents.

31 The respondent has no prior record of convictions. He spent no time in custody before being sentenced.

32 At about 7.15 am on 1 March 2012, six Federal and State police officers, including two forensic officers, executed a search warrant at the respondent's parents' house, where he was residing. At about 7.35 am, the police commenced interviewing the respondent. The search and interview continued, with some breaks, until after midday. A viewing of the video record of interview confirms that the respondent substantially admitted his offending behaviour and cooperated with the police. During the course of the interview, two audio recordings of conversations the respondent had with L were played to the respondent. L's distress when informed that the respondent was going to show people some pictures of what she had done over the internet is obvious.

33 The respondent explained to the police what he meant by 'white knighting'. He said that he did not like what the victims were doing. Accordingly, in order to get them to stop, he told them he was sharing the images. Alternatively, he told the victim's parents what they were doing (AB 177).

34 The respondent acknowledged from his own experience how distressed the victims would have been as a result of his conduct. He said he knew that sexual activity with children was illegal.

35 He told the police how he had himself been a victim of cyber bullying. He explained that it rendered him powerless and he felt that his manhood had been taken away from him and that he 'just wanted to get [it] back' (AB 162). Later he said he 'was in a deep place where [he] just didn't have feelings' (AB 177).

36 His Honour was provided with a pre-sentence report dated 10 September 2012 and two psychological reports: one by Dr Leonie Coxon, the other by Ms Erin Sweeny, dated 13 July 2012 and 22 October 2012 respectively. Dr Coxon's report was commissioned by the respondent's solicitors. Ms Sweeny's report was prepared as a consequence of the pre-sentence report author expressing difficulty in assessing the respondent's risk of reoffending without an expert psychological opinion. Neither expert viewed a recording of the respondent's interview with the police.

37 In his interviews with the psychologists, the respondent proffered the 'white knight' explanation which his Honour subsequently rejected. Although Ms Sweeny did not accept this explanation, Dr Coxon did, stating that the respondent's actions were 'misguidedly' motivated by this consideration. While, to some extent, this affects the validity of Dr Coxon's conclusions, it does not affect the validity of the psychometric testing she administered upon the respondent.

38 Dr Coxon summarised the result of that testing as follows:

An assessment of [the respondent's] emotional state revealed high anxiety, moderately high stress and severe depressive symptoms.

A personality profile indicated some clinical elevations on the depression scale, the anxiety related traumatic stress scale and the alcohol abuse scale, which was highly elevated.

There was also an elevation on the resentment scale, related to an event from the past which caused feelings of being insulted by others. There may also be some difficulties with concentration and attention.

Treatment scales revealed high suicidal ideation which could be seen as a cry for help. Acknowledgment of his problems was very prominent which is a positive sign of good treatment outcomes.

An assessment of his risk of reoffending in the future was considered to be low, particularly if he were to undergo treatment.

39 The reference to treatment scales revealing high suicidal ideation requires comment. Earlier in the report, Dr Coxon referred to the respondent's scale score indicating moderate suicidal ideation. This apparent contradiction was not resolved in the sentencing proceedings.

40 Senior counsel for the appellant sought to challenge some aspects of Dr Coxon's report. The challenges that she made were not made before the learned sentencing judge. In my opinion, it would now be unfair for the appellant to take these points, particularly where it is far from obvious to me that the objections now sought to be made are valid.

41 Psychometric testing administered by Ms Sweeny indicated elevations on anxiety scales. Ms Sweeny said individuals with such elevations tend to have defective interpersonal skills and a tendency to distance themselves from others. She noted that the respondent's psychological profile suggests someone who can be aggrieved and place themselves in situations where they become victims and, as such, become absorbed in their own suffering, not noticing or appreciating the suffering of others. Ms Sweeny identified treatment strategies appropriate for the respondent. She observed that some of those strategies had already been implemented.

42 Ms Sweeny hypothesised that the respondent's offending occurred because he 'struggled to find acceptance amongst same aged peers and sought out contacts with younger females'. She further hypothesised that the respondent 'found the internet and young females more accepting and easier to engage and as a result, when coupled with alcohol, behaved in a sexually inappropriate manner'. Ms Sweeny noted that the respondent gave no indication that he had a sexual interest in children. She said that, in her opinion, it was more likely that he engaged with younger females because of his immaturity and inadequacies around aged related peers.

43 Ms Sweeny said that the respondent 'presented as someone who would comply with any conditions placed upon him by the court'. She also noted that the respondent had 'already developed a strong, positive relationship with his treating psychologist'.

[The respondent] is before the courts facing charges relating to engaging young females in sexual behaviour over the internet. He presented as socially naïve and immature for his age and reported a history of being bullied by others. His offending behaviour was the result of his withdrawal and isolation from the world and his excessive use of social media sites on the internet. His immaturity led him to be further bullied by others on the internet and seek out 'friendships' with younger females. Despite his stated intent to help the victims, [the respondent] engaged in sexually [exploitative] behaviour of them. He claimed an increased awareness of the dangers of on-line behaviour and has since undergone therapy in relation to both alcohol use and his general psychological functioning to manage anxiety and depression. Ongoing therapy is encouraged to address inadequacies in interpersonal relationships, improve assertive skills, increase self-esteem and manage negative emotions.

45 Some of his Honour's factual findings are challenged in this appeal. I will return to these shortly.

46 I will begin by describing what is not challenged.

47 His Honour characterised the respondent's offending as very serious. This characterisation is appropriate having regard to the ages of the victims, the nature of the sexual activity they engaged in and the length of time over which the offending took place. He found that the respondent had involved each victim in sexual activity for his own gratification. He observed that all the respondent's victims would have been humiliated, sexually corrupted and greatly traumatised by what the respondent had done. His Honour made express reference to the victim impact statements. He had regard to the respondent's threatening and coercive behaviour. His Honour made appropriate reference to the need to provide general deterrence.

48 His Honour took into account the respondent's cooperation with the police and his pleas of guilty which were entered at the first opportunity. He acknowledged the respondent's young age and that he had the support of his family. His Honour found that the episode of cyber bullying led to the respondent suffering from depression and problematic consumption of alcohol. He said:

I conclude [that the respondent's] experiences created an attitude of disregard for others and a warped desire to pursue sexual activities on the internet and a willingness to engage in similar cyber bullying to that which [the respondent] had experienced (ts 41).

49 His Honour accepted that the respondent's offending behaviour 'was the result of [the respondent's] mental state following the cyber bullying that [he] had experienced which led [him] to be withdrawn and isolated from the world' (ts 44).

50 His Honour found that the respondent's comprehension of the inappropriateness of his conduct 'was very much reduced by [his] immaturity and ... mental state' (ts 44).

51 His Honour also took into account the respondent's 'high state of anxiety, moderately high stress and severe depression' (ts 44).

52 His Honour made the following findings, favourable to the respondent, which the appellant now challenges:

(a) that the respondent's maturity was somewhere close to the age of his victims and that he gravitated to girls aged 14 or 15 because he felt most comfortable with that age bracket (ts 43) (ground 1);

(b) whatever penalty his Honour imposed, it would deter the respondent from reoffending (ts 44) (ground 2); and

(c) the respondent had excellent prospects of rehabilitation and was unlikely to reoffend (ts 44) (ground 3).

53 His Honour expressed 'grave concerns' as to the respondent's wellbeing, both mentally and physically, if an immediate term of imprisonment was imposed upon him (ts 45). The appellant alleges that there was insufficient basis in fact for these concerns (ground 4).

54 These grounds allege that the learned sentencing judge made three specific errors in his fact finding.

55 The appellant concedes that the respondent was socially naïve and immature for his age, but attacks his Honour's finding that the respondent's maturity was somewhere close to the age of his victims. The appellant also attacks the related finding that the respondent gravitated towards 14 - 15-year-old girls because he felt most comfortable with that age bracket.

56 All of the reports before his Honour remarked on the respondent's immaturity. A consideration of his Honour's sentencing remarks as a whole reveals that his Honour took into account not just the reports, but his observations of the respondent in court and how the respondent appeared in the video record of interview with the police.

57 Because the learned sentencing judge was able to see the respondent for himself during the sentencing proceedings, he was in a better position than this court to make the judgment that the respondent's maturity was somewhere close to the age of his victims. I have viewed the video record of interview. It gives the impression that the respondent is a very immature individual. I do not accept the appellant's submission that the respondent appears no different to an immature man of his age.

58 His Honour is a very experienced criminal judge who has, no doubt, over the years sentenced many young offenders. His view of the respondent's maturity, having regard to all of the material before him, including his own observations, must be respected. In my opinion, it was open to his Honour to arrive at the conclusion that he did about the respondent's immaturity. I am not persuaded that his Honour's finding was wrong.

59 I do not accept the appellant's submission that his Honour erred in stating that the respondent felt most comfortable with girls in the age bracket of 14 to 15 years of age. Although, as the appellant pointed out in argument, it is apparent from the video record of interview that the respondent had engaged in on-line sexual behaviour with girls over the age of 18 years, it does not follow that his Honour's finding as to the age group the respondent felt most comfortable with was wrong. It was open to his Honour to find that the respondent felt most comfortable with girls within that age bracket. I am not satisfied that his Honour erred as alleged.

60 For these reasons, ground 1 is without merit. I would not grant leave to appeal in respect of it.

61 It is convenient to deal with these grounds together. They concern his Honour's finding that, in effect, personal deterrence was not a matter of significance in this case.

62 The findings the subject of grounds 2 and 3 were made in the following passage of his Honour's sentencing remarks:

Although [the respondent] made some acknowledgement in [his] interview that [he] understood that what [he was] doing was wrong, I find that [his] comprehension of the inappropriateness of [his] conduct was very much reduced by [his] immaturity and [his] mental state. I also take into account the deterrent effect of any sentence that I impose upon [him]. I am satisfied that [the respondent] being charged with these matters, [he has] come to understand the seriousness of [his] conduct. In whatever penalty I impose it will deter [him] from reoffending [(ground 2)]. I also take into account the prospects of rehabilitation.

Dr Leonie Coxon in her report dated 13 July 2012 suggests that [the respondent is] a low risk of reoffending, particularly if [he undergoes] treatment. Both Dr Coxon and Ms Sweeny recommend ongoing counselling for [the respondent] due to [his] vulnerable state. I am satisfied that with counselling [his] prospects of rehabilitation are excellent and [he is] unlikely to reoffend [(ground 3)]. [The respondent] has a good supporting environment from [his] family (ts 44). (emphasis added)

63 The appellant submitted that the expert reports showed that the respondent did not appreciate the seriousness of his offending. In these circumstances, it was submitted, it could not be said that the respondent had excellent prospects of rehabilitation and was unlikely to reoffend. The appellant also submitted that his Honour erred by finding, in effect, that any penalty he imposed would deter the respondent from reoffending.

64 I do not accept the submission that his Honour's sentencing remarks should be construed to mean that he was of the view that any penalty would deter the respondent from reoffending. The sentence impugned by ground 2, commencing with the words, 'In whatever penalty I impose', must be seen in the light that shortly after he made the comment, his Honour announced that he was imposing a term of imprisonment, but that the respondent would be released forthwith. In context, 'In whatever penalty I impose' referred to the choice between immediate imprisonment, or imprisonment with release forthwith on a recognizance. When viewed in that light, it can be seen that his Honour is, in substance, saying that whatever penalty of imprisonment he imposed, it would deter the respondent.

65 It is patent that his Honour regarded the respondent's prospects of rehabilitation as being favourable and his risk of reoffending as low. In my opinion, those conclusions were open to his Honour on the evidence before him. The conclusions were arrived at on the premise that the respondent would continue 'with counselling'. His Honour had before him a young, first offender who, due to his immaturity and mental state, did not have a full appreciation of the seriousness of what he had done. Despite this, both psychologists were of the view that the respondent could be rehabilitated by counselling and other psychological interventions. Both referred to the treatment that had already begun. Ms Sweeny noted that the respondent had developed a strong, positive relationship with his treating psychologist. Dr Coxon noted that the respondent acknowledged his problems. She regarded this as a positive sign for a good treatment outcome. Ms Sweeny noted that the respondent presented as someone who would comply with any conditions placed upon him by the court. Both experts, in substance, expressed optimism as to the respondent's prospects of rehabilitation.

66 His Honour also considered that the respondent, a young, immature and vulnerable man, would be deterred to some extent from further offending by exposure to and participation in the criminal justice process itself. It will not always be the case that a sentencer can draw such a conclusion. But, in this case, having regard to the respondent's psychological make-up, it was not inappropriate for his Honour to give some weight to this factor.

67 In my opinion, neither ground 2 nor ground 3 has been made out. I would not give leave to appeal in respect of them.

68 His Honour expressed 'grave concerns' as to the respondent's mental and physical wellbeing in the event that he was sentenced to an immediate term of imprisonment.

69 It is submitted on behalf of the appellant that concerns about the respondent's welfare were unfounded and were, in any event, an insignificant factor in favour of immediate release.

70 The unchallenged evidence was that the respondent suffered from anxiety, stress and severe depression. In addition, he was a young man who had never been to prison before and was naïve and immature. There was evidence of suicidal ideation, indeed, there was evidence of at least one attempt by the respondent on his life. His Honour adopted Dr Coxon's finding that the respondent had revealed high suicidal ideation. As I have mentioned, the evidence from Dr Coxon as to the respondent's risk of suicide was inconsistent. She noted at least a moderately elevated score in his treatment scales on suicidal ideation. Dr Coxon equated the respondent's suicidal ideation with a cry for help. Ms Sweeny noted that the respondent had put in place strategies to deal with suicidal thoughts.

71 However, I do not think that his Honour's 'grave concerns' for the respondent's wellbeing simply referred to his risk of suicide. Rather, his Honour's grave concerns reflect the combination of factors referred to above and not just the risk of suicide.

72 It is plainly the case that the subjective impact of a sentence of imprisonment on an offender, especially a young offender who has not previously been imprisoned or held in detention, is a relevant matter to be taken into account. The weight that can be given to this factor will vary from case to case. There are cases where immediate imprisonment must be ordered despite the negative subjective impact the sentence will have upon the offender.

73 Having regard to the combination of the relevant subjective factors in this case, I have not been persuaded that his Honour erred in expressing grave concerns for the respondent's welfare should he be sentenced to an immediate term of imprisonment and taking those concerns into account as a relevant factor in deciding to release the respondent forthwith.

74 Ground 4 has not been made out. I would not give leave to appeal in respect of it.

75 The fundamental submission of the appellant is that the learned sentencing judge erred in releasing the respondent forthwith. It is submitted that, given the serious nature of the offences, the number of victims, the ongoing course of conduct, and the threats of force used to ensure compliance with the respondent's demands, to order the release of the respondent forthwith did not reflect the severity of the offences, the need to adequately punish the respondent or the need to deter others.

76 This court is not entitled to intervene simply because it would have imposed a difference sentence if it had been sitting at first instance or because the result arrived at below is markedly different from sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [58] (Gaudron, Gummow & Hayne JJ).

77 Ground 5 is an allegation of implied error. What is required is that the appellant demonstrates that the decision to release the respondent forthwith was plainly unreasonable or unjust: Wilson v The State of Western Australia [2010] WASCA 82 [2].

78 The relevant statutory provisions to be applied when sentencing Federal offenders are contained in pt 1B of the Crimes Act. The general sentencing principles are contained in div 2 of pt 1B of the Crimes Act. Section 16A(1) provides that a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case. Section 16A(2) lists the matters, when relevant and known, that a court must take into account in sentencing a Federal offender. The list is not exhaustive. For example, it does not refer to matters such as general deterrence or common law sentencing principles such as totality. These are accommodated by the expression in s 16A(1), 'of a severity appropriate in all the circumstances of the offence' and by the expression in s 16A(2)(k), 'the need to ensure that the person is adequately punished for the offence': Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [25] and Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18]. Section 17A(1) provides that a sentence of imprisonment must not be imposed for a Federal offence unless no other sentence is appropriate.

79 Section 20(1)(b) empowers a court that imposes a term of imprisonment upon an offender to order that the offender be released forthwith or after having served a specific period of imprisonment upon conditions. Such an order is analogous to a suspended sentence. The principles with respect to such orders are well known and were referred to by this court in De Hollander v The Queen [2012] WASCA 127.

80 In Hili, the majority emphasised the importance of systematic fairness and consistency in Federal sentencing. The consistency spoken of by the majority is 'consistency in the application of the relevant legal principles' [47] - [49]. In other words, there must be consistency in the application of the principles contained in pt 1B of the Crimes Act. As the majority explained in Hili, consistency in Federal sentencing is to be achieved through the work of intermediate courts of appeal: [56].

81 Section 474.17(1) of the Criminal Code was inserted by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004.

82 Section 474.25A was inserted by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010. This section was inserted to reflect 'changes in technology (that mean) offenders can commit sexual offences against children without meeting up in "real life"' (Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 58). To date, there have been no sentencing cases decided at intermediate appellate level with respect to offences contrary to s 474.25A(1).

83 Given the absence of cases decided at intermediate appellate level with respect to s 474.25A(1), the appellant, in the proceedings before his Honour, cited two first instance decisions (AB 97 - 101). I refer to them, acknowledging that they are of limited value. The first, DPP v Raeck (Unreported, County Court of Victoria, Judge Maidment, 12 April 2012), involved an offender convicted after an early plea of guilty of, amongst other things, three offences contrary to s 474.25A(1). The offender was a police officer at the time of committing the offences, which were described as being towards the low end of the scale. He was sentenced to individual terms of 27, 27 and 33 months respectively, to be served concurrently. He was ordered to be released on the giving of a recognizance after 8 months. The second case, R v R [2011] VCC 1327 is, in some respects, similar to the present case. There the offender was 18 years of age, had been bullied remorselessly at school and was described as sexually naïve. He pleaded guilty to three offences contrary to s 474.25A(1) and one offence contrary to s 474.19(1). The offender posed as a 15-year-old girl and procured young boys of 12 and 13 years of age to masturbate on a webcam. In one instance, he threatened to post a video of the victim masturbating on Facebook. The offender, unlike the present respondent, was also found to be in possession of a considerable quantity of child pornography. He was sentenced to a total term of 30 months' imprisonment in respect of the s 474.25A(1) offences, to be released forthwith upon giving a recognizance pursuant to s 20(1)(b) of the Crimes Act.

84 There have been a number of decisions decided by intermediate courts of appeal around Australia with respect to the analogous offences contained in s 474.26(1) (using a carriage service to procure persons under the age of 16 years to engage in sexual activity) and s 474.27(1) (using a carriage service to groom persons under the age of 16 years to engage in sexual activity). The maximum penalty for these offences is 15 years' imprisonment and 12 years' imprisonment, respectively. The cases that I have examined are R v Nahlous [2013] NSWCCA 90; (2013) 273 FLR 232; Cooper v The Queen [2012] VSCA 32; R v Costello [2011] QCA 39; R v Asplund [2010] NSWCCA 316; (2010) 216 A Crim R 48; Rampley v The Queen [2010] NSWCCA 293; R v Fuller [2010] NSWCCA 192; Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243; Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69; R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76; Tector v The Queen [2008] NSWCCA 151; (2008) 186 A Crim R 133 and R v Poyndor [2007] NSWCCA 157; (2007) 171 A Crim R 544.

85 It is unnecessary to canvass the facts in each and every one of these cases. It is clear that immediate imprisonment is the norm for this type of offending. Although, it must be said that the personal circumstances of the respondent in this case, particularly having regard to his age, are not replicated in any of the cases to which I have referred. Of the cases I just mentioned, in only two were non-immediate custodial sentences imposed: R v Nahlous and Director of Public Prosecutions v Hizhnikov.

86 In R v Poyndor, the appellant pleaded guilty to two offences contrary to s 474.26 and asked the sentencing judge to take into account two offences under s 474.17. He was, at the time of committing the offences, 50 years of age. He was a solicitor. He was sentenced to a total effective sentence of 3 years' imprisonment, to be released on recognizance after serving 1 year 3 months. A Crown appeal against that sentence failed. Rothman J, in his reasons, described the legislative intention behind s 474.26 in these terms:

The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in the abuse of children. The fact, if it be the fact, that the perpetrator is not intending to act on her/his statements, because she/he is indulging in a fantasy, may be relevant to sentence, but is not the most relevant feature.

The legislature, with this provision, is seeking to implement society's abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the 'grooming' of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging, the conduct has a significant deleterious impact upon any child participating in it [95] - [96].

87 In my opinion, these considerations generally reflect the legislative purpose behind s 474.25A.

88 The appellant drew this court's attention to a number of sentencing decisions in this State concerning s 204B(2) of the Criminal Code (WA) which prohibits an adult from using electronic communication with intent to procure a person who is under the age of 16 years, or who the offender believes is under the age of 16 years, to engage in sexual activity, or expose such a person to any indecent matter. This offence carries a maximum penalty of 5 years' imprisonment. Section 204B(2) of the Criminal Code (WA) is an analogue to s 474.26 of the Criminal Code (Cth). I have had regard to such cases as Hine v The State of Western Australia [2010] WASCA 216; Schaper v The State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270; The State of Western Australia v Rose [2010] WASCA 31; Reid v The State of Western Australia [2009] WASCA 237; The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1; Speering v The State of Western Australia [2008] WASCA 266; The State of Western Australia v Porter [2008] WASCA 154 and The State of Western Australia v Freemantle [2008] WASCA 98.

89 In Speering, Steytler P (with whom McLure JA agreed) said:

This court has repeatedly said that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment and that, as with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse. The court has also repeatedly said that, in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender. Of course, what was said in these respects does not absolve a court from considering whether a suspended sentence is appropriate. The cases to which I have referred merely set out what, in the experience of the court, might ordinarily be anticipated to follow from offending of this kind [11]. (citations omitted)

90 I consider this statement to be apposite, by analogy, to offences under s 474.25A.

91 I have also had regard to sentencing cases decided in this State and under Federal law relating to the possession of child pornography or importing child pornography. Although they are different in nature to the offences committed by the appellant here, they are, to some extent, analogous. The sentencing principles with respect to these offences are not in any doubt. Ordinarily, a sentence of immediate imprisonment is imposed in order to protect the children who are exploited in the production of this material. The paramount sentencing consideration is general deterrence: Phinthong v The Queen [2011] WASCA 192 [24].

92 The overarching sentencing principle for Federal offences is that set out in s 16A(1) of the Crimes Act. That principle applies not just to the head sentence, but to any order that is made, including any order made under s 20(1)(b) of the Crimes Act. The general principles which apply in determining whether a person who has been sentenced to a term of imprisonment for a federal offence should be released under s 20(1)(b), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence, are referred to in De Hollander [80] - [83]. Having regard to the sentencing principles which have been applied in respect of offending analogous to s 474.25A(1) of the Criminal Code, the paramount sentencing consideration is general deterrence. The purpose of s 474.25A and other analogous offences is the protection of children from exploitation and abuse. This principle underpins sentencing for all offences involving the sexual abuse of children. The use of the internet and web-cameras enables offenders to induce children to engage in harmful and inappropriate sexual activity despite the fact that the offender is a long way, perhaps across the world, from his or her victim. In my opinion, as a matter of fact, such offending would, ordinarily, as a matter of fact, be met with an immediate term of imprisonment. However, each case must ultimately be decided on its own facts.

93 In respect of sentences imposed in other cases concerning s 474.17 of the Criminal Code, I have considered the recent decision of Rodriguez v Director of Public Prosecutions (Cth) [2013] VSCA 216 and the summary of cases annexed to that decision. The facts and outcomes of those cases vary considerably. No clear range of sentences emerges from them.

94 The present case posed considerable difficulty. I unreservedly accept that the offending was very serious, involving as it did the respondent inducing multiple child complainants to engage in sexual activity. It is plainly aggravating that he did so over a period of time and by the use of threatening behaviour.

95 Against this was a combination of unusual and compelling subjective considerations which cannot be ignored or downplayed. The respondent was a young first offender. He cooperated with the police and pleaded guilty at the first opportunity. He was, at the time of the offending, suffering from severe depression, anxiety and stress, brought on, in large part, by being cyber-bullied himself. The learned sentencing judge found that the respondent's mental state contributed to the offending. The respondent's maturity was somewhere close to the age of his victims.

96 It is clear that the respondent has a number of psychological issues which can be resolved by counselling and other measures. At the time of sentencing, the respondent had begun the rehabilitative process. The expert evidence was that he would be compliant and that his risk of reoffending was low, provided he continued his engagement with counselling and other rehabilitative programs.

97 For my part, because of the seriousness of the offending and the need for general deterrence, if I had sentenced the respondent at first instance I would probably have ordered him to serve some of the sentence in prison. His Honour's decision to release the respondent immediately was a lenient, some would say a very lenient, disposition. However, I have not been persuaded that his Honour's decision was erroneous, particularly having regard to the respondent's age, immaturity, naivety and mental state at the time he committed the offences. These factors very much reduced the respondent's appreciation of the inappropriateness of what he had done and diminished his culpability. His Honour's order, which included supervision and community work, was carefully crafted to the respondent's particular circumstances. If the respondent fails to comply with the order, he faces the consequence that he will be imprisoned. Finally and in any event, it is relevant, in deciding whether this court should intervene, that the appellant not only requires an extension of time to appeal, but also that the appeal was not heard until about seven months after the respondent commenced serving the sentence imposed by his Honour. The appellant did not, as it should have done, apply, upon filing its appeal notice, for an urgent appeal order. This procedure is followed, as a matter of routine, by the State Director of Public Prosecutions.

99 None of the grounds of appeal have been established. The appeal must be dismissed.

1. An extension of time to appeal is granted.
2. Leave to appeal is refused with respect to grounds 1 to 4.
3. The appeal is dismissed.