Criminal law - Sentencing - Criminal Code, s 204B - Using electronic communications with intent to expose child under 16 years to indecent material (one count) - Using electronic communications with intent to procure child under 16 years to engage in sexual activity (two counts) - Offender sentenced to 18 months' imprisonment suspended for 18 months on each count - Whether manifestly inadequate

Appellant resentenced to 12 months' immediate imprisonment

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Ponnusamy v The State of Western Australia [2008] WASCA 224

R v Liddington (1997) 18 WAR 394

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

Scook v The Queen [2008] WASCA 114

Skipworth v The State of Western Australia [2008] WASCA 64

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

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

The State of Western Australia v Johnson [2009] WASCA 224

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

Vagh v The State of Western Australia [2007] WASCA 17

1 OWEN JA: I have read the reasons Newnes JA intends to publish. I agree with his Honour's reasons and with the conclusion that the appeal must succeed.

2 This is a most difficult case. The appellant's mental state and other personal circumstances excite a good deal of sympathy. On the other hand, s 204B of the Criminal Code (WA) was enacted to deter people from using the internet as a means of identifying children and beginning the grooming stage for subsequent sexual offending. The essential element of the offence is using the internet with intent to procure a child to engage in sexual activity. Whether or not the offender goes on actually to engage in sexual activity is irrelevant to the instant offence. Nonetheless, the fact that in this case the appellant arranged physically to meet the 'child' (having outlined to her in explicit detail what would happen when they met) and that he carried out his part of the meeting arrangement is, in my view, a seriously aggravating feature.

3 It is difficult to accept the appellant's explanation that he arranged to meet the child so he could deter her from contacting him again. He could have achieved that end by electronic means or taken other steps voluntarily to put an end to the offending conduct. Had it not been for his attempts to meet the girl I may well have taken a different view to the appropriate disposition of this appeal.

5 NEWNES JA: On 18 September 2009, the respondent pleaded guilty in the District Court to two counts of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity (Criminal Code (WA), s 204B(2)(b)), and one count of using electronic communication with intent to expose a person believed to be under 16 years to indecent matter (s 204B(2)(b)). The maximum sentence for an offence under s 204B(2)(b) is 5 years' imprisonment.

6 On 9 November 2009, after hearing sentencing submissions the sentencing judge imposed a sentence of 18 months' imprisonment on each count, concurrent with each other, suspended for a period of 18 months. Programme and supervision requirements were imposed.

7 The State does not challenge the individual sentences or the aggregate term but contends that the sentences should not have been suspended.

8 On 9 March 2009, at 6.26 pm, the respondent engaged a police officer, who was purporting to be a 13-year-old female, in an on-line conversation on the Windows Live Messenger (MSN) chat facility. The respondent told the child persona that he was 22 years of age. During this conversation the respondent requested, and was given, the child persona's mobile telephone number and a picture of 'her'. In that conversation, the respondent commented that he was 'a bit old' for her.

9 On 10 March 2009, at 4.20 pm, the respondent made a telephone call to the child persona on the mobile telephone number he had been given. The conversation lasted for 17 minutes. The voice of the child persona clearly sounded like a child of or about the age of 13 years. During the course of the conversation the respondent discussed meeting the child persona in person and of engaging in a sexual relationship, and he provided the child persona with explicit instructions on how to masturbate using a deodorant aerosol can.

10 The first count of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity relates to an on-line communication later on 10 March 2009, between 5.30 pm and 9.19 pm, in which the respondent engaged the child persona. In the course of that on-line conversation the respondent discussed being the child persona's boyfriend and meeting the child persona in person for the purpose of sexual activity. The respondent again provided explicit instructions to the child persona on how to masturbate using a deodorant aerosol can, in the belief that the child persona was carrying out his instructions. In the course of the on-line conversation, the respondent asked the child persona to provide him with an additional photograph of herself and he activated his webcam, revealing his face.

11 At about 3.30 pm on 11 March 2009, the respondent called the child persona on the mobile telephone number he had been given. The call lasted for 29 minutes. During the conversation the respondent again gave instructions on masturbation technique and spoke about arrangements for meeting in person, being in a boyfriend/girlfriend relationship, and engaging in sexual activity with the child persona.

12 The count of using electronic communication with intent to expose a person believed to be under 16 years to indecent matter relates to an on-line conversation later on 11 March 2009, between 8.20 pm and 9.28 pm, in which the respondent engaged the child persona. In that conversation he discussed meeting the child persona for sexual activity. He discussed what they would do when they met. During the conversation the respondent activated his webcam to transmit to the child persona footage of him masturbating and exposing his penis. He told her that 'that [is] what [is] going in you'. The respondent also told the child persona that he loved her.

13 The second count of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity relates to an on-line conversation in which the respondent engaged the child persona between 3.48 pm and 4.03 pm on 13 March 2009. During this conversation the respondent confirmed meeting arrangements with the child persona and discussed the sexual activities they would engage in when they met. He asked if she 'wanted it' with or without a condom and told her that it is better without a condom the first time. The respondent arranged to meet the child persona on 16 March 2009.

14 On 16 March 2009, at about 3.55 pm, the respondent was travelling on Highpoint Boulevard in Ellenbrook with the intention of attending the meeting with the child persona when he was intercepted by police. In the course of an interview at that location, the respondent admitted communicating with the child persona on-line and claimed she had told him that she was 16 years of age. He said that the child persona had kept on bringing up sexual matters. The respondent claimed that people who knew her had told him that she was younger than 16 and he had intended to meet the child persona to tell her to leave him alone.

15 The respondent was 25 years of age at the time of offending. It appears from a pre-sentence report that he left school at age 13 and then attended a learning facility for children with difficult life circumstances. He has since had a variety of unskilled jobs, all of them of relatively short duration. He has a history of behavioural problems, principally related to his inability to control his anger. A psychological report prepared for sentencing purposes reported that the respondent presented as being of lower than average intelligence and being immature. Psychometric testing indicated that the respondent appeared to have a number of psychological problems. He was assessed as being of medium to high risk of sexual reoffending.

16 At the time of sentencing the respondent was in receipt of a disability pension. He was also engaged in some part-time work as a newspaper distributor. He was said to have recently commenced a relationship with a young woman who has two small children. At the time of the offending the respondent had been living alone but had since returned to live with his mother. His family remained supportive.

17 The sentencing judge did not review the facts of the case but commenced by stressing that the offences were very serious and that in almost every case offences of this nature would result in a term of imprisonment. Her Honour observed that the fact the respondent had a job and a supportive family was of assistance but it was not sufficient to avoid a term of imprisonment. Her Honour noted that the respondent had pleaded guilty at a very early stage.

18 The sentencing judge went on to say that she did not consider the respondent to be a good vehicle for general deterrence but to be an exceptional case. Her Honour said:

The information that I have from your family, from the pre-sentence report and the psychological assessment leads me to the conclusion that you are intellectually handicapped, that this intellectual handicap, by the look of things, doesn't fit a proper pattern that people are used to and that attempts have been made to treat you with dexamphetamine which have caused considerable violence. ... I note that even though you are now 25 and you obviously have had a very stable home life you cannot read or write, although you can obviously make yourself understood on a computer. Your mother has told the writer of the pre-sentence report that she's attempted to have you treated at Swan Mental Health but you were deemed as borderline and they would not offer any assistance. Nevertheless, you are on a disability pension. (ts 19)

19 The sentencing judge referred to results of the psychometric testing which showed the respondent to have clinically significant elevations on the schizoid, avoidant, depressive, passive aggressive, self defeating, borderline, anxiety, dysthymia and major depression scales. Her Honour noted the observation of the psychologist that the results were 'consistent with those of individuals who may be distant and asocial; may prefer to distance themselves from others to avoid being hurt; may have problems with direct communication; may experience symptoms of depression and anxiety; may place themselves in positions where they can be taken advantage of; and may have problems with emotional regulation.' Her Honour referred, too, to the psychologist's reference to the respondent's lower than average level of intelligence and his immaturity.

20 The sentencing judge also noted the psychologist's recommendation that the respondent participate in treatment to address his sexual offending behaviour and his emotional and stress management.

21 Her Honour imposed a sentence of 18 months' imprisonment on each count, concurrent with each other, suspended for 18 months, with programme and supervision requirements.

22 On 8 December 2009, Wheeler JA granted to the appellant an extension of time within which to appeal. Her Honour granted leave to appeal on ground 1 of the grounds of appeal and referred the application for leave in respect of ground 2 to the hearing of the appeal.

1. The learned sentencing judge erred in law by suspending the total term of 18 months imprisonment, which resulted in a sentence that was so inadequate as to manifest error having regard to the standards of sentencing customarily observed for offences under s 204B(2)(b) of the Criminal Code.

Particulars

The imposition of a suspended term of imprisonment:

(a) failed to adequately reflect the serious nature of the offences and the circumstances in which they were committed, in particular having regard to:

(i) the fact that the respondent transmitted images of himself masturbating to the child persona;

(ii) the age disparity between the child he believed he was dealing with (13 years) and the respondent (25 years); and

(iii) the fact that the respondent had arranged a meeting with the child persona and was travelling to that destination when arrested by police.

(b) failed to adequately reflect the need for specific and general deterrence;

(c) failed to adequately reflect the need for punishment for offending of this nature; and

(d) demonstrated undue regard for the personal circumstances of the respondent.

1. The learned sentencing judge erred in law in concluding that the learning difficulties and general psychological difficulties, in the context of offences contrary to s 204B of the Criminal Code, were factors that reduced the need for general deterrence and justified the suspension of the term of imprisonment.

24 The relevant sentencing principles have been stated on a number of occasions. It has often been pointed out that there is no single correct sentence. Sentencing involves the exercise of a discretion and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 371.

25 In determining whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive or manifestly inadequate, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

26 An appellate court may not intervene simply because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325.

27 The State contends that the sentencing judge erred in suspending the sentences.

28 The maximum sentence prescribed for each of the offences committed by the respondent is a term of 5 years' imprisonment. Standards of sentencing customarily observed in relation to offences under s 204B of the Code have been examined by this court on a number of occasions: see Collier; The State of Western Australia v Freemantle [2008] WASCA 98; The State of Western Australia v Porter [2008] WASCA 154; Speering v The State of Western Australia [2008] WASCA 266; Reid v The State of Western Australia [2009] WASCA 237. It has been repeatedly said that adults 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: Collier [43]; Freemantle [8], [40]; Porter [8], [64], Speering [11]. It has also been pointed out 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: Collier [42]; Freemantle [9], [41]; Porter [8]; Speering [11].

29 But while such an offence will ordinarily result in a term of imprisonment, it does not follow that it is unnecessary to consider whether to suspend a sentence. It is clear that the court must consider all the sentencing options and is not to impose a term of immediate imprisonment unless it is inappropriate to use another sentencing option: Sentencing Act 1995 (WA), s 39(2); Skipworth v The State of Western Australia [2008] WASCA 64. Some of the factors to be considered when deciding whether or not to suspend a sentence of imprisonment were discussed by Steytler J in R v Liddington (1997) 18 WAR 394.

30 In support of its contention that the suspension of the sentences has resulted in the sentence being manifestly inadequate, the State referred to the decisions of this court in Collier, Freemantle, Porter, Speering, and Reid, where in each case a term of immediate imprisonment was imposed.

31 In Reid, a table summarising a number of the relevant factors, and the sentences imposed, in those cases and in The State of Western Australia v Johnson [2009] WASCA 224, was annexed to the reasons. The court stressed, however, that such a table must be approached with caution as it is necessarily an incomplete description of the cases referred to. Whilst that qualification must, of course, always be borne in mind, the table is nevertheless a convenient, if somewhat rudimentary, snapshot of those cases. For that reason a copy, amended to include Reid and the same factors in the present case, is annexed to these reasons.

32 The decisions in Collier; Freemantle, Porter and Speering were analysed in detail by Buss JA in Johnson, [82] - [91] and it is unnecessary to repeat what his Honour said there.

33 It is, however, appropriate to say something about the decisions in Johnson and Reid. The decision in Johnson was relied upon by the respondent and, as I have mentioned, the decision in Reid by the State.

34 In Reid, the appellant was convicted on his own plea on four counts of using electronic communication with intent to expose a person believed to be under 13 years to indecent matter, and 10 counts of using electronic communication with intent to procure a person believed to be under 13 years to engage in sexual activity. Each of the offences carried a maximum penalty of 10 years' imprisonment, as opposed to 5 years in the present case. The appellant was 21 and 22 years of age at the time of the offending. He was sentenced to 15 months' imprisonment on each count, with three of the sentences being made cumulative and the rest concurrent, giving a total effective sentence of 3 years and 9 months, with eligibility for parole. His appeal against the total effective sentence was allowed and the appellant sentenced to a total term of 2 years and 3 months' imprisonment.

35 There are, however, some important distinctions between the circumstances of that case and the present case. In Reid, the offences occurred over a period of a little under five weeks and thereafter a period of some eight months passed until the police attended the appellant's home in connection with his communications. During that eight month period the appellant had made no further attempt to contact the child persona. In addition, at no time did the appellant make any attempt to contact the child persona by telephone or to arrange a meeting, and nor did he send any sexually explicit material.

36 In Johnson, the respondent was convicted after trial of 3 counts of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity and 7 counts of using electronic communication with intent to expose a person believed to be under 16 years to indecent matter. The respondent was sentenced to 12 months' imprisonment on each of the 3 counts (two of which were to be served cumulatively and the other concurrently with them), and on the 7 counts was sentenced to 8 months' imprisonment on each of two counts and to 6 months' imprisonment on each of the remaining 5 counts (all to be served concurrently with the earlier counts). The total effective sentence was 2 years' imprisonment, which the sentencing judge ordered be suspended for two years. The State appealed against the suspension of the head sentence. The appeal was dismissed. The court was not persuaded that in the circumstances the suspension of the effective sentence resulted in a manifestly inadequate sentence.

37 There are again significant differences between the circumstances of that case and the present case. In Johnson, the respondent (who was 26 years at the time of offending) did not attempt to arrange a telephone call or a meeting with the child persona and he did not transmit any sexually explicit material. Before he was apprehended, the respondent had voluntarily ceased communicating with the child persona and had blocked the child persona from his contact lists. The sentencing judge accepted a psychologist's assessment that the risk of sexual re-offending by the respondent was low. Despite those factors, the sentencing judge described her decision to suspend the sentences, rather than impose a term of immediate imprisonment, as 'lineball', a description with which this court agreed.

38 In my view, the overall offending in this case could fairly be described as toward the upper end of the range of seriousness. In the first place, there was a substantial age difference between the respondent and the child with whom he thought he was conversing, a difference the respondent attempted to minimise to some extent by purporting to be three years younger than he was. Secondly, the respondent transmitted sexually explicit material to the child persona by way of webcam footage of the respondent masturbating and exposing his penis. Thirdly, the respondent twice made contact with the child persona by telephone and engaged her in oral discussions of a sexual nature. Fourthly, the respondent arranged to meet the child persona for the purpose of sexual activity and was in the course of attending what he understood to be that meeting when he was apprehended. The respondent had apparently intended that they would engage in unprotected sexual intercourse.

39 While the period of contact was short, being only seven days, in that time the respondent had moved quite purposely from the initial contact through to an apparent meeting for sexual purposes with what he understood to be a sexually inexperienced and naïve 13 year old girl. The transcripts of the on-line conversations indicate throughout a clear determination on the respondent's part to bring about that end. The respondent's explanation to police that he was meeting the child persona simply to tell her to leave him alone because he had recently been told she was younger than 16 years was obviously absurd. It is apparent, however, that the respondent understood that what he was doing was wrong and illegal. Statements he made in a subsequent videotaped interview with police confirmed that he knew it was wrong and illegal.

40 In my opinion, even taking into account the matters favourable to the respondent, particularly his mental handicap, the sentence imposed was manifestly inadequate in light of the serious nature of his offending. There was no basis for any sentence but a term of immediate imprisonment.

42 In respect of ground 2, leave to appeal is required. In the course of argument, counsel for the State sought leave to amend the ground to add, in the alternative, that the sentencing judge erred in fact in the respects set out in the ground. The court reserved its decision on that application.

43 As ground 2 stands, it alleges an error of law. In my view, it is misconceived. The substance of the ground is that the sentencing judge erred in concluding that the respondent's psychological problems reduced the need for general deterrence. As it emerged in argument, the essence of the State's complaint was that the sentencing judge had misunderstood the evidence as to the respondent's psychological state and had proceeded on the basis that the respondent had a level of intellectual handicap greater than was in fact made out on the evidence. That is, it was not contended that there was no evidence of an intellectual handicap but rather that the sentencing judge had simply overstated the effect of the evidence. Such an error does not constitute an error of law.

44 If the amendment to allege an error of fact were allowed, the effect, as I understand the ground of appeal, would be to assert that the sentencing judge erred in fact by giving too much weight to the respondent's intellectual handicap and too little weight to the issue of general deterrence. I did not understand it to be asserted by the State, and I do not consider that on a fair reading of the sentencing remarks it would be open to it to contend, that the sentencing judge gave no weight at all to general deterrence.

45 But as has been pointed out on a number of occasions, a contention that too much, or too little, weight was given to a particular consideration will only give rise to appealable error where it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Vagh v The State of Western Australia [2007] WASCA 17 [47]; Scook v The Queen [2008] WASCA 114 [15]; Ponnusamy v The State of Western Australia [2008] WASCA 224 [22]. That cannot be said to be the case in this instance.

46 I would therefore refuse the application to amend the ground of appeal and would refuse leave to appeal on ground 2.

47 As the sentencing judge has been shown to have erred, it is for this court to resentence the respondent.

48 In view of the seriousness of the respondent's offending, the only appropriate sentence is a term of immediate imprisonment. I would impose a term of 12 months' immediate imprisonment on each count, to be served concurrently.

(i) refuse leave to appeal on ground 2 of the grounds of appeal;

(iii) set aside the sentences imposed by the sentencing judge;

(iv) sentence the respondent to 12 months' imprisonment on each count to be served immediately, with the sentences on counts 2 and 3 to be served concurrently with the sentence on count 1; and

[2007] WASCA 250

[2008] WASCA 98

[2008] WASCA 266

[2008] WASCA 154 *State Appeal

[2009] WASCA 224

[2009] WASCA 237

Not attempted (and blocked the child from his computer)

(Child deleted from computer contacts, child re-established contact)

(Voluntarily desisted from contact 7 months prior to arrest)