1. The appellant, Bryan William Cooper, pleaded guilty to four charges of using a carriage service to access or transmit child pornography (charges 1, 2, 5 and 7), two charges of using a carriage service with the intent of procuring sexual activity with a person under 16 years (charges 3 and 4) and two charges of using a carriage service to groom a person under 16 years (charges 8 and 9). All of these offences were committed in contravention of the Criminal Code Act 1995 (Cth) ('Criminal Code'). The appellant also pleaded guilty to the offence of knowingly possessing child pornography (charge 6), contrary to s 70 of the Crimes Act 1958 (Vic).

2. The maximum sentences for those offences, the individual sentences imposed and the orders made by the learned sentencing judge are set out below:

Using a carriage service to access child pornography

Downloaded 27 image files and 25 video files of child pornography material.

Using a carriage service to transmit child pornography

Transmission of 18 text descriptions of sexual activities and 3 images of sexual nature.

Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity

During an online chat, asked 15 year old boy 3 times to masturbate in front of his webcam, for accused to view from his computer. The boy complied.

Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity

During an online chat, asked 14 year old boy to masturbate in front of his webcam, for the accused to view from his computer. The boy complied.

Using a carriage service to cause to transmit child pornography

Engaged in 3 online chats, in which he asked for videos or images of child pornography to be sent to him from separate recipients.

27 images and 25 videos of child pornography material on computer.

Using a carriage service to transmit child pornography

During online chat, sent two child pornography images via email.

Using a carriage service to groom a person under 16 years of age

During online chat, asked child if they masturbated, and discussed masturbation.

Using a carriage service to groom a person under 16 years of age

During online chat, asked child if they masturbated, and discussed masturbation.

3. This amounted to a total effective sentence of 7 years' imprisonment. The learned trial judge directed that the appellant serve a non-parole period of 5 years.

4. On 12 August 2011, Nettle JA granted the appellant leave to appeal against his sentence on the ground that the sentences imposed on charges 3, 4, 8 and 9 are manifestly excessive.

5. The facts giving rise to the offences are comprehensively set out in Nettle JA's leave reasons as follows:

1. On 25 November 2009 the Australian Federal Police ('AFP') executed a search warrant at premises in which the applicant lived at 19 Spring Street Maryborough Victoria. The applicant was present.
2. During the search, the AFP found various items of computer equipment in the applicant's bedroom including a PC tower with an attached Astone brand hard disk drive, a Western Digital Brand 160 gigabyte (GB) hard disk drive and a number of CD's. A preliminary examination of the PC tower revealed files with titles indicative of child pornography. The computer equipment was thus seized and subsequently examined by the AFP. Upon examination, it was found that the two Western Digital brand hard disks, the Astone brand hard disk and the CD's contained data which included child pornography.
3. Further analysis of the Western Digital hard disk drives revealed folder structures and files consistent with the installation and use of the file sharing programme, LiveWire, a peer to peer software programme which is used to download and share files over the Internet. When first installed, the LiveWire programme had automatically set up a number of folders used to store downloaded data and files, including two subfolders named 'Shared' and 'Incomplete'. Further analysis of those sub-folders revealed files containing child pornography which the applicant had completely or partially downloaded from the Internet.
4. In addition to accessing child pornography from the Internet, the applicant had engaged in transmitting child pornography during 'chat' sessions with other users of the online instant messaging programme, MSN Messenger. That programme allows parties to communicate in real time by way of instant text messages to one another, to see each other by camera, known as Webcam, and to send and receive images, videos and other files. By default, those communications, which are known as 'chats', are saved by Messenger within a subfolder named 'My Received Files' and, in the applicant's case, the 'My Received Files' subfolder was found to contain a number of saved chat logs which showed that the applicant had created the user names 'bRock' and 'Dillion', with associated email addresses: bRock@live.com.au, goglt69@hotmail.com and pointyone@live.com.au, and had used them to transmit child pornography during the period 3 September to 20 November 2009. When using the profile and username bRock, the applicant communicated with other users as himself. When using the profile and username Dillion, the applicant communicated with others under the pretext that he was a 14 year old boy.
5. A review of the chat logs showed communications of a sexual nature with children and adult recipients. Those communications formed the basis of the charges concerning the transmission of child pornography. The judge was provided with a copy of the relevant chat logs, and a summary of the text descriptions which amounted to transmitting child pornography was read into the court transcript. Copies of the images transmitted in the course of the chat logs were also made available to the court.
6. There was as well evidence that the applicant had used the carriage service to procure persons under 16 years of age to engage in sexual activity with the applicant. During the course of chats with two users by the name of 'Anth' and 'Wot', the applicant requested that they masturbate themselves in front of their computers so that the act could be recorded on the applicant's Webcam. Further investigations revealed that Anth and Wot were two children under the age of 16: AM (date of birth, 1 September 1995) and DGU (date of birth 29 March l994).
7. On 5 January 2010, the applicant participated in a taped record of interview with police. He answered 'no comment' to the majority of questions but made admissions as to his ownership of the seized computer equipment which had been found by police during their search of his room on 25 November 2009. He was charged and subsequently bailed on conditions including that he not access the Internet at any time.
8. On 9 July 2010, police received information that the applicant's Messenger account, Dillion, associated with e-mail address pointyone@live.com.au, was active again. As a result of that information, the AFP Internet policing team (IPT), using a covert messenger profile, contacted Dillion and, on 21 July 2010, an IPT member had an online chat with the applicant via Messenger. On that occasion, the IPT member pretended to be a 13 year old boy living in Canberra. On 5 August 2010, an IPT member had a further conversation with the applicant via Messenger. On that occasion the IPT member stated that she was a 15 year old female living in Canberra and the sister of the purported 13 year old male who engaged in the online chat with the applicant on 21 July 2010. On each of those occasions, the applicant claimed that he was a 14 year old boy named Dillion and on each occasion the applicant engaged the other party in conversation of a sexual nature calculated to procure the other party to engage in sexual activity with the applicant.
9. On 18 August 2010, the AFP executed a further search warrant at the applicant's premises at 19 Spring Street, Maryborough. The applicant was present during the search and, pursuant to an order made under s 3L of the Crimes Act 1914, provided the AFP with computer passwords. The AFP was thereby enabled to identify communications between the applicant and the IPT members. The applicant was arrested on 31 August 2010.

6. During the plea, the prosecutor submitted that the appropriate sentencing range for these offences was between seven to nine years. In contrast, the defence submitted that the appropriate range was three to four years.

7. At the date of sentence, the appellant was aged 25 years. He had six prior convictions for various offences, four of which were for committing an indecent act with a child under 16 years.[1] These offences involved grabbing or groping four different children in public places. The appellant had completed two and a half years at university at RMIT and had been accepted to study psychology and social work at Latrobe University. He had 'minimal work experience', having worked as a sales assistant and networker of a secondary college. The judge noted that in his sales role, the appellant was awarded 'employee of the month' for three months running and concluded that he 'demonstrate[s] obviously a capacity'.

8. His Honour accepted that the appellant's guilty plea was an indication of remorse,[2] and took into account the fact that he was serving his sentence in protective custody.[3]

9. The judge noted that reports from psychologist Dr Kennedy, and psychiatrist, Dr Roberts, indicated that the appellant had 'little understanding of [his] offending behaviour'.[4] In particular, his Honour quoted from the report of Dr Kennedy that:

[The appellant] presents as a picture of a person with a lack of insight into his own offending. He presented as a potentially regressed offender.

...

Mr Cooper presents as a young man who is a regressed sexual offender... Clearly, he requires more intensive psychology treatment through a sex offender treatment program. At this point Mr Cooper has little or no understanding of his vulnerability to sexual offending. His assessed risk [is] on a scale ... in the high to moderate range but based on his previous charges, raises significant question about his risk.

10. The judge noted that Dr Roberts had formed a similar view about the appellant, and had stated that he:

appears to minimise his offending history and spoke frequently of his potential to go off his head and act violently but clarified that, he was always able to restrain himself.

11. The report of Ms Linda Moore, a Community Corrections Officer, was also considered. In that report, Ms Moore stated that:

Mr Cooper has a recidivist history of sexual offending against children. He has previously been subject to a community based order with the mandated condition to attend sex offenders programs. Mr Cooper attended the school's base program and upon completion, the psychologist recommended that whilst Mr Cooper did make some progress in the group, he did not develop a level of insight to identify high risk situations and appropriate management strategies. It was recommended that Mr Cooper would benefit from further intervention relating to his sexual offending. Given that Mr Cooper has reoffended whilst being involved in a group based treatment, it is imperative that Mr Cooper reengages with sex offender programs for further intensive group based treatment.

...

It is concerning that Mr Cooper does not accept responsibility for his current or previous offences and is more concerned with discussing injustices towards him surrounding an alleged assault during his apprehension.

12. The judge concluded that the appellant's 'prospects of rehabilitation very much depends on [his] coming to grips with the serious nature of [his] offending and attending counselling through the sex offenders program'.[5]

13. The judge accepted the prosecutor's submission that the appellant's repeated and persistent use of his computer, the sophisticated degree of planning involved in his offending and the nature of the communications themselves placed the offences as 'serious instances of offending'.[6] His Honour concluded that the offences were 'disgraceful in their nature and content'.[7]

14. The appellant was granted leave to appeal on the single ground that the individual sentences imposed on charges, 3, 4, 8 and 9, the total effective sentence and the non-parole period were manifestly excessive.[8]

15. Counsel for the Crown submitted that the judge had regard to relevant mitigating factors and that none of the sentences imposed on these charges fell outside the range of sentences imposed in cases involving comparable offending.[9]

16. In relation to charges 3 and 4, he submitted that appellate courts had imposed or upheld sentences of up to eight years' imprisonment for the offence of using a carriage service to procure a child under the age of 16 to engage in sexual activity with the offender.[10] The charges in this case involved actual child victims and not police officers posing as children. Although the appellant did not arrange to meet the victims of these offences, his Honour had found that the appellant engaged in a course of conduct with the aim of persuading the boys to masturbate and they complied on four occasions.

17. The purpose of this offence was to deter potential offenders from using the internet for the purpose of inveigling children to engage in sexual activity. The Dictionary in the Criminal Code provides that a person is taken to 'engage in sexual activity':

if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

18. It followed that the appellant's behaviour in encouraging the boys to masturbate was not necessarily a less serious offence than offending which involved the offender using the internet to arrange a meeting with a person under 16, with the purpose of engaging in direct sexual activity with that child. It was appropriate for his Honour to give considerable weight to specific deterrence, having regard to the fact that the appellant had previously committed offences against children and the psychiatric reports indicating that the appellant lacked insight into the effects of his offending.

19. Charges 8 and 9 were also serious offences, which involved grooming of persons whom the offender believed to be a boy and his younger sister so as to accustom them to sexual activity. Counsel for the Crown submitted that the sentence of three years' imprisonment was not manifestly excessive because the offences were committed whilst the appellant was on bail and in breach of a bail condition preventing him from accessing the internet. This, it was argued, constituted a significant aggravating factor.

20. The appellant contended that the sentences of 4 years' imprisonment imposed on charges 3 and 4 were 'substantially disproportionate to the conduct involved in their commission'. They did not involve the performance of sexual activities likely to harm the victims as the 14 year old boys were simply encouraged to film themselves masturbating.

21. Charge 2 occurred when the appellant used the name 'Dillion' to pretend that he was a child who had been raped and who had raped or committed indecent acts against other children. It also involved him using the name BRock to describe offences committed against the child Dillion and other children. When communicating with adult recipients as Dillion, he described sexual activities in which he had been forced to participate. He described similar sexual activities to child recipients. In relation to these offences, his Honour said that:

Mr Cooper, the language used by you and the behaviour demonstrated by you to others in this instance is appalling. This type of conduct is to be denounced in the strongest of terms. The filth and degradation being demonstrating by you to these young male victims is utterly disgusting.

The damage being promoted by you to others is just totally reprehensible.[11]

22. Counsel for the appellant submitted that in sentencing the appellant for charges 3 and 4, and charges 8 and 9, his Honour had given excessive weight to his repugnance for the activities involved in charge 2 and had not given sufficient weight to other sentencing principles. In particular, the judge had not had regard to the appellant's relative youth and psychological immaturity, his prospects of rehabilitation and the fact that he had some characteristics of Aspergers' Syndrome.

23. In relation to charges 3 and 4, counsel argued that the intention to procure was no more than 'talk' and the appellant had simply persuaded two 14 year old boys to masturbate in front of a webcam. Neither boy had complained to the police and when they were interviewed, one boy said that he could not recall the incident. It followed that these offences could not have had adverse effects on them.

24. The manifest excessiveness of the sentences on charges 3 and 4 was said to be demonstrated by the fact that state offences involving the direct commission of sexual offences with or in the presence of a child would have attracted a similar sentence. Further, the same sentence of four years' imprisonment was imposed on charge 3 (which involved 3 episodes in which the appellant procured a 14 year old boy to transmit an image of himself masturbating) and charge 4 (which involved a single episode of the same conduct).

25. Counsel submitted that in both Tector v the Queen[12] (where a sentence of 8 years' imprisonment was imposed on each of three charges of the offence covered by charges 3 and 4) and R v Asplund[13] (where a sentence of 3 years' imprisonment and 4 years' imprisonment were imposed on two charges of grooming a child to engage in sexual activity respectively), the offender had been involved in a persistent pursuit of the child or had attempted to arrange a meeting with him or her. Counsel referred to a number of other cases in a table relied upon by counsel for the Crown and pointed out that in most of these the sentences imposed were lower than those imposed on charges 3 and 4, as were the total effective sentences. In R v Gajjar,[14] for example, where the offender had pleaded guilty to one charge of using a carriage service to procure sexual activity with a child under 16, the offender was sentenced to 2 years and 6 months' imprisonment, with provision for him to be released on a recognisance order after 8 months.[15]

26. The appellant contended that the sentences imposed in relation to charges 8 and 9 were also disproportionate to the offending given that:

• there was only one conversation in each case;
• the other party was a police officer, so that the Crown could not rely on the presence of a real victim as an aggravating factor;
• the conversation did not go beyond discussion of masturbation; and
• no physical contact occurred, no gifts or inducements were offered, and there was no attempt to pressure the 'children'.

27. An appeal against sentence on the grounds of manifest excess is difficult to make out. As has frequently been observed, resolution of the question of whether a sentence is manifestly excessive requires an appellate court to conclude that the trial judge has erred, even though it is not possible to identify the particular error which he or she has made.[16]

28. Further, manifest excess is not demonstrated simply by establishing that the sentences imposed on these charges exceeded those which have previously been imposed in similar cases. Nevertheless, consideration of sentences for similar offending which have been imposed or upheld by this Court and other intermediate appellate courts provides guidance as to the previous sentencing practice and 'a yardstick against which to examine' the challenged sentence.[17]

29. Counsel for the Crown provided a table of sentences for comparable offences to the Court. Schedule 1 to these reasons is a table prepared by the Court which sets out the circumstances of the offending and the sentences imposed for offences under s 474.26 (procuring) and under s 474.27 (grooming) of the Criminal Code. Counsel for the Crown informed the Court that these are the only appellate sentencing decisions which did not also involve the offender committing penetrative offences or indecent acts against a child.

30. Despite the difficulty in making out a complaint of manifest excess, we would accept the argument that the sentences imposed on charges 3 and 4 were outside the range of sentences which could be imposed on this offender for these offences. In our view, the sentence imposed did not adequately reflect the age of the offender at the time the offences occurred and the fact that the offending covered by these charges was at the lower end of the scale.

31. The appellant's intention was to procure the boys to masturbate on-screen. There is no evidence that he attempted to persuade them to meet him. He did not attempt to initiate the boys into other sexual activities. Nor did he offer to pay them for what they did. Repellent as these offences were, there is no evidence that the victims were harmed by them. Nor was there any evidence that the images of the masturbating boys were transmitted to others, or stored in a manner that they could later be seen by others. We note that even in cases such as R v Gajjar[18] and R v Fuller,[19] where the offender used the internet to arrange a meeting with the child with the intention of having sex with him or her, the individual sentences imposed were lower than in this case.

32. We would reject the argument that the sentences of 3 years' imprisonment imposed on charges 8 and 9 were manifestly excessive. The legislation is designed to prevent persons with a sexual interest in children using the internet to gain access to them and to groom them for future sexual activity. As this Court observed in R v Gajjar:

An offender's conduct is not to be regarded as less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.[20]

33. It seems to us that these sentences were well within the range of sentences imposed for the grooming offence.

34. Because the ground of manifest excess is made out in relation to charges 3 and 4, we would re-sentence the appellant to three years' imprisonment on these charges, with the sentences imposed on these charges to be served concurrently with each other. We would impose the same individual sentences on the other charges as were imposed by his Honour, but make some changes to the orders for cumulation.

35. It is intended that orders for cumulation be made having the effect that the appellant will serve a total effective sentence of five years and six months' imprisonment.

36. This is achieved by the commencement dates for each of the sentences set out in the table below.

Using a carriage service to access child pornography

Using a carriage service to transmit child pornography

Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity

Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity

Using a carriage service to cause to transmit child pornography

Using a carriage service to transmit child pornography

Using a carriage service to groom a person under 16 years of age

Using a carriage service to groom a person under 16 years of age

37. Because the term of imprisonment imposed on charge 6, which was a State offence, was less than 2 years, the Court is not required to fix a non-parole period for that offence.[21] In relation to the Commonwealth offences, pursuant to s 19AB of the Crimes Act 1914 (Cth), we fix a non-parole period of 3 years and 9 months' imprisonment.

38. There is some doubt as to whether s 6AAA of the Sentencing Act 1991 (Vic) applies to sentences for federal offences, as well as sentences for state offences.[22] On the assumption that it applies, we declare that if the appellant had not pleaded guilty, we would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of 5 years.

39. The Court will order that the records of the Court note the period of pre-sentence detention served by the appellant.

TABLE OF SENTENCES IMPOSED FOR OFFENCES UNDER SS 474.26 AND 474.27 OF CRIMINAL CODE (CTH)

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

3 x Use carriage service with intent to procure sexual activity

Count 1: Emailed 12 year old boy (actual child victim), offered $10 to play with his (boy's) penis.

(Boy told mother, who emailed accused pretending to be son, providing him with son's phone number)

Count 2: Rang boy to ask if he was still interested in him playing with boy's penis.

Persistent offending - pursued child over period of 6 weeks but the three offences were committed within a short period of one another

1 count homosexual intercourse with male under 10 years

4 counts of indecent assault with person under 10 years;

R v Asplund [2010] NSWCCA 316

2 x Use carriage service to groom a person under 16 years

Over 5 days, had several online chats of sexual nature with girl he believed to be 14 years old (child victim was actually 13 years old)

Count 2: over 2 months, made 44 calls and sent 640 text and multimedia messages (including image of his erect penis) to victim

Sought to arrange meeting in hotel room for sex; gave her $2500 over 61 days.

Tried to blame his 15 year old son - persuaded him to provide false police

Conduct found to have amounted to high level of offending over a significant period of time, placing offending into more serious category of offending

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

(including disseminating, transmitting and possessing child pornography)

Count 9: 1 x Use carriage service to groom a person under 16 years

Numerous telephone communications with school boys to discuss masturbation, showed and sent child pornography; possessed child pornography

Count 9: Engaged in online chat with "adolescent male" (undercover police officer), proposed meeting for sexual activity, provided details

"At least reasonably good" prospects of rehabilitation

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

2 x Use carriage service with intent to procure sexual activity

Count 1: used telephone chat service to have sexual conversation with male whom he believed to be 15 years old.

Count 2: used chat service to offer money for sex to "15 year old girl" (undercover police officer). Offered money for oral sex

Nb. 2 x offences of Use carriage service in offensive manner - s 417.17(1) Criminal Code (Cth) taken into account pursuant to s 16BA Crimes Act (Cth)

Rampley v R [2010] NSWCCA 293

1 x Use carriage service to groom a person under 16 years

Sexually explicit internet communications with "12 year old girl" (undercover police officer), including instructions on masturbation, showed her pornographic video

Good prospects of rehabilitation provided treatment continued

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

1 x Use carriage service with intent to procure sexual activity

Engaged in sexually explicit online chat with "14 year old girl" (undercover police officer).

R v Costello [2011] QCA 39

Count 1: Use carriage service to groom a person under 16 years

Counts 2, 3, 4 & 5: Use electronic communication with intent to expose person under 16 to indecent matter

Engaged in 9 online chats with "14 year old girl" (undercover police officer).

Sent indecent images and videos (including images of his exposed genitals and of him masturbating).

R v Fuller [2010] NSWCCA 192

1 x Use carriage service with intent to procure sexual activity

13 online communications with "13 year old girl" over 2 months (undercover police officer), initiated sexually explicit topics and encouraged her to masturbate.

Unlikely to reoffend/good prospects of rehabilitation

DPP v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69

Count 1: Use carriage service with intent to procure sexual activity

Count 2: Possess child pornography (Crimes Act (Vic), s 70(1))

Engaged in online chats over 4 days with "14 year old girl" in chat site designed for communication with young girls.

Described planned sexual activity in detail and sent pornographic images via email.

22 months, to be released forthwith upon entering a recognizance in the sum of $1000

Note, although sentence was upheld on appeal, the Court of Appeal stated that if sentencing, it would have required offender to serve term of imprisonment

[1] R v Bryan Cooper (Unreported, County Court of Victoria, Judge Pilgrim, 28 February 2011) ('Reasons') [67].

[8] Although Nettle JA granted the appellant leave to appeal 'against individual sentences on charges 3 and 4, and 8 and 9, on ground 1', having regard to the whole of his Honour's leave reasons, it is clear that his Honour did not intend to refuse leave to appeal on the basis that the total effective sentence, and non-parole period, were manifestly excessive. The appellant was refused leave to appeal on the ground that the judge erred in correcting a sentencing order more than 14 days after first making the order.

[9] Counsel relied on a Table of Comparable Cases which he provided to this Court and appears to have been considered by the trial judge. On the basis of that table, the Court has prepared its own table which is attached to these reasons.

[10] Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 (sentences of eight years' imprisonment on each of 3 charges of this offence, to be served concurrently); see also R v Asplund [2010] NSWCCA 316.

[12] [2008] NSWCCA 151; (2008) 186 A Crim R 133.

[13] [2010] NSWCCA 316.

[14] [2008] VSCA 268; (2008) 192 A Crim R 76.

[15] See also Rampley v R [2010] NSWCCA 293.

[16] Hili v the Queen [2010] HCA 45; (2010) 242 CLR 520, 538 (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ).

[17] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28, 98 cited with approval by the High Court in Hili v the Queen [2010] HCA 45; (2010) 242 CLR 520, 537 (French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ).

[18] [2008] VSCA 268; (2008) 192 A Crim R 76.

[19] [2010] NSWCCA 192.

[20] [2008] VSCA 268; (2008) 192 A Crim R 76, 85.

[21] Sentencing Act 1991, s 11.

[22] In Scerri v the Queen [2010] VSCA 287, counsel for the Commonwealth submitted that the section should apply to federal offences and the Court proceeded on that basis.