O'HARA -v- THE QUEEN [2021] WASCA 123 (15 July 2021)

On 1 November 2018, at a Perth suburb, the appellant had in his possession one Seagate hard drive containing child exploitation material, contrary to s 220 Criminal Code (WA).

12 months' imprisonment - State offences head sentence

Between 1 October 2018 and 20 October 2018, at Perth, the appellant, being 34 years of age, used a carriage service to do an act in preparation for engaging in sexual activity with a person under 16 years of age, contrary to s 474.25C Criminal Code (Cth).

Between 26 October 2018 and 30 October 2018, at Perth, the appellant, being 34 years of age, used a carriage service to transmit a communication to the recipient, Mary, being someone the appellant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity, contrary to s 474.27(1) Criminal Code (Cth).

12 months' imprisonment - Commonwealth offences head sentence

On 26 October 2018, at Perth, the appellant used a carriage service to transmit a communication to the recipient, Mary, being someone the appellant believed to be under 16 years of age, which included material which is indecent, contrary to s 474.27A(1) Criminal Code (Cth).

On 26 October 2018, at Perth, the appellant transmitted material, using a carriage service, the material being child pornography material, contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 20 October 2018 and 31 October 2018, at Perth, the appellant, being 34 years of age, used a carriage service to transmit a communication to the recipient, [second victim], being someone the appellant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity, contrary to s 474.27(1) Criminal Code (Cth).

Between 24 October 2018 and 2 November 2018, at Perth, the appellant, being 34 years of age, used a carriage service to transmit a communication to the recipient, [third victim], being someone the appellant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity, contrary to s 474.27(1) Criminal Code (Cth).

Between 29 October 2018 and 31 October 2018, at Perth, the appellant transmitted material using a carriage service, the material being child pornography material, contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 29 October 2018 and 1 November 2018, at Perth, the appellant transmitted material using a carriage service, the material being child pornography material, contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 30 October and 31 October 2018, at Perth, the appellant used a carriage service to transmit a communication to the recipient, [third victim], being someone the appellant believed to be under 16 years of age, which included material which is indecent, contrary to s 474.27A(1) Criminal Code (Cth).

Between 23 October 2018 and 31 October 2018, at Perth, the appellant used a carriage service to transmit a communication to the recipient, [fourth victim], being someone the appellant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity, contrary to s 474.27(1) Criminal Code (Cth).

Between 23 October 2018 and 24 October 2018, at Perth, the appellant transmitted material, using a carriage service, the material being child pornography material, contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 23 October and 31 October 2018, at Perth, the appellant solicited material, using a carriage service, the material being child pornography material contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 23 October 2018 and 31 October 2018, at Perth, the appellant accessed material using a carriage service, the material being child pornography material, contrary to s 474.19(1)(a) Criminal Code (Cth).

Between 25 October 2018 and 27 October 2018, at Perth, the appellant used a carriage service to transmit a communication to the recipient, [fourth victim], being someone the appellant believed to be under 16 years of age, which included material which is indecent, contrary to s 474.27A(1) Criminal Code (Cth).

1. As can be seen, for the State offences (counts 1 ‑ 3) the appellant was sentenced to a total of 12 months' immediate imprisonment, commencing on 13 October 2019. In respect of these offences, the appellant became eligible for parole on 13 April 2020. For the Commonwealth offences (counts 4 ‑ 17), the appellant was sentenced to a total of 4 years' imprisonment to commence on 13 April 2020 (the date the appellant became eligible for parole under the State offences) with a non‑parole period of 2 years.
2. Originally, the appellant relied on two grounds of appeal. Ground 1 alleges, in effect, that the individual sentences for counts 3, 9, 12, 13, 15, 16 and 17 were manifestly excessive. Ground 2 alleges, in effect, that the total effective sentence infringed the first limb of the totality principle. On 5 August 2020, the appellant was granted leave to add a third ground of appeal which alleges that, with respect to counts 6, 12 and 17, his Honour applied the wrong maximum penalty. On each of these counts, the sentencing judge applied a maximum penalty of 12 years' imprisonment. In fact, the correct maximum penalty was 7 years' imprisonment.
3. The respondent correctly conceded that his Honour made the error alleged in ground 3 and that the error was material. The respondent also conceded that, as his Honour's sentencing discretion had miscarried in respect of the individual sentences imposed on counts 6, 12 and 17, all of the sentences should be set aside and this court should resentence the appellant afresh in respect of them. However, the respondent submitted that this court should impose no different total effective sentence to that imposed at first instance.
4. It is unnecessary to consider grounds 1 and 2 because ground 3 has been made out, with the result that this court must resentence the appellant. The appeal must be allowed. We would resentence the appellant to a lesser total effective sentence in terms of the orders set out below at [61].

1. There was no challenge to the statement of facts read aloud by the prosecutor. They were expressly adopted by the sentencing judge on 15 October 2019 and may be summarised as follows.
2. The charges against the appellant arose out of investigations relating to the uploading of child pornography on various Twitter accounts, including an account or accounts operated by the appellant.[1]
3. On 1 November 2015, Australian Federal Police officers executed a search warrant on the appellant's premises and seized an Apple iPhone, a Toshiba laptop computer and a Seagate hard‑drive. When interviewed at the time of the search, the appellant made various admissions, including that:

(1) he had owned the Apple iPhone for three years and used it to chat with girls between the age of 8 and 16 years using Twitter;[2]

(2) the Toshiba laptop computer belonged to his mother, but he had used it to search for and download child pornography;[3] and

(3) he had purchased the Seagate hard‑drive approximately one year earlier and used it to store the child pornography that he downloaded on the Toshiba laptop computer.[4]

1. Count 1 related to six images of Australian National Victim Image Library (ANVIL) category 1 child pornography found on the Apple iPhone.[5]
2. Count 2 related to 630 ANVIL category 1 images found on the Toshiba laptop computer.[6]
3. Count 3 related to 703,939 images and 724 videos located on the Seagate hard‑drive.[7] Due to the large number of images, not all of them could reasonably be categorised on the ANVIL scale. Based on a random sample review, the prosecution alleged (and the appellant accepted) that it would be reasonable to estimate that 528,519 images came within category 1 of the ANVIL scale and 3,764 images fell within category 2. The remainder fell into non‑child exploitation categories. Of the 724 videos, 456 fell within category 1 of the ANVIL scale, 162 fell within category 2, 6 fell within category 3, 31 fell within category 4 and 3 fell within category 5.[8] The sentencing judge was provided with a 'very full description of the content of the videos'.[9] No purpose would be served by describing their content here.
4. The Commonwealth offences (counts 4 ‑ 17) involve the appellant's use of his Twitter account between 1 October 2018 and 31 October 2018.[10]
5. Count 4 concerns the creation by the appellant of a false identity, 'Maddie', for a Twitter account. Maddie projected the persona of a young girl. The appellant saved a variety of images of a girl of this age and used these images to portray his online identity as that of an 11‑year‑old. He used this persona to communicate with his various underage victims, as set out below.[11]
6. Counts 5 ‑ 7 concern Twitter communications with the first victim, 'Mary', who appeared to be a 13-year-old girl living in the Philippines. Investigators were not able to contact Mary to confirm her correct identity. His Honour found that the appellant believed her to be a child and that there was a strong likelihood that she was, in fact, a child.[12]
7. Count 5 is a grooming offence involving the appellant chatting about pornographic sites with Mary. Count 6 is a charge of transmitting indecent material to Mary, constituted by the appellant forwarding to her a link to a Twitter page set up for the sharing of lesbian videos. Count 7 involved the appellant forwarding Mary images of a topless girl between the ages of 10 and 12.[13]
8. Count 8 concerns a second victim, a girl who identified herself as being 10 years of age. The appellant engaged in a game of 'truth or dare', during which he invited the child to send him the 'naughtiest thing [she had] seen on Twitter'.[14] The appellant also sent to the child details of a Twitter account called 'littlehornyslut'.[15]
9. Counts 9 ‑ 12 concern a third victim, a girl who was 10 years of age.[16]
10. Count 9 is a grooming offence. The appellant engaged in communications with the child, introducing the topic of being a lesbian. After forwarding the victim images of his adopted persona, 'Maddie', the appellant spoke to the victim about one day getting together and engaging in sexual activity. There were other communications between the appellant and the victim, which his Honour described as being part of a grooming process that was likely to cause confusion to the victim about her sexuality.[17]
11. Count 10 involved the appellant sending the victim a photograph of a naked girl between the ages of 10 to 12 years. Count 11 involved the appellant sending a picture of a naked girl's vagina and anus. There were other, uncharged, instances of the appellant sending pornographic material to the victim.[18] Count 12 involved the appellant sending details of a Twitter link which contained a page for the sharing of lesbian videos and, specifically, to a post containing a video of two females engaging in sexual activity.[19]
12. Counts 13 ‑ 17 concern a fourth victim, a girl who was 8 years of age.[20]
13. Count 13 is a grooming offence. The appellant initiated a conversation about 'normal things' such as school and pets, and soon after instigated a conversation about sexual preferences.[21]
14. Count 14 is an offence of transmitting child pornography material, which involved the appellant forwarding to the victim a photograph of a naked girl aged between 10 and 12 years, claiming it to be a photograph of his adopted persona, 'Maddie'. Counts 15 and 16 are charges of soliciting and accessing child pornography material. His Honour found that the appellant engaged the victim in a game of 'truth or dare', in which he dared her to send a naughty picture to him. The victim sent a photograph of herself topless, and later sent a short video of herself naked. The victim also sent a photograph of her genital area and a photograph of her lifting her top, exposing her breasts. Count 17 involved the appellant transmitting to the victim details of a Twitter page set up for the sharing of lesbian videos and, in particular, a video which showed two females engaging in sexual activity with each other.[22]

1. The appellant was 34 years old at the time of the offending and 35 when he was sentenced. He has no prior convictions. The appellant has lived with his parents throughout his life and has never been independent. He completed year 10 and commenced an apprenticeship which he did not complete. Since then, he has worked for the same employer as a cleaner, a role which he has maintained for over 20 years. At the time of sentencing, the appellant had 'never been in a sexual relationship with another person'. At about the age of 31, he developed an interest in child exploitation material which he used for sexual arousal. Since his arrest, the appellant has ceased to access this material.[23]
2. A court‑ordered psychological report concluded that the appellant suffers from social inadequacies and struggles to sustain supportive and functional relationships. He is emotionally immature and vulnerable, and is unable to live an independent life without his parents. His Honour noted that these findings were consistent with the appellant's explanation for his offending, being that he was bored, lonely and wanted someone to talk to.[24]
3. The appellant's private treating psychologist reported that, in early 2019, the appellant attempted suicide by taking an overdose and, later that year, attended the Bentley Mental Health Service for his continuing suicidal ideation. With the assistance of his private treating psychologist, the appellant has made positive steps towards his rehabilitation.[25] His Honour found that, having regard to the appellant's antecedents and the psychological reports, his chances of reoffending were at the moderate to lower level.[26]

1. The sentencing judge took into account the following mitigating factors:

(1) The appellant's cooperation with police and other investigators.[27]

(2) The appellant's pleas of guilty, which his Honour was satisfied were entered at the first reasonable opportunity. His Honour observed that the prosecution case was particularly strong as the AFP had been monitoring the appellant for some time and caught him 'red‑handed'. With respect to the State offences, his Honour applied a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) of 20%.[28]

(3) The appellant's prior good record.[29]

(4) The appellant's remorse, which his Honour accepted was genuine.[30]

(5) The appellant's largely favourable prospects for rehabilitation, demonstrated by his engagement in psychological treatment, and the protective factors in place, including stable accommodation, family support and full‑time employment.[31]

(6) The appellant's emotional vulnerability and immaturity which would make a prison environment difficult for him.[32]

1. His Honour found that an aggravating feature of the grooming and communication charges was that the behaviour was of a corrupting nature, which sexualised the child victims and exposed them to pornographic material. His Honour found that, in respect of each victim, the appellant engaged in conduct which was likely to cause confusion as to their sexuality and 'distort their moral and appropriate sexual behaviour compass'.[33]
2. His Honour observed, consistently with the sentencing principles applicable to offences of the kind committed by the appellant, that general deterrence was the primary sentencing consideration. His Honour observed that there is a paramount public interest in the protection of children, particularly vulnerable children, and in reducing the demand for child exploitation material. His Honour stated that child pornography is readily accessible internationally through the internet and that such offending is difficult to detect and prevent. In relation to the Commonwealth offences involving the sexual exploitation of children using Twitter accounts set up in a false name, his Honour emphasised the need to provide strong deterrence to minimise the 'enormous risks' that young children are subject to as a result of predators such as the appellant using technology to engage with and corrupt them.[34]
3. In sentencing the appellant for the Commonwealth offences, his Honour expressly took into account the factors listed in s 16A of the Crimes Act 1914 (Cth) insofar as they were relevant and known to the court.[35] The appellant makes no criticism of his Honour's treatment of these factors.
4. His Honour concluded that, in respect of each of the offences committed by the appellant, a term of imprisonment was appropriate. His Honour gave consideration to suspending the terms,[36] but concluded that it was inappropriate to do so, given the seriousness of the offending and the need for general deterrence.[37]
5. After imposing the individual sentences, his Honour addressed the application of the totality principle. He gave effect to this principle by the orders he made for concurrency and cumulacy. As required, he set a single non‑parole period for the Commonwealth offences. In setting the non‑parole period, his Honour took into account the appellant's vulnerability and the fact that any term of imprisonment to be served would be 'particularly difficult'.[38]
6. It is convenient to deal with ground 3 first.

The sentencing judge erred in law when exercising his sentencing discretion by acting on the principle that the maximum sentence of imprisonment for an offence against s 474.27A(1), Criminal Code (Cth) (counts 6, 12 and 17) was 12 years, when the maximum sentence for such an offence at the time of commission by the appellant was 7 years.

1. Each of counts 6, 12 and 17 alleged that the appellant used a carriage service to transmit indecent material to someone the appellant believed to be under 16 years of age, contrary to s 474.27A(1) of the Criminal Code (Cth).
2. In his sentencing remarks, his Honour stated that the maximum penalty for these offences was '12 years' imprisonment and a fine of $151,200'.[40] In fact, the maximum penalty for an offence contrary to s 474.27A(1) of the Criminal Code (Cth) was, at all relevant times, 7 years' imprisonment or a fine of $88,200, or both.
3. Thus, as the respondent correctly conceded, his Honour erred as alleged in ground 3. The respondent further conceded that, having regard to the substantial overstatement of the maximum penalty applied by the sentencing judge, the error was material because it was capable of affecting the sentencing judge's assessment of the seriousness of counts 6, 12 and 17.[41]
4. While there are cases where an error as to the prescribed maximum penalty was found not to be material,[42] generally speaking, such an error will be material. This is because, as Gleeson CJ, Gummow, Hayne and Callinan JJ pointed out in their joint judgment in Markarian v The Queen,[43] careful attention to maximum penalties will almost always be required for three reasons. First, the legislature has legislated for them; second, because they invite comparison between the worst possible case and the case before the court at the time; and third, they provide a yardstick to be taken and balanced with all the other relevant factors.
5. For the reason given by the respondent, his Honour's error with respect to the maximum penalty applicable to counts 6, 12 and 17 is material. Ground 3 has been made out.
6. As a material express error has been demonstrated, it is the duty of this court to exercise afresh the sentencing discretion with respect to counts 6, 12 and 17: Kentwell v The Queen.[44]
7. The question arises whether this court should proceed to resentence the appellant on all of the offences committed by him, bearing in mind that the sentences imposed on counts 6, 12 and 17 were ordered to be served wholly concurrently. The appellant submitted[45] and the respondent accepted, at least implicitly, that this court should proceed on this basis.[46] We will adopt this approach. It is consistent with the approach adopted in Sathitpittayayudh v The State of Western Australia[47] and Bogers v The State of Western Australia,[48] applying the principles in McGarry v The Queen.[49]
8. This approach is also consistent with basic sentencing principles applicable to cases where a court is called upon to sentence an offender for more than one offence. In such cases, a court is first required to sentence the offender on each of the individual counts in accordance with the seriousness of the offence, before determining questions of concurrency, cumulacy and, finally, totality.
9. The total effective sentence reflects the overall criminality of the appellant's offending. Orders for concurrency and cumulacy or any adjustments to an individual sentence to take into account totality are informed by the sentencing judge's assessment of the overall seriousness of the offending. This assessment is, in turn, informed by the seriousness of the individual offences. Accordingly, if one or more of the individual sentences for the offending is infected by error, this court's jurisdiction to resentence for the offences beyond the offence(s) infected by error would be enlivened, even if the erroneous individual sentences had been ordered to be served wholly concurrently. Certainly, that will be so where, as here, the error(s) in relation to the individual concurrent sentence(s) is material to the evaluation of the overall criminality informing the total effective sentence.
10. As this court is obliged to resentence the appellant in respect of all offences, it is unnecessary to decide grounds 1 and 2.

1. This court has all of the material it requires to resentence the appellant.
2. We will not repeat what we have already written about the facts of the offences and the appellant's personal circumstances. We are mindful of the maximum penalties applicable to each offence.
3. The major sentencing objectives for the offences committed by the appellant, whether under State or Commonwealth legislation, are the protection of young and vulnerable children. This is achieved by the imposition of sentences that emphasise general and specific deterrence. While an offender's favourable personal circumstances, including good prospects for rehabilitation are not irrelevant, they are accorded less weight.[50]
4. We have had regard to the appellant's pleas of guilty, his remorse, his cooperation with the authorities, and his psychological profile. We accept, as did the sentencing judge, that imprisonment will be more difficult for him.
5. For the appellant's pleas of guilty in respect of the State offences (counts 1 ‑ 3), we would reduce each sentence by 20% in accordance with s 9AA of the Sentencing Act.
6. In respect of the Commonwealth offences, we have had regard to all of the relevant factors that are known to this court under s 16A of the Crimes Act.
7. Each of the offences committed by the appellant was serious. With respect to the State offences, count 3 involved the possession of a very large number of images and videos. While much of this material appears to be within categories 1 or 2 of the ANVIL scale, some of it came within the higher categories on that scale.
8. Having regard to all relevant matters, in respect of the State offences we would resentence the appellant to the same individual sentences as were imposed at first instance.
9. We would order that the State offences be served concurrently with each other, resulting in a total sentence of 12 months' immediate imprisonment. We would order that the appellant be eligible for parole. The sentence of 12 months' immediate imprisonment will be taken to have commenced on 13 October 2019. The appellant will have been eligible for release on parole on 13 April 2020.
10. We now turn to the Commonwealth offences.
11. Save for counts 6, 12 and 17, we would impose the same terms of immediate imprisonment as were imposed by the sentencing judge.
12. In respect of counts 6, 12 and 17, we would impose individual sentences of immediate imprisonment as follows:

1. We would order that the sentences for the Commonwealth offences imposed on counts 9, 10, 14 and 17 be served cumulatively. We would order that all of the other sentences be served concurrently with each other and concurrently with the sentence imposed on count 9. Thus, the total sentence for the Commonwealth offences is 3 years 6 months' immediate imprisonment. We would order that the new total sentence for the Commonwealth offences be taken to have commenced on 13 April 2020. We would order that the appellant serve a single non‑parole period of 18 months.
2. The total effective sentence for all of the offences committed by the appellant is that the appellant must serve 4 years' imprisonment. He will become eligible for parole after serving 2 years' imprisonment from 13 October 2019.

(3) The appeal is allowed, the sentences imposed by Sleight CJDC are set aside and the appellant is resentenced as follows:

These sentences of immediate imprisonment are to be served concurrently with each other and the appellant is eligible for parole. Thus, the total sentence for the State offences is 12 months' immediate imprisonment. The sentences are to be taken to have taken effect on 13 October 2019.

The sentences of immediate imprisonment on counts 4 ‑ 8, 11 ‑ 13, 15 and 16 are to be served concurrently with each other and concurrently with the sentence imposed on count 9.

The sentences on counts 9, 10, 14 and 17 are to be served cumulatively commencing on 13 April 2020. Thus, the total sentence for the Commonwealth offences is 3 years 6 months' immediate imprisonment. There will be a single non‑parole period for the Commonwealth offences of 18 months.

(4) For the avoidance of doubt, the total effective sentence for all offences committed by the appellant is 4 years' immediate imprisonment. He will be eligible to be released on parole after serving 2 years' imprisonment from 13 October 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[5] ts 11 - 12. The ANVIL schema classifies images and videos into nine different categories. Categories 1 to 6 feature child exploitation material. Category 1 includes sexually suggestive images or videos of children where there is no actual sexual activity taking place. Category 2 includes images or videos of non‑penetrative sexual acts between children, and solo masturbation by a child. Category 3 includes images or videos of non‑penetrative sexual activity between adults and children. Category 5 includes images or videos of penetrative sexual activity between children only, or between adults and children. Category 5 includes images or videos of a child being subject to sadism, torture, bestiality or humiliation. Category 6 includes audio or visual representations of child pornography, and can feature any of the activities taking place in categories 1 to 5. Categories 7 to 9 feature non‑child exploitation material, and are not contrary to law: Australian Federal Police, Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material, Standard Operating Procedure (2017).

[36] While 'suspension' is not a term expressly referred to in the Crimes Act (Cth), s 20(1)(b) of that Act allows for an offender sentenced to a term of imprisonment to be released upon giving certain undertakings either immediately or after a specified period of time. It is a regime analogous to a suspended imprisonment order, and is sometimes referred to in this way: see R Fox and A Freiberg, Fox & Frieberg's Sentencing - State and Federal Law in Victoria (3rd ed, 2014) [12.125].

[41] Samardali v The Queen [2018] WASCA 220 and The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77 [44] (Buss P). Although his Honour dissented in the outcome, there is no doubting the correctness of the statement we have referred to.

[43] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].

[44] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42].

[47] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29].

[48] Bogers v The State of Western Australia [2020] WASCA 174 [126].

[49] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].

[50] As to the State offences, see The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] ‑ [73].