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[2010] WASCA 178
Court of Appeal (WA)
2010-09-09
Buss JA, Lure P, Mazza J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SCHAPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 178
BETWEEN : LEONARDUS CLEMENTS ADRIANUS MARIA SCHAPER
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Sentencing - Appeal by offender - Cyber predator - Using electronic communications with intent to procure a person believed to be under the age of 16 years to engage in sexual activity and to expose such a person to indecent matter - Possession of child pornography - Whether sentencing judge erred by classifying and dealing with the offending as being in or near the worst category of its type - Whether sentencing judge erred in finding that there was no established range of sentences - Whether the sentencing judge failed properly to apply the totality principle
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Ly v The Queen [2007] NSWCCA 28
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
R v Baldock [2010] WASCA 170
Reid v The State of Western Australia [2009] WASCA 237
Speering v The State of Western Australia [2008] WASCA 266
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
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
The State of Western Australia v Rose [2010] WASCA 31
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
1 McLURE P: I agree with the orders proposed by Buss JA. These are my reasons for that conclusion.
2 I am satisfied that the learned sentencing judge made an express error in failing to take into account the range of minimum custodial periods customarily imposed for the types of offences of which the appellant was convicted. It seems to me the sentencing judge has misunderstood the majority judgment in The State of Western Australia v BLM [2009] WASCA 88. That case concerned the proper construction of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act). The effect of s 3 of the Amendment Act is to repeal cl 2 of what was commonly known as the 'transitional provisions' of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the 2003 Act). Prior to the commencement of the 2003 Act, prisoners were effectively entitled to a remission of one-third of the sentence of imprisonment imposed upon them by a court. With the commencement of the 2003 Act, remission was abolished however courts were required to impose a term that was two-thirds of the fixed term that would have been imposed under the law as it stood prior to the operation of the 2003 Act. The practical effect of the transitional provisions was to reduce the statutory maximum penalty for an offence by one-third.
3 Section 3A of the Amendment Act relevantly provides:
(3) A court sentencing an offender to a fixed term can have regard to the minimum custodial period of the fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement [of the Amendment Act], whether or not clause 2 applied to their imposition.
(4) A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.
4 The expression 'minimum custodial period of the fixed term' is defined as the amount of the fixed term required to be served in custody before the offender would be, or was or would have been, eligible or entitled to be released, whether on parole or on being discharged from the sentence.
The construction we prefer sees the effect of the Amendment Act as requiring a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to the enactment of the Amendment Act, to have regard to the minimum custodial periods of the sentences established by that range, for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way subsequent to the Amendment Act. However, in the case of offending falling within the worst category of offending, and in relation to offending of that type only, the effect of the Amendment Act is that a sentencing judge may impose the statutory maximum penalty, or a penalty close to the maximum, notwithstanding that the effect of doing so would be to require the offender to serve a substantially increased minimum custodial period [7].
[I]t seems to us that the obvious construction of cl 3A(3) is one which sees it as a requirement that, for the purpose of considering questions of comparability of sentence, the court have regard to the minimum custodial period which the offender will be required to serve before being eligible for release. That is, rather than mandating a mathematical one-third reduction, Parliament was requiring the court to compare minimum custodial periods, both before and after the enactment of the transitional provisions, in order to arrive at an appropriate minimum custodial period for an offender sentenced after the Amendment Act, and to impose a head sentence which would have that result.
6 The sentencing judge concluded that there was no established range of sentences for the type of offending committed by the appellant (ts 21). He continued:
Accordingly, I'm not being constrained by a range of sentences. I will consider sentence in respect to these offences at large, as it were, and from a commencing point of near to a worst category case.
7 It is clear that the sentencing judge did not take into account the minimum custodial period in comparable cases. However, it is not clear whether that was because he regarded the offending as being in the worst category or because there was no relevant range of sentences. Either way he was wrong. I agree with Buss JA for the reasons he gives that the circumstances of the offending in this case were not such as to bring it within the worst category of offending for the purposes of the principle in BLM.
8 Further, the sentencing judge erred in concluding that there is no established range of sentences for this type of offending. Reference in BLM to 'an established sentencing range' is to the range of sentences customarily imposed for offences of the type in question. The range of sentences customarily imposed for an offence does not establish the range of the sound sentencing discretion; were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations including changes in the prevalence of an offence: The State of Western Australia v Akizuki [2008] WASCA 267 [71]. The range of sentences customarily imposed is dynamic not static. It can expand at its lower and upper ranges to reflect differences in relevant sentencing considerations.
9 The individual sentences and the total sentence imposed on the appellant are significantly higher than any imposed in comparable cases (The State of Western Australia v Collier [2007] WASCA 250; The State of Western Australia v Freemantle [2008] WASCA 98; Speering v The State of Western Australia [2008] WASCA 266; The State of Western Australia v Porter [2008] WASCA 154; The State of Western Australia v Johnson [2009] WASCA 224; Reid v The State of Western Australia [2009] WASCA 237; The State of Western Australia v Rose [2010] WASCA 31). It is correct that in all the State appeals with the exception of Johnson, the double jeopardy principle applied. However, Collier and Freemantle (and Speering and Reid) involved breaches of s 204B(3) of the Criminal Code (WA) which has a statutory maximum penalty of 10 years imprisonment. The appellant was convicted of offences under s 204B(2), the statutory maximum for which is 5 years imprisonment. The total sentence imposed on the appellant is double the highest total sentence imposed for a breach of s 204B(3) (in Speering which was not a State appeal).
10 However, it is also the case that the circumstances of the appellant's offending are more serious than in the comparable cases which justifies a higher minimum custodial period (and thus sentence) than previously imposed. The appellant used four different personas each with a different internet hotmail address: Amanda a 36-year-old female; Jess a 14-year-old female; Mike a 33-year-old male; and Geoff a male in his 40s. The sentencing judge found that the appellant used the Amanda profile to groom the 'child' to test her limitations and introduce her to various forms of sexuality. The Jess profile was used to normalise sexual behaviour with Mike and later Geoff. The process of grooming was described as 'methodical, occasionally overt, sometimes subtle, but always with a high degree of cunning and desire to corrupt the child' (ts 19). The attempt to meet the child aggravated the seriousness of the offending. The sentencing judge correctly categorised the s 204B(2) offences according to their level of seriousness. His error was in failing to have regard to the minimum custodial periods customarily imposed with the consequence that the sentences he imposed were disproportionately high.
11 BUSS JA: On 2 October 2009, the appellant was convicted in the District Court, on his pleas of guilty, on 21 counts in an indictment, namely:
(a) 12 counts of using an electronic communication with intent to expose a person under the age of 16 years to indecent matter, contrary to s 204B(2)(b)(ii) of the Criminal Code (WA) (the Code) (counts 1 - 4, 7, 9, 11 - 15 and 18);
(b) seven counts of using an electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity, contrary to s 204B(2)(b)(i) of the Code (counts 5, 6, 8, 10, 16, 17 and 19); and
(c) two counts of possession of child pornography, namely, computer data in the form of video and photographic images stored on a computer hard drive, contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Classification Act) (counts 20 and 21).
12 The appellant was also convicted, on his plea of guilty, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA) on one count of possession of an obscene article, contrary to s 59(5) of the Classification Act.
13 On 6 November 2009, the appellant was sentenced by Groves DCJ to a total effective term of 4 years' immediate imprisonment, with eligibility for parole. The sentence was back-dated to 2 October 2009, being the date on which the appellant was taken into custody in respect of the offences.
14 The individual sentences were structured as follows:
15 The sentencing judge achieved the total effective sentence of 4 years' immediate imprisonment by ordering that all counts be served concurrently, except for count 20 which he ordered be served cumulatively on count 19.
16 The appellant appeals to this court against the sentencing decision.
17 The appellant relies on three grounds of appeal.
18 Ground 1 alleges that the sentencing judge erred by classifying and dealing with the appellant's offending as being in or near the worst category of its type. Ground 2 alleges that his Honour erred in finding that there was no established range of sentences for offending of this type. Ground 3 alleges that the total effective sentence was excessive, in all the circumstances of the case, as a result of his Honour's failure properly to apply the totality principle.
19 On 5 February 2010, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
20 At the time of the offending, the appellant was aged 63 years. He used four different personae to engage in about 22 chat sessions over a three-month period through an internet online social networking site with a person whom he believed to be a girl aged 13 years. The person with whom he was communicating on each occasion was in fact an undercover police officer. The appellant was arrested by the police at a meeting place which he had arranged with the child persona.
21 The police then seized the appellant's computer and located various images of child pornography. Although the number of images found was relatively small, the 16 video files, the subject of count 20, depicted children appearing to be aged between 8 and 15 years engaging in sexual intercourse with adults, children masturbating, children engaged in fellatio and cunnilingus with adults, and a child being anally and vaginally penetrated whilst bound and blindfolded (ts 11, 2 October 2009).
22 Apart from an on-going propensity for sexual deviance, the appellant had, in the 30 years before his offending, displayed generally good character, and he had a history of service to the community. In 1977 he was convicted of an offence involving 'evil designs', which concerned an attempt to procure a 15-year-old girl to appear in a pornographic film. The appellant was apprehended by police when he attended the child's home.
23 After the appellant was charged by police with the offences in question, he commenced counselling with Ms Leonie Coxon, a clinical psychologist, ceased access to the internet and began to develop some insight into his offending. Ms Coxon said in a report dated 3 August 2009 that the appellant had a 'sex addiction', and psychological tests she administered reflected his 'sexually deviant behaviours'.
I hold to the view that your offending, whilst I refrain from saying absolutely that it is in the worst category, it is nevertheless near to the worst category so far as this type of offending is concerned (ts 21, 6 November 2009).
25 Counsel for the appellant submitted that the sentencing judge's finding was in error. He relied on these assertions:
(a) The offending occurred over a relatively short period of time (about three months) and concerned only one 'victim'.
(b) Although the 'victim' was not in fact a real child, the offending was not aggravated by a real child having been exposed to the offending.
(c) Although there was a level of perversion in the language used by the appellant, it was not at an 'extreme level'.
26 The sentencing judge referred to the decisions of this court in The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310, The State of Western Australia v Freemantle [2008] WASCA 98 and The State of Western Australia v Porter [2008] WASCA 154. His Honour then said that there was 'no established range for sentences for this type of offending' (ts 21, 6 November 2009).
27 Counsel for the appellant submitted that the sentencing judge's finding that 'there is no established range for sentences for this type of offending' (ts 21, 6 November 2009) was erroneous. He sought to make good that proposition by referring to the decisions of this court in Reid v The State of Western Australia [2009] WASCA 237, Collier, Freemantle, Speering v The State of Western Australia [2008] WASCA 266 and Porter.
28 Counsel accepted that, at least in some respects, the offending in the present case was more serious than in 'most of the decided cases'. However, he maintained that the circumstances of the appellant's offending were 'not so manifestly more serious' than the offending in other decided cases to justify the sentence imposed. According to counsel, there were some aggravating features in other decided cases that did not exist in the present case.
29 The sentencing judge referred to the totality principle and said that it required the total effective sentence to bear a proper relationship to the overall criminality involved in all of the offences (ts 21, 6 November 2009). His Honour added that the court will not impose a crushing sentence (ts 21, 6 November 2009). Later, he said that the overriding principle is that the aggregate sentence, even when punishment is being imposed for multiple offences, should fairly and justly reflect the total criminality of the offending conduct (ts 22, 6 November 2009).
30 Counsel for the appellant submitted that although the sentencing judge 'purported' to have regard to the totality principle, and made orders for all except one of the sentences to be served concurrently, the total effective sentence actually imposed was 'excessive in all the circumstances of the case'.
Section 204B of the Code and relevant authorities
31 Section 204B of the Code was inserted by s 4 of the Criminal Code Amendment (Cyber Predators) Act 2006 (WA).
computer generated image means electronically recorded data capable, by way of an electronic device, of being produced on a computer monitor, television screen, liquid crystal display or similar medium as an image, whether or not the image is in the form of text;
electronic communication has the meaning given to that term in section 5 of the Electronic Transactions Act 2003;
indecent matter includes an indecent film, videotape, audiotape, picture, photograph, or printed or written matter;
picture includes an image, whether or not it is a computer generated image;
victim means a person whom an adult, contrary to subsection (2) or (3), intends to -
(a) procure to engage in sexual activity; or
(b) expose to any indecent matter.
(i) procure a person under the age of 16 years to engage in sexual activity; or
(ii) expose a person under the age of 16 years to any indecent matter,
(i) procure a person the offender believes is under the age of 16 years to engage in sexual activity; or
(ii) expose a person the offender believes is under the age of 16 years to any indecent matter,
is guilty of a crime and is liable to imprisonment for 5 years.
(i) procure a person under the age of 13 years to engage in sexual activity; or
(ii) expose a person under the age of 13 years to any indecent matter,
(i) procure a person the offender believes is under the age of 13 years to engage in sexual activity; or
(ii) expose a person the offender believes is under the age of 13 years to any indecent matter,
is guilty of a crime and is liable to imprisonment for 10 years.
(4) For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), a person engages in sexual activity if the person -
(a) allows a sexual act to be done to the person's body;
(b) does a sexual act to the person's own body or the body of another person; or
(c) otherwise engages in an act of an indecent nature.
(5) The acts referred to in subsection (4) are not limited to penetration or acts involving physical contact.
(6) For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), it is not necessary to prove that the accused person intended to procure the victim to engage in any particular sexual activity.
(7) If, despite subsection (6), an intention to procure the victim to engage in any particular sexual activity is alleged, it does not matter that, because of circumstances not known to the accused person, it is impossible in fact for the victim to engage in the sexual activity.
(8) For the purposes of subsection (2) or (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
(9) Evidence that the victim was represented to the accused person as being under the age of 16 years, or 13 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused person believed the victim was under that age.
(10) It is a defence to a charge under subsection (2)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 16 years.
(11) It is a defence to a charge under subsection (3)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 13 years, but that does not prevent the person from being convicted of an offence under subsection (2).
33 The Attorney General, the Hon JA McGinty, said, in the course of his second reading speech in relation to the Bill:
New section 204B in the Criminal Code will provide a means to target those who seek to exploit children through contact on the Internet and other types of electronic communication. Predators will frequently go to online Internet chat sites, often posing as children, and attempt to engage a child victim in a conversation, and to groom the child for planned sexual exploitation. After gaining the trust of a child, the predator may attempt to arrange an actual meeting with the child for the purpose of engaging in sexual acts with the child. Alternatively, the predator may sexually exploit a child by having the child digitally photograph herself or himself and send these images via email or a mobile phone. The predator may convince the child to engage in indecent acts and describe these acts via text communication, or may move the communication off-line and conduct it via digital phone conversations and SMS - short message service - text.
...
The offence will also occur in cases in which the offender has supplied a child with indecent material; a common method used in grooming to lower a child's inhibitions to the abuse.
...
A crucial aspect of this legislation is that it provides police with the ability to stop a child from being abused before it happens. Police will have the capacity to go online and conduct operations against offenders by posing as children. Offenders need only believe that they are communicating with a child and, unless the offenders can show otherwise, they will be held to have a belief that they are communicating with a child of the particular age that is communicated to them. The offender commits the offence even when the child victim turns out to be a police officer.
This legislation will provide a deterrent to those seeking to prey on children. If predators know that the children they intend to prey upon may be police officers, it is far more likely that children will be left alone.
(See Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005, 6725, 6726, 6732.)
34 In The State of Western Australia v Johnson [2009] WASCA 224, I made the following observations (Owen & Wheeler JJA agreeing) in relation to s 204B:
Four points as to the purpose or object underlying s 204B may be discerned from this passage in the Attorney General's speech. First, Parliament was concerned with the apparent prevalence of predators seeking to use the internet and other types of electronic communication for the purpose of engaging a potential child victim in a conversation, gaining the child's trust, grooming the child for planned sexual exploitation, and attempting to arrange an actual meeting with the child for the purpose of engaging in sexual activity with the child. Secondly, Parliament was concerned with the apparent prevalence of predators using the internet and other types of electronic communication to persuade potential child victims to engage in indecent acts and to describe these acts by means of electronic communication with the predator. Thirdly, Parliament was concerned with the apparent prevalence of predators using the internet and other means of electronic communication to supply children with indecent material (a common method used in grooming to lower a child's inhibition to engaging in sexual activity) and to persuade children to send digital photographs of themselves to the predator by electronic means. Fourthly, s 204B was intended to prevent child abuse. The offences created by s 204B are, in essence, preventative offences. They merely require the existence of an intent to procure a child to engage in sexual activity or an intent to expose a child to indecent matter. Pursuant to s 204B, police officers may, in using the internet and other electronic communications, pose as children. Section 204B merely requires that an offender believe that he or she is communicating with a child.
The offences created by s 204B may be compared to and contrasted with s 320(3) of the Code which provides that a person who procures, incites, or encourages a child under the age of 13 years to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 20 years. A similar offence is created by s 321(3) in relation to a child over the age of 13 years and under the age of 16 years. See also s 320(5) and s 320(6) and s 321(5) and s 321(6). The provisions of s 320 and s 321 are concerned with, relevantly, actual procurement (or attempts to procure: see s 552 read with s 4 of the Code) of real children.
The offences created by s 204B may also be compared to and contrasted with s 204A of the Code. By s 204A(2), a person who, with intent to commit a crime, shows offensive material to a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 5 years. 'Offensive material', as defined in s 204A(1), is more egregious in nature than 'indecent matter', as defined in s 204B(1). The provisions of s 204A are concerned with, relevantly, showing offensive material to real children [34] - [36]. (emphasis added)
35 In Speering, the appellant was convicted, after pleading guilty under the fast-track system, on two counts of using an electronic communication with intent to expose a person he believed to be under the age of 13 years to indecent matter, contrary to s 204B(3)(b)(ii), and one count of using electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i). The appellant was aged 29 years at the time of the offending and he believed he was communicating with a 12-year-old girl. He sent the child persona a photograph of an erect penis which appeared to have been taken shortly after ejaculation. He conversed with the child persona about masturbation; told her that he was aroused, had an erection and needed to orgasm; and, on several occasions, suggested to her that she should masturbate and gave her explicit instructions as to how this should be done. The appellant had favourable antecedents. He appeared otherwise to be of good character, he had genuine remorse, he had a good education and was in stable employment, and he was a single man who lived in the family home with his brother who was said to require care and attention because of a debilitating mental condition. Psychometric testing revealed that the appellant had 'significantly elevated anxiety and some indication of low mood'. There was also evidence that he had a 'severe personality disorder', although this was not pronounced. A psychologist considered that he was in the medium to high-risk category for re-offending. The appellant was sentenced to 12 months' imprisonment on each count. The sentences on two of the counts were ordered to be served concurrently but the sentence on the other count was made cumulative. Accordingly, the net effective head sentence was 2 years' imprisonment. A parole eligibility order was made. The appellant's appeal against sentence was dismissed.
36 Steytler P (McLure JA agreeing) referred to the earlier decisions of this court in Collier, Freemantle and Porter. His Honour said:
The seriousness with which the legislature views behaviour of this kind is reflected by the fact that the offence is one of using electronic communication with intent to procure the person in question to engage in sexual activity or to expose the person in question to indecent matter. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity or exposed to indecent matter: see, in this respect, The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 [25]. Also, s 204B(8) provides that, for the purposes of subs (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
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: Collier [43]; The State of Western Australia v Freemantle [2008] WASCA 98 [8]; The State of Western Australia v Porter [2008] WASCA 154 [8]. 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: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321]; Collier [42]; Freemantle [9], [41] and Porter [8]. 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. However, in the present case it seems to me that the serious nature of the offences, taken together with the age of the appellant and his belief concerning the age of the 'child', demanded a sentence of immediate imprisonment, even allowing for the factors in mitigation, particularly the appellant's mental difficulties [10] - [11]. (original emphasis)
37 In Speering, Miller JA noted that Collier, Freemantle and Porter involved prosecution appeals against sentence to which the common law principles governing State and Crown appeals were applicable. That is, Collier, Freemantle and Porter were decided before the introduction of s 41(4)(b) of the Criminal Appeals Act 2004 (WA).
38 In Collier, the respondent was convicted, on his plea of guilty, of three counts of using electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i). He was sentenced, on each count, to a term of 2 years' imprisonment, to be served concurrently with the other terms, conditionally suspended for a period of 2 years. This court allowed the State's appeal. The sentences imposed by the sentencing judge were set aside and, instead, the respondent was sentenced to 18 months' imprisonment on each count, to be served immediately and concurrently with each other. A parole eligibility order was made.
39 Steytler P (McLure & Miller JJA agreeing) reviewed decisions on comparable legislation in other Australian jurisdictions. His Honour then said:
In the present case, unlike the Queensland cases to which I have referred, the maximum penalty capable of being imposed was, as I have said, one of 10 years' imprisonment in respect of each count. Moreover, the offences were serious. The respondent was 12 years older than the complainant. He admitted, during the course of his interview with the police, that he had an interest of a sexual nature in pre-pubescent females. His interest was borne out by the fact that he was found to be in possession of various images of pre-pubescent girls in sexual poses, including one of a 4-year-old girl. Also, the respondent was persistent in his questioning of the complainant in matters of an overtly sexual nature, notwithstanding her apparent naiveté. He encouraged her to masturbate, and told her how to do this, on two separate occasions. He offered to show his penis to the complainant. He gave her instructions on sexual intercourse. He arranged to meet with the complainant in order to have sexual intercourse with her. While he was, as I have said, uncertain, during the videotaped interview, what would have happened had he been met by a 12-year-old girl, his comments, taken together with the content of his communications with 'Amy', suggest that, if such a girl had been willing, there is at least some prospect that he would have had sexual intercourse with her. While the respondent was, of course, only to be sentenced in respect of the offences charged, the prospect that this might have happened graphically reveals the need for deterrent sentences in respect of this kind of offending. That is especially so given that such offences are difficult to detect.
The personal circumstances and antecedents of the respondent are favourable. However, it has often been 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: see, for example, VIM [320] - [321] and the cases there cited.
It seems to me that, even taking into account the matters favourable to the respondent, the sentence imposed was so manifestly inadequate as to demand the intervention of this court, notwithstanding the constraints inherent in a State appeal. This was a very serious example of this kind of offending, for the reasons that I have mentioned. In those circumstances there was, in my respectful opinion, no basis for the imposition of a sentence of suspended imprisonment, whether conditional or otherwise. Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. It is important to say, as clearly as one can, 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. As with offences concerning possession of child pornography (as to which see Hutchins v The State of Western Australia [2006] WASCA 258), there is a paramount public interest in protecting children from sexual abuse [41] - [43].
40 In Freemantle, the respondent pleaded guilty to four counts of using electronic communication with intent to expose a child he believed to be under the age of 13 years to indecent material, contrary to s 204B(3)(b)(ii), and one count of using electronic communication with intent to procure a child he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i). He was placed on an intensive supervision order for a period of 18 months with supervision and programme requirements. An order was made that he undertake 80 hours of unpaid community work. The State's appeal against sentence was allowed. This court re-sentenced him to 12 months' imprisonment on each count, to be served concurrently and immediately, with eligibility for parole.
[T]he respondent had used his home computer to enter into 10 online 'conversations' with a person he believed to be a 12-year-old girl but who was in fact a police officer. The respondent's antecedents were good. He was 28 years old at the time of the offences. He is married, with a young son. He is educated and in stable employment. He has no prior convictions for offending of this kind or, since 1998, of any kind. Such convictions as he had were minor.
The offending behaviour was serious. The conversations were sexually graphic, even though the 'child' was seemingly innocent when it came to sexual matters. The respondent told the 'child' that he would like to perform cunnilingus on her. He asked her whether she would perform fellatio on him. He encouraged her to masturbate and gave her instructions on how to do so. On two occasions he sent her a graphic colour image of a semi-erect penis ejaculating. He suggested to the 'child' that she should bring a friend to also engage in sexual relations with him. In one of the communications he said that he was having sex with a 12-yearold girl who had performed fellatio on him and allowed him to perform cunnilingus on her. He asked the 'child' to meet him for the purpose of engaging in sexual acts.
There is one important mitigating factor in the offending behaviour. It is that the respondent voluntarily 'blocked' the 'child' from his MSN account in February 2007. He did not again communicate with her and never met with her.
The respondent attempted to explain his behaviour by saying that he was having problems with his wife until February 2007, that he was emotional and that he was drinking every day after work. I should mention, in this last respect, that many of the conversations occurred in the early afternoon and one of them occurred in the morning.
A psychological report prepared in respect of the respondent for sentencing purposes suggests that he has a simplistic view of his sexual offending and that he does not fully recognise the seriousness of his actions or the impact that conduct of this kind can have on a child. He presents as a medium to low risk of sexual reoffending [3] - [7].
After referring to Collier and VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321], Steytler P concluded:
In my opinion, this is a case that demanded a term of immediate imprisonment, even allowing for the fact that the respondent voluntarily stopped his offending behaviour ... The sentence failed adequately to reflect the seriousness of the offending behaviour and placed undue emphasis on factors personal to the respondent. It also seems to me, with due respect, that the sentencing judge erred in finding that the respondent did not have paedophilic tendencies. In my opinion, the respondent's offending behaviour is explicable only by paedophilic tendencies [10].
42 In Porter, the respondent pleaded guilty on the fast-track to three counts of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity, contrary to s 204B(2)(b)(i), and four counts of using electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter, contrary to s 204B(2)(b)(ii). The respondent was then aged 24 years and engaged a police officer, whom he believed to be a 13-year-old girl, in a number of sexually explicit conversations over the internet. The conversations occurred between 22 January 2007 and 20 April 2007. The child persona presented as sexually naive. The conversations indicated an intention by the respondent to procure the child persona to engage in masturbation. He believed that she did as he asked. During the conversations he exposed himself to the child persona on numerous occasions by means of his web camera. On one of these occasions he masturbated to ejaculation. On another occasion he persuaded the child persona to telephone him while he masturbated. The respondent's antecedents were favourable. Psychological reports prepared in respect of him suggested (surprisingly, in the view of this court) that he had no specific interest in underage girls. He was regarded as at a low risk of re-offending. The State's appeal against the sentences of 12 months' imprisonment on each count, to be served concurrently, suspended for a period of 12 months, was allowed.
The maximum sentence prescribed for each offence committed by the respondent is a term of 5 years' imprisonment. Standards of sentencing customarily observed with respect to offences of that kind have recently been examined by this court in Collier and in The State of Western Australia v Freemantle [2008] WASCA 98. Those cases dealt with more serious offences (both involved similar offences concerning a person believed to be under 13 years of age). However, they indicate that, in the ordinary case, an adult person committing offences of the present kind, at least if they are committed in respect of a person believed to be only 13 years old, can expect to receive a term of immediate imprisonment: Collier [43]; Freemantle [8], [40]. It should be borne in mind, in cases involving sexual offending against children, that the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321]; Collier [42]; Freemantle [9], [41].
In this case, the depravity of the respondent's repeated behaviour, extending over a period of three months and directed at someone believed by him to be a sexually inexperienced and naïve 13-year-old child, demanded a term of immediate imprisonment. That was so notwithstanding the respondent's favourable antecedents and expressions of remorse, and accepting that he presents a low risk of re-offending. There was, in my respectful opinion, no basis upon which it could have been found that it was appropriate to impose suspended sentences of imprisonment, having regard to the serious and repetitive nature of the respondent's offending [8] - [9].
44 This court set aside the sentences imposed by the sentencing judge and imposed, instead, a sentence of 12 months' imprisonment on each count, to be served concurrently and immediately, with eligibility for parole.
45 In Johnson, I said (Owen & Wheeler JJA agreeing) that in sentencing for offending against s 204B it is necessary, in each case, to evaluate the degree of seriousness of the offending, and the extent to which the offender poses a risk to real children and is at risk of re-offending under s 204B. An attempt by an offender to meet with the child or child persona, after having engaged in a grooming process in the course of the electronic communications, will often indicate that the offender is at a high risk of offending against real children. Generally, these features will mark especially serious contraventions of s 204B. Although, in a particular case, the personal circumstances of the offender (even highly favourable antecedents and otherwise good character) may carry little weight, they are always a relevant consideration. This observation applies also to an offender's prospects of rehabilitation [95]. The sentencing judge in Johnson imposed a suspended term of imprisonment on a young man who had offended against s 204B, and her Honour's decision was not disturbed on appeal.
46 In Speering, Collier, Freemantle and Porter, reference was made to VIM as authority for the proposition 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. The court was not, of course, equating the offences created by s 204B with the offences under consideration in VIM. The offender in VIM was convicted of 11 counts of rape, 13 counts of indecent assault and seven counts of sexual penetration without consent in relation to his step-daughters. The offending commenced when the complainants were about 12 or 13 years of age. Plainly, the offences under consideration in VIM were significantly more serious than the offences created by s 204B.
47 I should mention two other decisions of this court which were decided after Johnson.
48 In Reid, the offender was convicted, on his plea of guilty, of 14 counts of contravening s 204B(3)(b). Four counts related to using electronic communication with intent to expose a person whom he believed to be under the age of 13 years to indecent matter and 10 counts related to using electronic communication with intent to procure a person whom he believed to be under the age of 13 years to engage in sexual activity. The sentencing judge imposed a sentence of 15 months' imprisonment in relation to each count. Three of the terms of imprisonment were ordered to be served cumulatively. In the result, the total effective sentence was 3 years 9 months, with parole eligibility. This court allowed the offender's appeal and re-sentenced him to a total effective sentence of 2 years 3 months' imprisonment.
49 The offender in Reid was aged 21 or 22 years at the time of the offending. He was 23 years of age when sentenced. Wheeler JA (McLure P & Owen JA agreeing) described the circumstances of the offences:
The first offence took place on 19 June 2007, and the last on 20 July 2007, a period of a little under five weeks. The offences fell into three categories. In some, the appellant engaged the child in conversation about sexual matters. For example, in the first conversation, he told the child that he would buy her a telephone (he had represented to the child that he had his own business, selling telephones), and that he was going to teach her lots of things, including kissing and watching pornographic movies. He said that while she was watching these movies, he would show her his cock and have her play with it. Conversations of this type resulted in the counts of intent to expose a child to indecent matter.
In other conversations, the appellant asked the child to masturbate, giving her instructions about how to do so. There were two of these conversations - counts 3 and 13 - and they resulted in charges of intent to procure a child to engage in sexual activity.
The remaining eight counts of intent to procure a person under the age of 13 to engage in sexual activity relate to conversations like the one on 27 June 2007 (count 6) in which he told the child that he was going to take her to his house, show her his penis, undress her and have oral and vaginal intercourse with her. Despite the expressions of intent in those conversations, and the discussions about meeting the child for the purposes of having sex with her, the State conceded at the time of the appellant's sentencing that he did not, in fact, make any attempt to meet the child. Further, between July 2007 and March 2008, when police attended his home and seized his computer tower, he made no further attempts to contact or converse with the child.
No attention seems to have been given, in the submissions on sentence made to the learned sentencing judge, to the question of precisely what the appellant's intention was in relation to this last category of conversations. His Honour made no finding about the appellant's intention.
By his plea, the appellant must be taken to have accepted that he had an intent to procure a child to engage in sexual activity. The indictment was in form defective, containing no reference to the appellant's intention, but before us senior counsel for the appellant declined to take any point in relation to the form of the indictment. The appellant's plea must therefore be regarded, for the purpose of sentencing, as if it had been a plea to an indictment in proper form.
It is perhaps not surprising that the appellant did not attempt to set up a positive case before the learned sentencing judge as to what his intention may have been, since the stance he had taken in the conversations with the Community Corrections Officer who prepared the pre-sentence report, and with the psychologist who prepared the pre-sentence psychological report, was that he had little or no recollection of the details of the conversations. He attributed his memory difficulties to his heavy use of methylamphetamine and associated lack of sleep at the time of the offending.
The State did not appear to assert, either before his Honour or before us, that it should be inferred that the appellant's intention was actually to engage the child in any of the sexual behaviour described in the conversations. That would not seem to be an inference reasonably open, having regard to the conceded lack of any actual attempt to make physical contact with the child for the purpose of engaging in such behaviour, and having regard to the fact that the appellant voluntarily ceased contacting the child, without making any attempt to meet her. For present purposes, therefore, I would conclude that the intention to be attributed to the appellant in relation to this category of offences is no more than a general intention to procure the child at some time to engage in some sort of sexualised behaviour [10] - [16].
50 The offender in Reid had poor antecedents. He had left school part way through year 12, had only worked briefly after that time, and he appeared to view drug dealing as his 'job'. He had a history of alcohol abuse and had been a heavy user of ecstasy and amphetamines. He had a prior criminal record which included offences of stealing, attempting to pervert the course of justice (for which he received a sentence of 12 months' imprisonment, suspended for 18 months), unlawful wounding, traffic offences and offences relating to breaches of court orders. He was sentenced to 9 months' immediate imprisonment as a result of having breached a suspended sentence for fraud and stealing offences. The psychological and pre-sentence reports were not favourable. He was assessed as being at a medium to high risk of re-offending.
51 Wheeler JA (McLure P & Owen JA agreeing) concluded:
Allowing for the fact that offenders in other cases generally had the benefit of significantly better antecedents, and earlier pleas of guilty, and allowing for the fact that the sentences in The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310, Freemantle and The State of Western Australia v Porter [2008] WASCA 154 resulted from the application of the principles which were then applicable to State appeals, an effective sentence somewhat longer than any of the other sentences might have been justified. However, a sentence which is 21 months in excess of the most severe of them (Speering, which was itself described as a 'severe' sentence), is, in my view, clearly inconsistent with these cases. I am satisfied that the total effective sentence is disproportionate to the total criminality of the appellant's offending [25].
52 In The State of Western Australia v Rose [2010] WASCA 31, the offender was convicted, on his plea of guilty, of two counts of using electronic communication with intent to procure a person whom he believed to be under 16 years to engage in sexual activity and one count of using electronic communication with intent to expose a person whom he believed to be under 16 years to indecent matter. The sentencing judge imposed a sentence of 18 months' imprisonment on each count, concurrent with each other, suspended for a period of 18 months. On appeal by the State, this court allowed the appeal, set aside the sentencing judge's sentencing disposition and re-sentenced the offender 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. The total effective sentence was therefore 12 months' immediate imprisonment.
53 Newnes JA described the circumstances of the offences:
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.
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.
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.
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.
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.
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.
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 [8] - [14].
54 The offender in Rose was aged 25 years at the time of offending. He left school when he was aged 13 years and then attended a learning facility for children with difficult life circumstances. Since then, he had a variety of unskilled jobs, all of them of relatively short duration. He had a history of behavioural problems. A psychologist assessed him as being of lower than average intelligence and as being immature. He was at a medium to high risk of sexual re-offending.
55 Newnes JA (Owen & Wheeler JJA agreeing) expressed the view that the overall offending in Rose was 'towards the upper end of the range of seriousness' [38]. His Honour gave four reasons in support of this view:
(a) the substantial age difference between the offender and the child persona;
(b) the offender transmitted sexually explicit material to the child persona by way of webcam footage of the offender masturbating and exposing his penis;
(c) the offender twice made contact with the child persona by telephone and engaged her in discussions of a sexual nature; and
(d) the offender arranged to meet the child persona for the purpose of sexual activity, apparently intending that they should have unprotected sexual intercourse [38].
56 The offender's attempts in Rose to meet the child persona appear to have been critical to Owen JA's decision to join with Wheeler and Newnes JJA in allowing the appeal. His Honour said that had it not been for these attempts, he 'may well have taken a different view [as] to the appropriate disposition of [the] appeal' [3].
57 In the present case, the appellant's offending was, without doubt, very serious. As I noted in Johnson, s 204B creates offences that are intrinsically serious [94]. The very serious nature of the appellant's offending is apparent from the following:
(a) the appellant's use of 4 different personae which were carefully and purposely crafted and used in order to facilitate the grooming of the 'victim' (ts 3 - 4, 2 October 2009; ts 4 - 5, 6 November 2009);
(b) the appellant arranged a meeting with the 'victim' which he attended after having 'prepared' his vehicle in accordance with communications he had had with the 'victim' (the radio was tuned to the 'victim's' favourite radio station and he had brought with him her favourite chocolate bar) (ts 19, 6 November 2009);
(c) contrary to the appellant's assertion, the circumstances of the offences evinced an intention by him to pursue sexual contact with the 'victim' at the meeting (ts 10 - 11, 2 October 2009; ts 6, 6 November 2009);
(d) the age disparity between the appellant and the 'victim', being 50 years;
(e) the length of the offending behaviour, being a 3-month period from early July 2008 to early October 2008;
(f) the number of offences committed: the s 204B offences were committed over 15 separate days, sometimes on multiple occasions on one day, using multiple personae;
(g) the appellant's offending was not an isolated episode: over 10 - 15 years he had used the internet to pursue an entrenched sexual interest in young females (ts 11 - 12, 26 - 27, 2 October 2009; ts 6 - 7, 6 November 2009; report of the clinical psychologist, Ms Leonie Coxon, dated 3 August 2009; appellant's letter dated 10 September 2009);
(h) the appellant's offending included the electronic transmission of offensive or pornographic material (ts 4 - 5, 2 October 2009); and
(i) child pornography was found on the appellant's computer (counts 20 and 21, ts 11, 2 October 2009).
58 Also, there were elements of perversion in the appellant's offending in that:
(a) in the communication the subject of count 12, the appellant, through the persona of a 14-year-old girl named Jessica, told the 'victim' about girls having sexual connection with dogs (ts 8, 2 October 2009); and
(b) in the communication the subject of count 13, the appellant, through the persona of a 33-year-old man named Mike, suggested to the 'victim' that he had arranged multiple sexual partners for the child persona, Jessica (ts 8, 2 October 2009).
59 Further, the language used by the appellant in communicating with the child persona was frequently crude, salacious and offensive.
60 The appellant accepted that he had 'paedophile tendencies'. In my opinion, there is a significant risk of the appellant re-offending in a similar manner unless he addresses these paedophile tendencies, on an ongoing basis, with psychiatric and psychological treatment.
61 In The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129, the majority (Wheeler & Pullin JJA, Owen JA agreeing) said, in summary, that the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the Amendment Act), which repealed cl 2 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), had the following effects:
(1) In cases falling within the 'worst category' it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular 'worst category' case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.
(2) In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.
(3) It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.
(4) Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.
This list may not be exhaustive, but it is sufficient for the purposes of the present case [43]. (original emphasis)
62 Despite the very serious nature of the s 204B offences committed by the appellant, I am satisfied that they were not in the 'worst category' for the purposes of the majority's decision in BLM [42] - [43]. The appellant's offending was not in the 'worst category' in that the offending concerned only one 'victim', the offending was not aggravated by the 'victim' being a real child, and although the appellant's language in communicating with the 'victim' involved a degree of perversion, it was not at an extreme level.
63 Counsel for the State conceded that if the sentencing judge sentenced the appellant for the s 204B offences on the basis that they were in the 'worst category' then his Honour would have been in error (appeal ts 8).
64 Although the sentencing judge did not assert that the appellant's offending was in the 'worst category', but merely said it was 'near to' the worst category, it is apparent from the sentencing outcome that his Honour must have sentenced on the basis that the offending was, in fact, in the 'worst category'. This is to be inferred from the following. First, the maximum penalty for each offence against s 204B is, relevantly, 5 years' imprisonment. Secondly, the appellant pleaded guilty on the fast-track system (ts 22, 6 November 2009). Fast-track pleas of guilty in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37] (Steytler P, Wheeler, McLure & Buss JJA). Thirdly, although, as I have mentioned, the personal circumstances of an offender carry little weight, they are always a relevant consideration and, in the present case, apart from his history of sexual deviance, the appellant had reasonably favourable antecedents. Fourthly, for the reasons I have given, the offending against s 204B was not in the 'worst category'. Fifthly, despite the second, third and fourth factors that I have just mentioned, the sentence for each of counts 16, 17, 18 and 19 was 3 years' imprisonment, being merely 40% less than the maximum available penalty.
65 In my opinion, it is to be inferred that the sentencing judge made the specific error alleged in ground 1 of the appeal. The existence of the error entitles this court to intervene, by setting aside the sentencing decision and re-sentencing the appellant, if it is satisfied that a different sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act.
66 In my opinion, a different sentence should have been imposed on the appellant. I have arrived at this conclusion after evaluating the following:
(a) the maximum penalty for each offence against s 204B was, relevantly, 5 years' imprisonment;
(b) the appellant's offending against s 204B, whilst very serious, was not in the 'worst category';
(c) the standards of sentencing customarily observed with respect to the offences in question, as disclosed by my review of relevant sentencing decisions by this court in other cases;
(d) the pernicious features of the appellant's offending which I have described, and his risk of re-offending; and
(e) the appellant's pleas of guilty on the fast-track system, his reasonably favourable antecedents (apart from his on-going propensity for sexual deviance), and the steps he has taken towards rehabilitation.
67 Ground 1 of the appeal having been made out, I can deal very briefly with grounds 2 and 3.
68 It is apparent from my review of the decisions of this court in relation to s 204B that this court has provided detailed guidance on sentencing for s 204B offences. Further, the decided cases deal with a range of offending which is variable in its seriousness. Collier has some features that are relevantly comparable to the present case, even though Collier concerned a child persona aged 12 years, and involved a State appeal against sentence when the common law principles governing that kind of appeal were applicable. There is an established range of sentences for offending against s 204B. Ground 2 has been made out.
69 As to ground 3, it is sufficient in the circumstances to note that, as a result of the sentencing judge's error in sentencing the appellant on the basis that his offending against s 204B was in the 'worst category', the total effective sentence imposed by his Honour was unjustifiably in excess of that required appropriately to mark the appellant's overall criminality. Ground 3 has been made out.
70 Finally, in the context of the merits of the appeal, it is appropriate to make these additional observations.
71 First, the mere fact that an individual sentence is within the range of other sentences imposed for offences of the kind in question does not necessarily establish that no express or implied error has been made by the sentencing judge. Similarly, the mere fact that an individual sentence is outside that range does not necessarily establish that the judicial discretion has miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170 [147] (Buss JA). All relevant sentencing factors (in particular, the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender) must be evaluated and synthesised in deciding whether an individual sentence is manifestly excessive or not.
72 Secondly, although none of the grounds of appeal in the present case alleged that the sentencing judge had failed to have regard to the minimum terms required to be served under the range of sentences that has been established for offending against s 204B (see BLM [43]), it is apparent from his Honour's sentencing remarks that he did not take this consideration into account.
The result of the appeal and the re-sentencing of the appellant
73 Leave to appeal should be granted on grounds 1, 2 and 3. The appeal should be allowed and the sentencing decision of the sentencing judge should be set aside. This court has the materials necessary to re-sentence the appellant. The seriousness of the offending requires the imposition of terms of immediate imprisonment. No other sentencing option is open.
74 On counts 1- 19, I would impose sentences of immediate imprisonment, as follows:
(c) counts 16 - 19: 2 years 4 months on each count.
75 The overall criminality of the appellant would properly be reflected by a total effective sentence of 3 years' immediate imprisonment. Solely for the purposes of achieving a just outcome on totality (Mill v The
Queen [1988] HCA 70; (1988) 166 CLR 59, 63; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]), I would impose a sentence of 8 months' imprisonment on each of counts 20 and 21. The fine of $1,000 for the offence the subject of the s 32 notice should stand.
76 The individual sentences on counts 1 - 19 should be served concurrently with each other, and the sentences on counts 20 and 21 should be served concurrently with each other. I would, however, order the sentence for count 20 to be served cumulatively on the sentence for count 19. This results in a total effective sentence of 3 years' immediate imprisonment. The sentences on counts 1 - 19 should be taken to have commenced on 2 October 2009.
77 The appellant should remain eligible for release on parole. He will be eligible for release upon having served 1 year and 6 months calculated from 2 October 2009.
(2004) 78 ALJR 616
(2005) 31 WAR 1
(1988) 166 CLR 59
(2008) 36 WAR 393
(2009) 256 ALR 129