SCHAPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 178 (9 September 2010)

SCHAPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 178 (9 September 2010) - WASCA 2010 case summary — Zoe

[83]

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)

[86]

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)

[90]

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].

[92]

[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].

[103]

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].

[109]

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].

At a glance

Court

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Before

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Judgment (157 paragraphs)

SCHAPER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 178 (9 September 2010)

Legislation Cited (6)

Cases Cited (5)