SHI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 197 (23 November 2020)

1. The appellant was born on 15 September 1991. He was 27 years old at the time of the offending and 28 years old at the time of sentencing. The appellant was born in Shanghai and moved to Australia with his mother when he was 16 years old.
2. The appellant presented as a person with a high degree of social isolation.
3. The appellant was an only child. His father died when he was 6 years old. As a child, the appellant was mostly raised by his grandparents. The appellant's mother worked long hours to support him. The appellant's mother married a Chinese man living in Australia. The appellant, then 16 years of age, moved to Australia to be with the family. The appellant's mother and stepfather have since divorced. The appellant has a stepbrother (about 10 years older than him) and a stepsister (about 18 years younger than him). The appellant was close to his stepsister and provided her with help and support.
4. In a psychological report, the appellant was recorded as saying that he had difficulty with schooling from the junior high school level. He did not adjust well to living in Australia due to language and cultural barriers. The appellant moved back to China after six months to live with his grandmother. However, he returned to Australia at 18 years of age. Although studying English at TAFE for 12 months, and having been in Australia for nearly 12 years, the appellant spoke very little English. Despite the appellant's language difficulties, he had been gainfully employed as a ceiling fixer, predominantly in his stepfather's business. The appellant had acquired an investment property and a home in which he lived with his mother and stepsister. However, the stress of servicing associated loans, and periods of low moods and dejection, had contributed to the appellant downloading and collecting pornography.
5. The appellant described himself as being lonely since he had moved to Australia. He had lost contact with his friends in China and made few friends in Australia. His main social supports were his mother, stepfather and stepbrother. The appellant's only other social interaction was with co‑workers but he had no close relationships with them. He had never been in a relationship or had sexual interactions with another person. To meet his sexual needs the appellant reported regular use of adult pornography.
6. In his interview with the psychologist, the appellant reported that he viewed and collected pornography to cope with his low self-esteem and to manage his loneliness. The appellant had a history of collecting various items since his teens as a way to bolster his self-esteem and to cope with his feelings of loneliness. While this had commenced with gaming consoles and comic books, it had expanded, in recent years, to include currencies, music and pornography. The appellant identified to the psychologist that building a collection gave him a sense of satisfaction as he had something that others did not.
7. The psychologist described the appellant as being 'socially isolated and emotionally lonely'.[12] In the psychologist's opinion, the appellant had treatment needs and a number of social and emotional deficits which had contributed to him collecting child exploitation material and obscene images.[13]
8. Otherwise, the psychologist concluded that:
   1. It was difficult to draw firm conclusions about the nature of the appellant's sexual interests[14] (although the appellant denied having any sexual interest in children).[15]
   2. The images served a function apart from sexual interest or arousal - the possession of the images gave the appellant a sense of achievement that he was unable to achieve in other areas of his life.[16]
   3. Collecting something that was taboo, which others did not have, was rewarding in itself and most likely elevated the appellant's low self-esteem.[17]
   4. The appellant was in the average risk level for being charged or convicted of another sexual offence.[18]
9. At sentencing the appellant presented character references from a minister of the Chinese Methodist Church and his mother. The appellant was a good son to his mother. The sentencing judge accepted that the appellant had supportive family in the community. The minister's reference mentioned that the appellant had been baptised in November 2019 and that he had been attending weekly worship since that time.

1. In submissions to the sentencing judge, then counsel for the appellant accepted that the only appropriate disposition was a term of imprisonment.[19] It was contended, however, that the term could be conditionally suspended.[20] The State contended that, having regard to the seriousness of the offending, the only appropriate sentence was one of immediate imprisonment.[21]
2. The sentencing judge referred to the circumstances of the offending.[22] The sentencing judge said that she had viewed a sample of the child exploitation material.[23] Her Honour summarised the nature of the material[24] and referred in detail to two of the videos.[25] Having so reviewed and referred to the material, and having regard to the statement of material facts, the sentencing judge stated that she considered this to be a very serious example of offending of this kind.[26] There was no challenge to this characterisation on appeal. Counsel for the appellant accepted this to be the case at sentencing.[27] At the appeal hearing senior counsel for the appellant accepted, quite frankly, that he did not come to argue that the offending was not in the upper echelon of seriousness for this type of offence.[28]
3. The appellant relied on the fact that the State did not assert that he was positively aware that it was against the law in Western Australia to possess the material. The appellant also said that he was not deliberately seeking out child exploitation material. Rather, it arrived while he was downloading other legal pornography. However, the appellant accepted that he did open the files and he was aware of what the material contained, having looked at it once or twice and deriving some satisfaction from doing so. The sentencing judge concluded that no right-thinking person could have accepted that the degrading and disgusting treatment of children, which occurred in the videos that the appellant possessed, was acceptable.[29]
4. The sentencing judge referred to the appellant's personal circumstances including that which was apparent from a pre-sentence report and the psychological report.[30]
5. The sentencing judge did not find any aggravating factors.[31] Her Honour found that the offending was mitigated by:
   1. An early plea of guilty - the appellant was afforded a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[32]
   2. Remorse.[33]
   3. A very minor prior criminal record (all prior offences being driving related) which meant that the appellant was essentially to be treated as a first offender.[34]
   4. Onerous conditions of imprisonment insofar as the appellant was a first offender and spoke very little English.[35]
6. The sentencing judge accepted that the appellant had an 'average' risk of reoffending. Her Honour identified risk factors being the appellant's social isolation and lack of attendance to any rehabilitation.[36]
7. The sentencing judge referred to general sentencing principles and the applicable sentencing principles for an offence of the type committed by the appellant.[37] It is not necessary to repeat what was said by the sentencing judge in this regard. There is no allegation of express error. It suffices to state that her Honour referred to the relevant sentencing principles in orthodox terms. Having done so, and emphasising the seriousness of the offending, the sentencing judge first concluded that she was positively satisfied that a term of imprisonment was the only appropriate sentence and that she would impose a term of 14 months.[38] The sentencing judge then referred to the possibility of suspension. However, looking again at all the relevant sentencing factors, the sentencing judge concluded that, despite the mitigating factors, it was inappropriate to suspend the term of imprisonment given the seriousness of the offending. The sentencing judge stated that she was positively satisfied that the term of imprisonment ought to be served immediately.[39]
8. The appellant had served no time in custody. Accordingly, his sentence commenced on 11 June 2020. The appellant was made eligible for parole.

1. The appellant's notice of appeal was lodged out of time. On 4 September 2020 Buss P granted an extension of time within which to appeal. Buss P had earlier referred the application for leave to appeal on the ground in the appellant's case to the appeal hearing.
2. The single ground of appeal reads:

The sentence imposed by the learned sentencing judge was manifestly excessive in all the circumstances of the case.

1. The appellant submitted that the sentencing judge erred by failing to suspend, either entirely or conditionally, the term of imprisonment imposed on him. The appellant contended in written submissions that a suspended sentence would have been an appropriate disposition in all the circumstances of the case - he being a person of prior good character, with a good work history and who supported his family. It was said that the offending appeared to be an anomaly and not symptomatic of a sexual attraction to children.
2. The appellant relied on the cases of Shelley v The State of Western Australia and Cluett v The Queen[40] and referred to Dartnall v The State of Western Australia.[41]
3. In submitting that a conditionally suspended term of imprisonment would have fulfilled the sentencing considerations of general deterrence and punishment, while allowing the appellant to address his treatment needs, senior counsel for the appellant pointed to the following:
   1. The appellant was a man of prior good character with favourable antecedents.
   2. The appellant was 28 years old at the time of sentencing.
   3. The appellant had not paid to access the materials and it did not appear that he intended to further disseminate the materials.
   4. The appellant denied any sexual attraction to children.
   5. The appellant cooperated with police and made full admissions.
   6. The appellant pleaded guilty at the earliest opportunity.
   7. The appellant spoke very little English, and was socially isolated, so any term in custody would be onerous.
   8. The appellant had an average risk of reoffending.
4. The appellant contended that the 'exceptional' circumstances of the case arose not from one exceptional factor but from the combination of the circumstances.[42]
5. Alternatively, if the court considered that only an immediate term of imprisonment ought to have been imposed, the appellant submitted that the length of the sentence of 14 months' immediate imprisonment was manifestly excessive in all the circumstances of the case. The length of the sentence was said not to reflect appropriately the circumstances of the offending and matters personal to the appellant - all the more so when regard was had to the comparable cases.
6. The State contended that the length of the sentence of 14 months' imprisonment was well within a sound exercise of the sentencing discretion having regard to the maximum sentence prescribed by law (7 years' imprisonment), the place the offending occupied on the scale of seriousness of crimes of this type, the appellant's personal circumstances and the standards of sentencing customarily observed with respect to this crime. The State further contended that the sentencing judge was correct to conclude that she was positively satisfied that the terms of imprisonment should be served immediately and that the seriousness of the offending made it inappropriate to suspend the term.

Applicable legal principles Appellate intervention in respect of sentence

1. On countless recent occasions, without seeing the need to recite authority given that the propositions are so well established, this court has stated to the effect that:
   1. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
   2. In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of: (a) the maximum sentence prescribed by law for the offence; (b) the standards of sentencing customarily imposed with respect to the offence; (c) the place that the criminal conduct occupies on the scale of seriousness of crimes of that type; and (d) the offender's personal circumstances.
   3. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
   4. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
2. The ground of manifest excessiveness alleges implied error. Accordingly, the appellant must demonstrate that the sentencing outcome was one that was not open to the sentencing judge in the proper exercise of her Honour's discretion. That applies equally to the appellant's challenge as to both the length and the type of the sentence as imposed by the sentencing judge.

Appeal against the imposition of a term of immediate imprisonment

1. The relevant statutory framework for sentencing in this State, and its implications for the imposition of a term of immediate imprisonment, is well known and need not be repeated.[43]
2. A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment.[44] It is established that:[45]
   1. A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
   2. In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
   3. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
   4. Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence.[46]
3. The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case. Determining whether a sentencing option is 'not appropriate' involves an evaluative judgement which is broad but not at large; it must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.[47] In R v Liddington, a case concerning possession of child pornography under the predecessor offence to s 220 of the Code, Steytler J (as his Honour then was) identified as non‑exhaustive relevant factors: (1) the prospect of rehabilitation; (2) the personal deterrence provided by the threat of activation of the suspended sentence; (3) the perceived seriousness and intrinsic character of the particular offence; (4) any element of persistence; (5) general deterrence; (6) factors personal to the offender including mitigating circumstances; (7) the need to demonstrate the condemnation of the community for offences of that kind; and (8) reasons militating in favour of an exercise of mercy.[48]
4. There will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.[49]
5. So far as the appellant alleged that his sentence of immediate imprisonment was manifestly excessive as to type, it remains necessary for this court to identify error. Again, however, error will be inferred where the sentence imposed is unreasonable or plainly unjust. In HNA v The State of Western Australia this court explained that:

Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.[50]

The offence of possession of child exploitation material

1. Section 220 of the Code forms part of ch XXV dealing with child exploitation material. It commenced operation on 28 August 2010. Section 220 replaced s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). The maximum penalty for the former offence was 5 years' imprisonment. The increase in maximum penalty to 7 years' imprisonment is an indication that the offence is to be viewed more seriously, with the consequential effect of increasing sentences.[51]
2. It is apparent from numerous previous decisions of this court and its predecessor that the factors which are relevant in determining the seriousness of a particular offence against s 220 of the Code include the following:
   1. The gravity of the sexual activity depicted including the level of perversion and debauchery.
   2. The number of children depicted.
   3. The age or apparent age of the child or children.
   4. The extent to which the conduct depicted in the child exploitation material is likely to harm the child or children.
   5. Whether the child exploitation material tends to depict sexual activity with children as attractive or desirable.
   6. The number of videos, images or other items the subject of each charged offence.
   7. Whether the child exploitation material was possessed by the offender for purposes which included sale or further distribution.
   8. Whether the offender profited or was likely to profit from the commission of each charged offence.
3. In The State of Western Australia v McCarthy Mazza JA (McLure P & Buss JA agreeing) stated:

Offences relating to [child exploitation material] are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse.

The prevalence of offending of this type is an issue because [child exploitation material] is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions. Offences in relation to it are often difficult to detect and investigate.

The major sentencing consideration is general deterrence. The court's duty is to protect children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, [child exploitation material]. This requires courts to send an unequivocal message that the distribution and possession of [child exploitation material] will ordinarily, as a matter of fact, be met with immediate imprisonment. Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight.

...

An examination of the cases confirms that those who commit offences in respect of [child exploitation material] are, like the respondent, commonly of prior good character, are well regarded by those who know them and have done good work in the community. It is not at all unusual to see an offender who has no prior criminal record and is assessed as having a low risk of reoffending. Offenders are not infrequently people who have standing in the community and have achieved much in their life. These factors can only be given limited weight because of the need for general deterrence.[52] (emphasis added; citations omitted)

1. Offences of possessing child pornography are serious offences.[53] The authorities in this State identify that, ordinarily as a matter of fact, a sentence of immediate imprisonment will be imposed for possession of child exploitation material[54] - meaning that the imposition of a different type of sentence is, as a matter of fact, exceptional. There are, however, instances where suspended sentences have been imposed or upheld on appeal.[55]
2. In Godfrey v The State of Western Australia, a 2013 decision, Hall J (Buss & Mazza JJA agreeing) identified that sentences imposed for the offence of possession of child pornography since 1997 had ranged from 8 months' to 2 years' imprisonment.[56] In that case, having regard to the 2010 increase in the maximum penalty, the court upheld a sentence of 2 years' imprisonment as being clearly within the range of a sound sentencing discretion. In Godfrey there were considerably more images than the present case (6,596 images in total). However, there were fewer videos (12 in total) and the images were predominantly classified as Category 1 on the scale in R v Oliver (6,414 of the 6,596 images being classified as Category 1). There were 49 images and four videos within Category 4 and five images within Category 5. See also the review of sentencing decisions carried out by Miller JA (Steytler P and Buss JA agreeing) in The State of Western Australia v Cunningham.[57]
3. Shelley v The State of Western Australia will be referred to below so far as the appellant relied on it in contending that that there was an implied error in refusing to suspend his term of imprisonment. In Shelley, while the offender was successful in persuading this court that there was error as to the type of sentence imposed, the offender failed on a claim of manifest excess as to the length of his sentence. The 41 year old offender, having provided significant cooperation, pleaded guilty to possessing child exploitation material consisting of more images, but fewer videos, than the appellant possessed in the present case. Importantly, there were significantly less videos in the Categories 4 and 5 classifications.[58]
4. The offender in Shelley v The State of Western Australia was sentenced to 16 months' immediate imprisonment. The court observed that the length of the term of 16 months' imprisonment was 'well within' the range of sentences customarily imposed for offences of possession of child exploitation material.[59]

Disposition: the sentence was not manifestly excessive as to type

1. At the appeal hearing, senior counsel for the appellant contended that the appellant's primary position was that the sentence of imprisonment should have been suspended.[60] Accordingly, it is appropriate to deal first with that aspect of the appeal.
2. The appellant relied on three authorities. Two were cases in which this court allowed an appeal and resentenced the offender to either conditional suspended imprisonment or suspended imprisonment. It is convenient to deal with the cases referred to by the appellant in chronological order.
3. The first case referred to was Dartnall v The State of Western Australia. There the court dismissed an appeal against a sentence of 18 months' immediate imprisonment. Relevantly, the offence was one of possession of child pornography contrary to the former s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act. Accordingly, the maximum penalty was 5 years' imprisonment.
4. The 39 year old offender, who pleaded guilty, was in possession of 38 video files and six images of child pornography. The material had been downloaded from the internet, apparently inadvertently, but was then transferred onto discs and retained for more than 12 months. The material depicted acts of sexual penetration involving adults and children and children and children. It was characterised as depicting acts of a high level of depravity. The children were aged 10 years and above. The offender was found to be at a low risk of reoffending. He was remorseful and had some insight into the offending behaviour.
5. Newnes JA (McLure P & Mazza JA agreeing) reviewed the sentences that had been imposed in a number of decisions between 2008 and 2011. They varied between 16 months' and 2 years' immediate imprisonment.[61] Newnes JA observed that the sentence of 18 months' immediate imprisonment was high. But it was not so high as to fall outside an appropriate sentencing range.[62]
6. Shelley v The State of Western Australia is the first of the cases in which this court upheld an appeal against a term of immediate imprisonment. The original sentence was one of 16 months' immediate imprisonment. The nature of the offending has been summarised at [48] above. The unusual feature of the case was that, having been contacted by the police, the offender - who was socially isolated - voluntarily attended the offices of the Online Child Exploitation Squad with his laptop computer. The offender had ample opportunity to conceal or destroy the computer. The offender made candid admissions during interview. Immediately after arrest the offender made contact with a clinical psychologist and sought professional help to overcome his interest in child exploitation material.
7. The court did not doubt that the decision to impose a term of imprisonment was correct. Nor, as has been seen, was a term of 16 months' imprisonment manifestly excessive. The distinguishing features in the case were (1) the offender's level of cooperation - without which it was most unlikely he would have been charged let alone convicted; and (2) consistent with his cooperation and remorse, the offender voluntarily embarked on an intensive course of rehabilitation - the court regarded the offender's commitment to this course of rehabilitation as being 'exceptional' having regard to other cases seen in the court.[63] The combination of mitigating factors, particularly the cooperation and rehabilitation, were regarded as exceptional and as justifying the imposition of a conditionally suspended term of imprisonment.[64]
8. The final case relied on by the appellant was Cluett v The Queen. This too was a case with unusual facts. The offender was convicted, on pleas of guilty, of one count of possession of child exploitation material contrary to s 220 of the Code (count 1) and two counts of using a carriage service to access child exploitation material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (counts 2 and 3). The offending contrary to s 220 consisted of 28 images, the majority of which were classified as Category 1. There were, however, nine Category 4 videos which depicted children between about 5 and 14 years of age engaging in penetrative sexual activity with adults. The offender was sentenced to a total effective sentence of 9 months' immediate imprisonment which included a term of 6 months' immediate imprisonment on count 1.
9. An appeal was allowed. On count 1, the offence contrary to s 220 of the Code, the offender was resentenced to a term of 6 months' imprisonment suspended for a period of 12 months. On counts 2 and 3 the offender was resentenced to terms of imprisonment subject to being released forthwith upon entering into a recognizance to be of good behaviour for a period of 12 months.
10. This court held that a number of unusual circumstances combined to make Cluett an exceptional case which did not require the imposition of the generally appropriate type of sentence for the offence. The number of images possessed was much lower than ordinarily feature in cases of this kind. The viewing was not motivated by sexual attraction. The offending was not aggravated by having paid to access the pornography. The offender was 61 at the time of offending. He pleaded guilty at the first reasonable opportunity, had no relevant criminal record and had expressed remorse for the offending. The offender was cognitively impaired; he had been diagnosed as having autism spectrum disorder with intellectual impairment. There was found to be a causal connection between the offending and the appellant's autism spectrum disorder. The offender was assessed as being unlikely to reoffend in a similar manner. Finally, the symptoms of the offender's autism spectrum disorder meant that immediate imprisonment would be much more onerous for him than for an ordinary prisoner.[65]
11. The court made it clear that none of these factors, considered individually, would necessarily justify a sentence other than immediate imprisonment.[66] Plainly, however, the offender's autism spectrum disorder was a highly material sentencing consideration. It reduced both the offender's moral culpability and the significance of general deterrence as a sentencing consideration.[67]
12. The three cases relied on by the appellant provide little assistance to his appeal. The outcome in Dartnall v The State of Western Australia supports the sentencing disposition in this case as does the discussion of customary sentencing standards in Dartnall. Shelley v The State of Western Australia and Cluett v The Queen were exceptional cases. So too were the other cases in which this court has upheld or imposed a sentence other than a term of immediate imprisonment.[68] The features of Shelley and Cluett which made them exceptional, meaning that it was not reasonably open to be positively satisfied that some form of suspended imprisonment was not appropriate, are not found in the present case. The features relied on by senior counsel for the appellant, as summarised at [30] - [33] above, do not constitute exceptional circumstances of or analogous to the kind that were present in Shelley and Cluett. Shelley and Cluett are not apt comparators. Apart from the appellant's lack of English and limited engagement with the community - something that contributed to the appellant's social isolation - the circumstances of the appellant's offending and the appellant's personal circumstances had little to distinguish this case from the multitude of cases in which, ordinarily as a matter of fact, a sentence of immediate imprisonment has been imposed for possession of child exploitation material.
13. The sentencing judge's positive conclusion that it was not appropriate to impose a form of suspended imprisonment was not unreasonable or plainly unjust. In all the circumstances it was reasonably open to the sentencing judge to be satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that a form of suspended imprisonment was not an appropriate sentencing option. Thus, it was open to the sentencing judge to impose a term of immediate imprisonment. Indeed, in our opinion, the circumstances of the present case were not such as to leave open to the sentencing judge the imposition of suspended imprisonment of any kind.
14. In considering those circumstances - and having particular regard to the features of the present case as relied on by senior counsel for the appellant - we note as follows:
    1. The sentencing judge correctly characterised the appellant's offending as a very serious example of offending of this kind. While the number of images was comparatively low, there was a substantial number of Category 4 and 5 videos. The child exploitation material contained a high level of debasement and perversion - a relevant sentencing consideration that increases the seriousness of the offence. The objective circumstances of the appellant's offending were substantially more serious than the offending in both Shelley v The State of Western Australia and Cluett v The Queen.
    2. To the extent that the appellant's submissions relied on the circumstance that he had not paid to access the materials, it is accepted that the absence of payment does not mitigate the offending, although its presence may aggravate it.[69] As this court sought to emphasise in Cluett v The Queen:

The mere fact that child exploitation material is accessed from an open website without any exchange of money does not justify the imposition of a sentence other than one of immediate imprisonment. Nothing in these reasons should be taken to suggest to the contrary.[70]

1. The appellant's personal circumstances carried lesser weight given the nature of the offending. The primary sentencing considerations were general deterrence and the need to protect vulnerable children.
2. In any event, other than the appellant's lack of English and limited engagement with the community, the mitigating factors that existed were not exceptional. They are commonly seen in such offenders. We do not regard the appellant's social isolation, due mainly to his lack of English, as being a factor that makes this an exceptional case in an equivalent or analogous way to the offender's cooperation in Shelley v The State of Western Australia or the offender's autism spectrum disorder with intellectual impairment in Cluett v The Queen. It cannot - either alone or in combination with the other factors relied on by the appellant - compel appellate intervention on the basis that the sentencing judge imposed a type of sentence that fell outside what was open in all the circumstances of the case.
3. The appellant was assessed to be at average risk of reoffending (distinguishing him from the offender in Cluett v The Queen).
4. The appellant had not undertaken any course of rehabilitation (distinguishing him from the offender in Shelley v The State of Western Australia).
5. In all the circumstances, including those mentioned in [63] above, it was well open to the sentencing judge to impose a term of immediate imprisonment. That sentencing option was reasonably open having regard to the seriousness of the appellant's offence taking into account the maximum penalty, the circumstances of the offending (including the vulnerability of the children depicted in the child exploitation material) and the mitigating factors personal to the appellant. Indeed, in our opinion, in all of the circumstances the only appropriate sentence was a term of immediate imprisonment.
6. The first aspect of the ground of appeal should be dismissed.

Disposition: the sentence was not manifestly excessive as to length

1. The second aspect of the appellant's ground of appeal was not separately developed in any detail at the appeal hearing. Senior counsel for the appellant initially suggested that something in the order of nine months' imprisonment might 'not be out of the question' or 'within ... a sound discretionary judgement' for matters of this type.[71] The eventual submission was that nine to 12 months' imprisonment was the outside of what might have been reasonably required in the circumstances.[72]
2. It is not necessary to repeat what has already been said as to the circumstances of the appellant's offending and his personal circumstances. What has been said above in connection with whether the sentence is manifestly excessive as to type applies equally as to whether the sentence is manifestly excessive in length. It should, however, be recognised that the term of 14 months' imprisonment was within the range of sentences customarily imposed for offences of child exploitation material having regard to Godfrey v The State of Western Australia (a sentence of 2 years' imprisonment upheld after identifying a range of 8 months' to 2 years' imprisonment in broadly comparable cases), Shelley v The State of Western Australia (16 months' imprisonment not manifestly excessive) and Dartnall v The State of Western Australia (18 months' imprisonment high but not outside an appropriate sentencing range having regard to the range of sentences imposed in broadly comparable cases).
3. Moreover, in considering the earlier cases, it must be recalled that the predecessor offence under s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act attracted a lesser maximum penalty.
4. In our opinion, the objective circumstances of the appellant's offending were more serious than the offending in Shelley v The State of Western Australia (see [48] above). The appellant was also in possession of substantially more child exploitation material than the offender in Dartnall v The State of Western Australia, although it appears that some of the material in Dartnall had an equally high level of depravity as is found in the material possessed by the appellant. The appellant was in possession of considerably fewer Category 1 images than the offender in Godfrey v The State of Western Australia. However, the offender in Godfrey had fewer Category 4 and 5 videos than the appellant and received a higher sentence (2 years' immediate imprisonment).
5. The sentence of 14 months' imprisonment imposed on the appellant was within the range of a sound exercise by the sentencing judge of her Honour's discretion. The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the general standards of sentencing for offences of this kind, the appellant's personal circumstances and antecedents and all other relevant sentencing factors. The principal sentencing considerations were general deterrence and the protection of vulnerable children. The term of 14 months' imprisonment was not unreasonable or plainly unjust.
6. We would not infer error from the sentencing outcome. The second aspect of the ground of appeal should also be dismissed.

1. The appellant's claim of manifest excess as to the type and length of the sentence of 14 months' immediate imprisonment imposed on him is without merit. Leave to appeal on the single ground of appeal should be refused.
2. We would order that:
   1. Leave to appeal on ground 1 is refused.
   2. The appeal is dismissed.

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

[4] R v Oliver [2002] EWCA Crim 2766; [2003] 2 Cr App R (S) 15. The classification system was discussed by this court in Smit v The State of Western Australia [2011] WASCA 124 [14] - [17] and Shelley v The State of Western Australia [2014] WASCA 154 [9].

[5] Referring to depictions of children in erotic poses with no sexual activity.

[6] Referring to depictions of non-penetrative sexual activity between children or solo masturbation by a child.

[7] Referring to depictions of non-penetrative sexual activity between children and adults, mutual masturbation and other non-penetrative sexual activity.

[8] Referring to depictions of penetrative sexual activity between children or between children and adults including intercourse, cunnilingus and fellatio.

[9] Referring to depictions of sadism, bestiality or humiliation; for example, urination, defecation, vomit, bondage or child abuse.

[12] Psychologist report dated 22 October 2019 par 14.

[13] Psychologist report dated 22 October 2019 par 22.

[14] Psychologist report dated 22 October 2019 par 14.

[15] Psychologist report dated 22 October 2019 par 10.

[16] Psychologist report dated 22 October 2019 par 15.

[17] Psychologist report dated 22 October 2019 par 15.

[18] Psychologist report dated 22 October 2019 par 19.

[19] Defence's submissions in relation to sentence dated 5 May 2010 par 62 WAB 58; ts 17.

[20] Defence's submissions in relation to sentence dated 5 May 2010 pars 62 - 63 WAB 58 - 59; ts 17.

[27] Defence's submissions in relation to sentence dated 5 May 2010 par 62 WAB 58 ('the offence ... is serious and warrants imprisonment); ts 17 ('I accept that this matter is very serious').

[40] Cluett v The Queen [2019] WASCA 111.

[41] Dartnall v The State of Western Australia [2012] WASCA 251.

[43] See eg The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [50] ‑ [57]; HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [28].

[44] Sentencing Act s 39(2) and (3).

[45] See eg Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] ‑ [35]; DKN v The State of Western Australia [2018] WASCA 87 [35] ‑ [37].

[46] The State of Western Australia v McCarthy [58].

[47] HNA v The State of Western Australia [29].

[48] R v Liddington (1997) 18 WAR 394, 406.

[49] The State of Western Australia v Egeland [2018] WASCA 228 [177].

[50] HNA v The State of Western Australia [30]. See also the formulation in Cluett v The Queen [49].

[51] Godfrey v The State of Western Australia [2013] WASCA 247 [53]; The State of Western Australia v McCarthy [66].

[52] The State of Western Australia v McCarthy [71] - [73], [76]. See also Hill v The State of Western Australia [28].

[53] Hutchins v The State of Western Australia [18].

[54] Hutchins v The State of Western Australia [23]; Hill v The State of Western Australia [28]; R v Lee [2013] WASCA 216 [30] (referring to Smit v The State of Western Australia); Godfrey v The State of Western Australia [35]; The State of Western Australia v McCarthy [58]; Cluett v The Queen [56].

[55] Four such cases are identified by Mazza JA in The State of Western Australia v McCarthy [74]. To those should be added the subsequent case of Cluett v The Queen.

[56] Godfrey v The State of Western Australia [54].

[57] The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430 [24] ‑ [28].

[58] The materials consisted of: Category 1 - 50 images; Category 2 - 40 images and 19 videos; Category 3 - one image and four videos; Category 4 - 16 videos; Category 5 - one video. See Shelley v The State of Western Australia [7].

[59] Shelley v The State of Western Australia [42].

[61] Dartnall v The State of Western Australia [19] - [21].

[62] Dartnall v The State of Western Australia [24].

[63] Shelley v The State of Western Australia [37] - [38].

[64] Shelley v The State of Western Australia [40], [43].

[65] Cluett v The Queen [66] - [77].

[68] See: (1) R v Liddington (there were said to be 'powerful factors of a mitigatory nature' such that, while the issue was finely balanced, it could not be said that the sentencing judge's discretion miscarried: (405)); (2) Dragon v The State of Western Australia [2008] WASCA 252 (six images of child pornography at the lower end of the scale of seriousness); (3) Naysmith v The State of Western Australia [2013] WASCA 32 (the offender had an intellectual disability such that little weight could be given to general deterrence).

[69] Hutchins v The State of Western Australia [26].