Court of Appeal (WA)|2008-12-23|Before: Miller JA, Gummow JJ, Gibbs CJ, Roberts-Smith JA, McLure JA, Wheeler JA, Steytler P, Lure JA

SPEERING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 266 (23 December 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SPEERING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 266

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Using electronic communication with intent to expose a child believed to be under the age of 13 years to indecent material (two counts) - Section 204B(3)(b)(ii) Criminal Code - Using electronic communication with intent to procure a child believed to be under the age of 13 years to engage in sexual activity - Section 204B(3)(b)(i) Criminal Code - Sentences of 12 months' imprisonment on each count - Aggregate sentence of 2 years' imprisonment - Whether manifestly excessive - Whether sentence of suspended imprisonment open

Criminal Code (WA), s 204B(3)(b)(i), s 204B(3)(b)(ii)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 2

1 STEYTLER P: The appellant was convicted, after pleading guilty on the fast-track, on two counts of using electronic communication with intent to expose a person he believed to have been under the age of 13 years to indecent matter contrary to s 204B(3)(b)(ii) of the Criminal Code (WA) (Code) 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) of the Code. He was sentenced to 12 months' imprisonment on each count. The sentences on counts 1 and 2 were ordered to be served concurrently but that on count 3 was ordered to be served cumulatively, making up an aggregate term of 2 years' imprisonment, with eligibility for parole. He appeals against the sentences imposed.

2 The facts concerning the offences and evidence bearing upon the sentencing of the appellant have been fully set out in the judgment of Miller JA. It is unnecessary for me to repeat what he has said.

3 The four grounds of appeal, also fully set out in Miller JA's judgment, essentially contend that suspended sentences of imprisonment were open and should have been imposed (ground 1), that too much weight was placed on general deterrence (ground 2), that insufficient weight was given to the effect of a sentence of immediate imprisonment on the appellant's disabled dependent younger brother (ground 3) and that the totality principle was infringed (ground 4).

4 I will deal first with grounds 2 and 3. It is very difficult for an appellant to succeed on a ground that alleges that too much, or too little, weight was given to a particular consideration. Sentencing is a discretionary exercise and a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ); Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA), [76] (McLure JA); Scook v The Queen [2008] WASCA 114 [15] (McLure JA); Ponnusamy v The State of Western Australia [2008] WASCA 224 [22] (Wheeler JA, McLure JA concurring). That did not happen in this case.

5 So far as ground 3 is concerned, the sentencing judge expressly took into account the fact that the appellant supported his brother emotionally and financially and that he was concerned as regards his brother's welfare if that support was to be withdrawn. However, as Miller JA has pointed out, there was nothing to suggest that the appellant's brother could not adequately be looked after during the period of the appellant's incarceration. I adopt what Miller JA has said in that regard. In that circumstance, the fact of reliance upon the appellant by his brother cannot be regarded as being of such significance that it should have resulted in a different sentence.

6 As to ground 2, counsel for the appellant submitted, correctly, that considerable weight was placed by the sentencing judge on general deterrence. He contended that this consideration should have been given little significance because the appellant suffered from mental illness, making the case one that was not a suitable vehicle for general deterrence. He relied upon two specialist reports that were before the sentencing judge in this respect. Both were prepared by psychologists.

7 The first of these, dated 6 June 2008, was prepared by Mr David Summerton. He concluded that there was evidence that the appellant suffered from significantly elevated anxiety and that there was some indication of low mood. He also said that there was 'evidence of severe personality disorder in relation to schizotypal personality disorder though this was not pronounced'. Consideration of the appellant's general personality scales revealed 'pronounced avoidant features along with some indication of depressive, avoidant and dependent tendencies'.

8 The second report, dated 23 July 2008, was prepared by Helen Fowler, a clinical psychologist. She mentions that the appellant had been diagnosed as suffering severe anxiety and depression for a protracted period. She also mentions that the period in which the offences were committed was one in which the appellant had been attempting to seek an early appointment with his psychiatrist. She says that this suggests that the appellant was aware of the escalation of his emotional problems and of his increasing problematic behaviour. As Miller JA has said, she mentions that the appellant's offending behaviour impresses 'as likely motivated by his psychological issues, intimacy and social isolation'.

9 Close consideration was given by the sentencing judge to this evidence. However, she did not regard it as detracting from the need to place emphasis on the consideration of general deterrence. In my respectful opinion, she made no error in that respect. While it seems to me that Ms Fowler's evidence was sufficient to establish that the appellant's offending behaviour was contributed to by his depression and anxiety, and that he was sufficiently concerned by his mental state to seek psychiatric help, that does not lessen the need for the sentence imposed to reflect the notion of general deterrence. The appellant's depression and anxiety were not the sole contributors to his offending and nor did they compel him to offend in the way that he did. His problems with intimacy and social isolation also contributed to his offending. All of these problems had undoubtedly to be taken into account. However, it has been the experience of the courts that many, if not most, offenders who come before them in this context suffer from psychological problems of one kind or another that have contributed to their offending behaviour. That does not ordinarily lead to the conclusion that these cases are not vehicles for general deterrence. In my opinion, while the appellant's depression and anxiety were undoubtedly mitigating factors, and consequently had to be given weight in the sentencing process, they could not be regarded, on the whole of the evidence, as having been so influential as to make this case an inappropriate vehicle for general deterrence.

10 As to ground 1, I am not persuaded that this was a case in which suspended sentences of imprisonment were appropriate. Even allowing for the factors in mitigation, these offences were serious. Each of them was committed by a 29-year-old man in respect of a person that he believed to be a 12-year-old child. As Miller JA points out, each offence carried a maximum term of 10 years' imprisonment (although, if the 'girl' had said that she was 13, rather than that she turned 13 'in May' - two months after the date of the offences, the maximum penalty would have been 5 years' imprisonment). 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.

11 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.

12 As to ground 4, counsel for the appellant submitted that a total term of 2 years' imprisonment was so severe as to be disproportionate to the appellant's overall criminality, especially having regard to his mental problems. He contended that the sentences in this case are disproportionate to the sentences imposed in Collier, Freemantle and Porter. Those cases have been discussed by Miller JA in his judgment and I will not repeat what he has said, other than by endorsing his comment that none of them sufficiently supports the appellant's proposition, given that each involved a prosecution appeal against sentence to which the principles governing prosecution appeals were then applicable (as to which see Collier [20] - [23] and Porter [10]).

13 Although the total sentence imposed in this case is undoubtedly severe, I am not persuaded that it is so severe as to reflect error. It is not for this court to intervene merely because it might have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 25; (1999) 195 CLR 665. There must be an express or inferred error of fact or law: Dinsdale [3] (Gleeson CJ & Hayne J). In my opinion, it was open to the sentencing judge to regard the sentence of 2 years' imprisonment as proportionate to the degree of criminality involved and that the sentence could not be described as crushing: Jarvis v The Queen (1993) 20 WAR 201, 206 - 207 (Ipp J); Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

16 MILLER JA: The appellant was indicted in the District Court at Perth on two 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) of the Criminal Code, 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) of the Criminal Code.

17 The respondent pleaded guilty on the 'fast-track' to each count. He was sentenced by Deane DCJ on 25 July 2008 to 12 months' imprisonment on each count. The sentences on counts 1 and 2 were ordered to be served concurrently with each other, but the sentence on count 3 was ordered to be served cumulatively upon these sentences. The aggregate sentence was, therefore, 2 years' imprisonment. There was a direction that the appellant should be eligible for parole. The sentences reflected application of the transitional provisions (Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 2).

18 The three offences were contrary to the provisions of s 204B of the Criminal Code. This section was inserted into the Criminal Code by Act No 3 of 2006, s 4. Section 204B(3) is in the following terms:

(a) ...

(b) with intent to -

(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,

either in Western Australia or elsewhere,

is guilty of a crime and is liable to imprisonment for 10 years.

19 An offence against s 204B(3) of the Criminal Code carries a liability to imprisonment for a term of 10 years. This is in contrast to s 204B(2), where the same offences are contained, but where there is an age difference (16 years) in relation to 'the child'. There, the maximum penalty prescribed by the subsection is imprisonment for 5 years. The penalty for using electronic communication with intent to procure a person believed to be under the age of 13 years to engage in sexual activity, or to expose a person believed to be under the age of 13 years, to any indecent matter is thus double what it is for the same offence where the child concerned is under the age of 16 years, but over the age of 13 years.

20 In the present case, the appellant believed he was dealing with a 12-year-old girl. Accordingly, on the facts of the case, there was not a great deal of difference between dealing with a person believed to be under the age of 13 years and one of dealing with a person over the age of 13 years. Nevertheless, Parliament has drawn a line between cases involving persons under the age of 13 years and persons aged between 13 and 16 years. A much greater penalty applies in the former can than it does in the latter.

21 The facts put before the court on 25 July 2008 were as follows.

22 Count 1 was committed at about 7.25 pm on 18 March 2008 when the appellant engaged a police officer who purported to be a 12-year-old female in a conversation in a teens chat room. This chat room was within an online chat facility known as the Internet Relay Chat. The appellant displayed his username as 'Dreaming_Tree'.

23 Within moments of the commencement of the conversation, the appellant had ascertained that the person to whom he was speaking (to whom I shall refer as 'the child') purported to be 12 years of age. He, thus, believed that the person to whom he was speaking was under the age of 13 years.

24 The following passage from the conversation illustrates this fact:

25 The appellant then immediately engaged the child in a conversation about masturbation. The following extract from the conversation is sufficient to illustrate this point.

26 Shortly after this exchange, the conversation moved to Windows Messenger MSN chat facility. The appellant then used a different email address. The appellant's username was 'Bring on SUMMER!!!!'. The child to whom he was speaking carried the username 'Sophie'. The following extract from the conversation which ensued, illustrates how the appellant breached the provisions of s 204B(3)(b)(ii) of the Criminal Code:

[19:41] Bring on SUMMER!!!!: getting horny hahaha

[19:41] Sophie: haha how come

[19:41] Bring on SUMMER!!!!: I dunno, just need to blo a load hahaha

[19:41] Sophie: wot do u mean hey

[19:43] Sophie: hullo?

[19:45] Bring on SUMMER!!!!: sorry, was just getting a drink :P

[19:45] Bring on SUMMER!!!!: I need to orgasm hehehe

[19:45] Sophie: okies np

[19:45] Sophie: lol

[19:45] Bring on SUMMER!!!!: and cum everywhere :P

...

27 The appellant sent the child a photograph of an erect penis which appeared to have been taken shortly after ejaculation. He was later to say through his counsel that the photograph was not a photograph of his penis, but was an old photograph that he had of somebody else's penis. Whether this was the case or not, the sending of the photograph constituted an offence under s 204B(3)(b)(ii) of the Criminal Code. This offence constituted count 1 on the indictment.

28 The offence the subject of count 2 was committed on the same day, but at a later time. Shortly after dispatching to the child the photograph of the penis, the appellant suggested that the child should masturbate herself. He gave her explicit instructions as to how to do this. Those instructions constituted an offence under s 204B(3)(b)(i) of the Criminal Code. The following extract from the conversation is sufficient to indicate what the appellant said:

29 The appellant continued conversing with the child about an act of masturbation. It is unnecessary to detail the words used. It is sufficient to say that his intent was to procure the child to engage in masturbation by way of digital penetration of herself. He believed that she was doing this and he actively encouraged her to do so.

30 The offence the subject of count 3 on the indictment occurred on a different date, 25 March 2008. On that day, the appellant engaged the same child in a further conversation. Again, it was on the Windows Messenger chat facility. He asked the child whether she had tried to masturbate herself again since the last conversation. The following extract is sufficient to illustrate the point:

Bring on SUMMER!!! Says (8:29 PM):

so what did it feel like when you were playing the other night?

Sophie says (8:29PM):

felt weird n it made me feel funny

Bring on SUMMER!!! Says (8:29 PM):

in a good or bad way?

Sophie says (8:30 PM):

prolly good but it was just different cos I neva done that b4

Bring on SUMMER!!! Says (8:30 PM):

heheheh

Bring on SUMMER!!! Says (8:30 PM):

did you feel your vagina do anything when you were feeling all tingly?

Sophie says (8:31 PM):

well it went slimy n felt tingly

Bring on SUMMER!!! Says (8:30 PM):

cool, did it feel like it was pulsing?

31 The appellant clearly intended that the child should continue masturbation. He said:

Sophie says (8:33 PM):

hey do kids my age do that much

Bring on SUMMER!!! Says (8:34 PM):

yep, don't worry about it

Sophie says (8:34 PM):

kk kewl I just thort I cood get in trubble cos im only 12

Bring on SUMMER!!! Says (8:35 PM):

hell no

Sophie says (8:35 PM):

kewl

Bring on SUMMER!!! Says (8:35 PM):

no one will even be able to tell

This conversation constituted an offence under s 204B(3)(b)(i) of the Criminal Code.

32 Shortly after this last conversation, police attended at the address of the appellant and executed a search warrant. A computer tower and a number of computer-related items (including a webcam) were seized. The appellant was taken to the office of the 'cyber predator team' where he participated in a video record of interview and made a number of admissions.

33 The sentencing comments are extensive. Her Honour first reviewed the facts of the case and then turned to matters personal to the appellant. He was 29 years of age, having been born on 6 February 1979. He had a university degree and an education diploma. He had worked as a teacher for a period of approximately three years before obtaining a position in the sphere of occupational health, safety and welfare. He was a single man who lived in the family home with his brother. His brother was said to require care and attention because of a debilitating mental condition.

34 The sentencing judge reviewed in depth the contents of a pre-sentence report and two psychological reports. The pre-sentence report (which the writer suggested should be read in conjunction with an attached psychological report) stated that the appellant had agreed with the Statement of Material Facts with which he had been provided. This statement contained the basic material which was the subject of the statement of facts by the prosecutor at the hearing before the sentencing judge. The author of the pre-sentence report said that the appellant 'seemed to minimise his offending behaviours as a matter of "just killing time"' and, therefore, denied that he was pursuing a sexual interest in children. The appellant said that he did not know why had committed the offences and he preferred to discuss what he believed were significant personal events preceding the offences rather than the actual offences themselves. He admitted to a long-term pattern of internet chatting, but denied that he had any previous interest in attempting to contact children. He was assessed by the writer of the pre-sentence report as presenting a medium to high risk of sexual offending within the next five years. This assessment came from the psychological report of Mr David Summerton, dated 6 June 2008.

35 The psychological report of Mr Summerton sets out in considerable detail the appellant's background and all relevant personal factors. Mr Summerton said that the appellant had difficulty in explaining to him why he had engaged a 12-year-old in sexual conversation. He claimed that he would not normally talk to a 12-year-old, but said that on this occasion the complainant and he had 'seemed to get along'. The psychologist added:

Clearly he had contemplated follow up conversation with the complainant given that he had added her MSN address to his address list and he stated that in the follow up conversation he had been interested to know if she had orgasmed and suggested that he would have viewed such an outcome as a sense of achievement. He insisted that he had not previously engaged a girl of such an age in sexual talk and asserted that he had no sexual interest in girls who were under 16 years old. Obviously he had placed himself at some risk of engaging younger girls given that he had utilised the given teenaged chatroom periodically. Given his regular use of the intemet for the purpose of sexual engagement it is perhaps not surprising that in a state of sexual anticipation and arousal he had pursued a sexual focus, overstepped his boundaries and initiated a sexual focus with the complainant. He claimed that the photograph that he sent was years old and had definitely not been an image of his penis subsequent to ejaculation as described in the statement of material facts.

36 Psychometric testing of the appellant revealed that there was evidence of 'significantly elevated anxiety and some indication of low mood'. There was also evidence of 'severe personality disorder in relation to schizotypal personality disorder, although this was not pronounced'. Mr Summerton considered that the appellant's 'Static 99' assessment revealed him to be in the medium to high-risk category for reoffending. He was said to have a three in 10 chance of sexual reoffending within a five-year period. In his summary and recommendations Mr Summerton said:

He accepted responsibility for his offending and as indicated he impresses as having a relatively good level of insight into the issues that are broadly related to this behaviour. He has been identified as a medium high risk of reoffending according to the Static 99 though this potentially overstates his level of risk. He has taken active steps to address his offending and is considered to have ongoing treatment needs with particular reference to his intimate relationships with women and broader self esteem issues. He appears to be productively engaged in treatment and it is pertinent that such a process continue with the practitioner in question.

37 A second psychological report from Ms Helen Fowler, dated 23 July 2008, also reviews the appellant's background, social history and psychological issues. Ms Fowler states that the appellant had been diagnosed by Dr Komeda-Hryniewicki as suffering severe anxiety and depression for a protracted period. He was on prescribed medication for depression and anxiety. Her conclusion is that the appellant 'has a protracted history of psychiatric issues', mainly depression and anxiety, and his offending behaviour 'impresses as likely motivated by his psychological issues, intimacy and social isolation'. Ms Fowler says that the appellant has displayed proactive behaviour in addressing these issues through attendance to a psychiatrist and cognitive and behavioural and mood management treatment programmes. Ms Fowler questioned the Static 99 test result, pointing out that it was a test which related to an untreated English or Canadian sex offender released into the community with the standard level of community supervision provided in those countries. Her criticism of the test was that it was not used to gauge probability of the appellant's future risk because he had attended 10 treatment sessions and was, therefore, not an unrelated offender. She thought the Static 99 test, therefore, to be inappropriate.

38 The sentencing judge concluded that 'it is never possible to predict with any degree of certainty whether someone will reoffend or not'. Her Honour appears to have accepted Ms Fowler's statement that the appellant did not have any distorted attitudes and was well aware of the inappropriate nature of his actions.

39 The sentencing judge took full account of written references which testified to the appellant's prior good behaviour. She noted that he was remorseful for what he had done, and said that this was reflected in his fast-track pleas of guilty. That much was correct, as fast-track pleas of guilty can demonstrate remorse, an acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 (Gaudron, Gummow and Callinan JJ) [11].

40 The sentencing judge took account of the fact that the appellant had taken on the role of carer and mentor to his younger brother, who apparently suffered emotional problems. The appellant claimed that he supported his brother emotionally and financially, and he was concerned as to his brother's welfare if that support was withdrawn. However, it should be said that the appellant's parents are both alive and in a position to provide support. The appellant's concern was that they could not give adequate support for his younger brother.

41 The sentencing judge noted the positive steps taken by the appellant towards rehabilitation, but said that matters of general deterrence were of considerable importance in this case. Her Honour reviewed recent authorities of this court and concluded that it was plain from those authorities that adult persons who use the Internet to connect with children to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. Reference was made to a number of passages of Steytler P in The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310.

42 The sentencing judge took full account of the appellant's pleas of guilty and his genuine remorse, but determined that imprisonment was clearly the only appropriate sentencing option. Careful consideration was given to the question whether sentences of imprisonment could be suspended, but the sentencing judge determined that, notwithstanding factors which were clearly in the appellant's favour and mitigatory, 'general deterrence outweighs them and demands that a term of imprisonment be served immediately'. Sentences of 12 months on each count were then imposed, with the sentences on counts 1 and 3 being ordered to be served cumulatively. The sentencing judge declined to make an order that the appellant should be declared a 'reportable offender': Community Protection (Offender Reporting) Act 2004 (WA) s 13.

43 There are four grounds of appeal which, in summary, are as follows:

(1) The aggregate sentence of 2 years' imprisonment was manifestly excessive and a suspended sentence of imprisonment was open to be imposed having regard to (a) the nature of the offending behaviour and the mitigating aspects of it; and (b) the mitigating factors personal to the appellant.

(2) Too much weight was placed by the sentencing judge on general deterrence, which was 'an irrelevant consideration' given the appellant's mental health issues.

(3) Insufficient or no weight was given to the profound effect that a sentence of immediate imprisonment would have on the appellant's disabled dependent younger brother.

(4) The totality of the offending behaviour was such that the sentence imposed on count 3 should have been concurrent with the sentences on counts 1 and 2.

44 This ground is curiously expressed. It suggests that the sentence imposed was manifestly excessive in that a lesser sentence 'such as a suspended sentence (or at least a lesser term of imprisonment)' should have been imposed. In support of the first particular, it is contended that there were mitigating aspects of the appellant's behaviour because he did not meet with, nor attempt to meet with, the child; the offending behaviour was of short duration; there was a causal connection between the appellant's mental heath issues and his offending behaviour; and the appellant was not motivated by paedophiliac tendencies.

45 The mitigating factors which are said to be particularly important for the appellant are that his offending behaviour was 'an aberration of his prior excellent character'; he was remorseful; he had engaged in intensive rehabilitation at his own expense; he had pleaded guilty on the fast-track; and his rehabilitation meant that he had a 'nil or minimal likelihood of reoffending'.

46 A succession of cases dealing with offences against s 204B(2) and s 204B(3) of the Criminal Code make it clear that, in the ordinary case, an adult person committing offences of the type committed by the appellant, at least if they are committed in respect of a person believed to be only 13 years of age, can expect to receive a term of immediate imprisonment: Collier (Steytler P) [43]; The State of Western Australia v Freemantle [2008] WASCA 98 (Steytler P) [8], (Miller JA) [40]; The State of Western Australia v Porter [2008] WASCA 154 (Steytler P) [8], (Miller JA) [65] - [66].

47 In Porter, at [66], I expressed the view that, whether the offence was one against s 204B(2) or s 204B(3) of the Criminal Code, notwithstanding that the maximum penalties for those offences are respectively 5 and 10 years' imprisonment:

[T]he difference in maxima does not take away from the general principle that persons who engage in Internet communication with intent to procure children to engage in sexual activity or to expose them to indecent matter can generally expect to receive sentences of immediate imprisonment (see also observations of Miller JA in Freemantle at [59]).

48 It seems to me that it is now beyond question that, in the ordinary case, a sentence of imprisonment to be served immediately will be imposed for an offence against s 204B(3) of the Criminal Code, whether the offence be under s 204B(3)(b)(i) or s 204B(3)(b)(ii).

49 In the present case, it did not, in my view, matter that the appellant had made no attempt to meet with the child (see Collier per Steytler P at [35]). It may have aggravated the circumstances of the case and led to a greater penalty had there been an attempt to meet the child, but a sentence of 12 months' imprisonment on each of the counts could not, in my view, be said to be excessive, for this reason alone.

50 Psychiatric illness is clearly relevant to sentencing. The relevant principles were expressed by Steytler P in Thompson v The Queen [2005] WASCA 223 at [52] - [55]:

It is settled that serious psychiatric illness not amounting to insanity is relevant to sentencing. In R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400, Charles and Callaway JJA and Vincent AJA said that this was so in at least the following five ways:

"First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40]. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed, as it often has been: see, for example, R v Juli (1990) 50 A Crim R 31 at 37; R v Hurd [1988] TASSC 54; (1988) 38 A Crim R 454 at 461, 465; Tsiaras, above, at 400; R v Balchin (1974) 9 SASR 64 at 68; R v Reynolds (1983) 10 A Crim R 30; and Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459.

As to personal deterrence, as is implicit from what was said in Tsiaras, much depends upon the nature and effect of the illness. The notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment, and, where the illness affects the person's ability to make that analysis, there is no justification for affording that consideration the same measure of significance as it might have in the case of a well person: see Payne, above, at [43].

As to general deterrence, this is a factor which should often be given little weight in the case of an offender suffering from a mental disorder, such an offender not being an appropriate medium for making an example to others: R v Scognamiglio (1991) 56 A Crim R 81 at 86; Anderson v The Queen [1981] VicRp 17; [1981] VR 155 at 159. In an extreme case, considerations of general deterrence might be totally outweighed by other factors. However, in every case, the relevant factors must be balanced in a manner no different from that which is involved in every sentencing exercise: R v Letteri, unreported; CCA SCt of NSW; Library No 60497 of 1991; 18 March 1992 at 14, per Badgery-Parker J and R v Engert (1995) 84 A Crim R 67 at 70-71, per Gleeson CJ. [52] - [55]

51 In her psychological report, Ms Fowler appears to have equated psychiatric and psychological issues, saying:

Mr Speering is a 29 year old man who is currently convicted of offences of a sexual nature utilising the Internet. He has a protracted history of psychiatric issues, mainly Depression and Anxiety. Mr Speering's offending behaviour impresses as likely motivated by his psychological issues, intimacy and social isolation.

52 There is no satisfactory evidence that the appellant's psychiatric symptoms of depression and anxiety were the cause of his offending. Rather, they appear to be an explanation for what he did. The report of Mr Summerton supports that conclusion:

In the context of dealing with his brother's and mother's emotional difficulties Mr Speering was diagnosed with chronic fatigue syndrome when he was 19 years old and he has been on various forms of antidepressant medication since that time. It appears that the given diagnosis was depression related and he has been under the care of a psychiatrist in relation to managing depression over the most recent two year period. His domestic difficulties had some impact on his interpersonal interactions and having consistently experienced some reserve in social settings he became increasingly comfortable in the context of communicating via [the] Internet. His use of the Internet included a focus on pornography though he was adamant that he had never considered accessing material involving children.

53 The sentencing judge took full account of the psychological assessments of the appellant, including the information available in relation to his mental health. He did have a history of psychiatric issues, including depression and anxiety, and was on medication. These factors were carefully balanced by the sentencing judge against the issue of general deterrence.

54 Although the appellant places reliance upon the decision in R v Richards (1999) WASCA 105, in that case Pidgeon J (with whom Ipp J agreed) said, at [45], that the fact that a person suffered from depressive illness did not mean that the circumstances of the offender prevailed over the offence to the point where the case was not 'an appropriate vehicle for general deterrence when committing offences of the type committed' (sexual offences against a stepdaughter). Nor was it a case of the offender being 'mentally deficient'.

55 The appellant has undertaken a course of rehabilitative therapy. He has a number of other personal factors which tell in his favour (including his prior good character), but, at the same time, the circumstances of the offences can be said in this case to outweigh the appellant's personal circumstances. In Porter, Steytler P, at [8], said:

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].

56 Although, in the present case, the appellant contended that he had no sexual interest in girls under the age of 16 years, Mr David Summerton noted that the appellant had some difficulty in explaining why he had engaged a 12-year-old in a sexual conversation, particularly as he had contemplated follow-up conversation with that person. I accept Mr Summerton's conclusion that the appellant had 'obviously ... placed himself at some risk of engaging younger girls given that he had utilised the ... teenage chatroom periodically'.

57 Whatever the appellant's attitude to young people (as distinct from adults), the fact remains that he clearly utilised his computer to make electronic communication with a person he believed to be 12 years of age in circumstances where he was in breach of s 204B(3)(b)(i) and (ii) of the Criminal Code.

58 The sentencing judge gave full consideration to the appellant's personal circumstances, including his rehabilitation, his remorse and his fast-track pleas of guilty. Her Honour reached the conclusion that it was difficult to predict with any certainty, the question of reoffending and she did not, therefore, conclude that the appellant was at a significant risk of reoffending. In any event, her Honour concluded that the appellant's sexual interests were predominantly related to adult women, and there was no evidence of distorted attitudes which would have led him to offend again in relation to young children.

59 In all the circumstances, it seems clear to me that the sentences of imprisonment imposed by the sentencing judge were well within the range of sentences open to her. They were entirely in accordance with the sentences considered appropriate by this court in the trio of cases to which I have referred (Collier, Freemantle and Porter). I can, therefore, see no substance in ground 1 of the grounds of appeal.

60 This ground contends that too much weight was given to general deterrence, and that the appellant's mental health issues were such that his case was not an appropriate vehicle for general deterrence.

61 I have already dealt with this ground in the context of the first ground of appeal. In my opinion, it has no substance.

62 This ground contends that insufficient, or no, weight was given to the 'profound effect that a sentence of immediate imprisonment would have upon the appellant's disabled dependant [sic] younger brother'. The sentencing judge did give consideration to this issue. She attributed weight to it. Nevertheless, her Honour was unable to conclude that, for that reason alone (or for that reason in combination with any others), a sentence other than immediate imprisonment should be imposed. In this respect, I consider the sentencing judge to have been correct. The circumstances must be exceptional before a factor such as this could lead to a sentence other than one of immediate imprisonment.

63 In Burns (1994) 71 A Crim R 450, Anderson J (with whom Pidgeon J agreed) said, at 455, that when a prison sentence is unexceptional 'on every other consideration', especially general deterrence and protection of society, there is much less room to be merciful out of regard for hardship to family and dependants in serious crimes involving a definite degree of premeditation and wilfulness. This is not a case of 'serious crime involving a definite degree of premeditation and wilfulness', but offences against s 204B(3)(b) of the Criminal Code are undoubtedly serious offences.

64 In The State of Western Australia v Bruce [2004] WASCA 226, Steytler and McKechnie JJ, at [52], said (in the context of a 'drug case'):

[I]t is true that the respondent is a young man of prior good character who comes from a good family (an advantage denied to many others). It is also true that he faced financial difficulties affecting the whole of his family and that his incarceration will adversely affect his family in a number of ways. However, his personal antecedents are overwhelmed, in a case such as this, by the seriousness of his offending (cf Chick, above, at [26]) and the impact of his imprisonment on his family, while regrettable, is something he has in common with many other offenders and there is nothing exceptional about it: see R v Boyle (1987) 34 A Crim R 202 and Rogers v The Queen [1999] WASCA 239 at [35].

65 I can find nothing exceptional about the circumstances of the present case. Ms Fowler, in her report of 23 July 2008, writes of the appellant having adopted a supportive attitude towards all members of his family, with the appellant becoming 'the emotional protector and soother of his mother and brother'. The pre-sentence report records that the appellant resides with his brother in a property owned by their mother. The appellant's father resides in Western Australia, but the mother resides in Canberra. The appellant is said to have been forced to provide 'a high level of care to his younger brother due to the onset of mental health problems and the loss of parental support'. The report of Mr Summerton indicates that the appellant sees his father and his father's new partner on at least a weekly basis. There is nothing to suggest that the appellant's brother will be left uncared for and unable to cope with the demands of life in the event of the imprisonment of the appellant. I can, therefore, see no substance in this ground of appeal.

66 This ground complains that the totality of the appellant's offending behaviour was such that the sentence on count 3 should have been made concurrent with the sentences for counts 1 and 2. Had it been, it would have led to an effective sentence of 12 months' imprisonment. That was the effective sentence imposed in each of the cases of Freemantle and Porter. In each of those cases, there were multiple counts and 12 months' imprisonment was imposed on each count to be serve concurrently. In Collier, a case in which the respondent was convicted on his plea of guilty of three charges of using electronic communication with intent to procure a person who he believed to be under the age of 13 years to engage in sexual activity contrary to s 204B(4)(b)(i) of the Criminal Code, sentences of 18 months' imprisonment on each count were imposed, to be served immediately and concurrently with each other.

67 Each of the three cases to which I have referred was a prosecution appeal against sentence, to which the principles governing prosecution appeals against sentence were then applicable (see Porter (Steytler P) at [10] (Miller JA) at [20]). Because the principles relevant to prosecution appeals against sentence were applicable, there was some restraint imposed upon the court, as a prosecution appeal against sentence is said to put the prisoner in jeopardy of punishment for a second time, and it is conventional for the appellate court in those circumstances to impose a substituted sentence 'towards the lower end of the range of available sentences' (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (Kirby J) 340 - 341). Those considerations are not present in this case.

68 It cannot be said that the offences committed by the appellant are part of one transaction and, therefore, attract the so-called 'one transaction rule', with the result that sentences of imprisonment should be made concurrent (see Walgar v The State of Western Australia [2007] WASCA 241 (McLure JA) [9]). Here, the offences occurred over the space of one week, but there were seven days' separation between the offences which constituted counts 1 and 2, and the offence which constituted count 3.

69 Ultimately, the question is whether the totality principle has been infringed by the imposition of a cumulative sentence on count 3 on the indictment. There have been many statements of the totality principle. It is generally accepted that there are two limbs to the principle (see Roffey v The State of Western Australia [2007] WASCA 246 (McLure JA) [24] - [26]); namely, (1) the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, and (2) the court should not impose a crushing sentence. The two limbs are merged into the following statement in Jarvis v The Queen (1993) 20 WAR 201 (Ipp J) 206 - 207:

[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v R (1989) 3 WAR 372 at 379-380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.

While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312.

70 In the present case, I consider the total criminality of the appellant's conduct to be properly reflected in cumulating the sentence on count 3 with the sentences imposed (concurrently) on counts 1 and 2. In my opinion, the aggregate sentence imposed was within the range of sentences that could have been expected and unexceptional. I would, therefore, dismiss this ground of appeal.

Legislation Amendment and Repeal Act 2003

Protection (Offender Reporting) Act 2004

SPEERING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 266 (23 December 2008)

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SPEERING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 266 (23 December 2008)

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