Court of Appeal (WA)|2008-04-30|Before: Miller JA, As Miller JA, Steytler P, Lure JA

THE STATE OF WESTERN AUSTRALIA -v- FREEMANTLE [2008] WASCA 98 (30 April 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- FREEMANTLE [2008] WASCA 98

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Using electronic communication with intent to expose a child believed to be under 13 to indecent material - Section 204B(3)(b)(ii) Criminal Code - Using electronic communication with intent to procure a child believed to be under 13 to engage in sexual activity - Section 204B(3)(b)(i) Criminal Code - Offender sentenced to intensive supervision order - Whether manifestly inadequate - Whether sentence of imprisonment required

State appeal - Principles - Whether intensive supervision order manifestly inadequate - Whether sentence of imprisonment inevitable

Sentences of imprisonment of 12 months imposed, to be served concurrently

1 STEYTLER P: I have had the advantage of reading the reasons of Miller JA. It is consequently unnecessary for me to repeat the detail concerning the circumstances giving rise to this State appeal against sentence.

2 The respondent pleaded guilty on 5 October 2007 to four counts of using electronic communication with intent to expose a child believed to be under 13 to indecent material (s 204B(3)(b)(ii) Criminal Code (WA)) and one count of using electronic communication with intent to procure a child believed to be under 13 to engage in sexual activity (s 204B(3)(b)(i) Criminal Code). He was placed on an intensive supervision order for a period of 18 months. Supervision and programme requirements were imposed. An order was made that he undertake 80 hours of unpaid community work. The State appeals upon grounds that the sentence imposed was manifestly inadequate and failed to reflect the seriousness of the offences; that the sentencing judge placed undue emphasis on factors personal to the respondent; and that the sentence reflected the sentencing judge's mistaken conclusion that the respondent did not have paedophilic tendencies.

3 As Miller JA has explained in more detail, the respondent had used his home computer to enter into 10 online 'conversations' with a person he believed to be a 12-year-old girl but who was in fact a police officer. The respondent's antecedents were good. He was 28 years old at the time of the offences. He is married, with a young son. He is educated and in stable employment. He has no prior convictions for offending of this kind or, since 1998, of any kind. Such convictions as he had were minor.

4 The offending behaviour was serious. The conversations were sexually graphic, even though the 'child' was seemingly innocent when it came to sexual matters. The respondent told the 'child' that he would like to perform cunnilingus on her. He asked her whether she would perform fellatio on him. He encouraged her to masturbate and gave her instructions on how to do so. On two occasions he sent her a graphic colour image of a semi-erect penis ejaculating. He suggested to the 'child' that she should bring a friend to also engage in sexual relations with him. In one of the communications he said that he was having sex with a 12-year-old girl who had performed fellatio on him and allowed him to perform cunnilingus on her. He asked the 'child' to meet him for the purpose of engaging in sexual acts.

5 There is one important mitigating factor in the offending behaviour. It is that the respondent voluntarily 'blocked' the 'child' from his MSN account in February 2007. He did not again communicate with her and never met with her.

6 The respondent attempted to explain his behaviour by saying that he was having problems with his wife until February 2007, that he was emotional and that he was drinking every day after work. I should mention, in this last respect, that many of the conversations occurred in the early afternoon and one of them occurred in the morning.

7 A psychological report prepared in respect of the respondent for sentencing purposes suggests that he has a simplistic view of his sexual offending and that he does not fully recognise the seriousness of his actions or the impact that conduct of this kind can have on a child. He presents as a medium to low risk of sexual reoffending.

8 This court has relatively recently (days after the sentence was imposed in this case) made it plain, in The State of Western Australia v Collier [2007] WASCA 250 [43], that adult persons who make use of the internet to locate, and make connection with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. The court also said [24] - [25] that the seriousness of offending behaviour of this kind is underlined by the fact that the maximum penalty of 10 years' imprisonment has been set for the offence of using electronic communication with intent to procure a child, or the person believed to be a child, to engage in sexual activity. The penalty applies whether or not the child is actually procured to engage in sexual activity. The court also pointed out that s 204B of the Criminal Code was introduced as a measure against an increasing trend of paedophiles using the internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending. That underlines the need for deterrence.

9 Also, it is well recognised that, in cases involving sexual offending against children, the seriousness of the offending 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] and the cases there cited; Collier [42].

10 In my opinion, this is a case that demanded a term of immediate imprisonment, even allowing for the fact that the respondent voluntarily stopped his offending behaviour. In my respectful opinion grounds 1 and 2 have been made out. The sentence failed adequately to reflect the seriousness of the offending behaviour and placed undue emphasis on

factors personal to the respondent. It also seems to me, with due respect, that the sentencing judge erred in finding that the respondent did not have paedophilic tendencies. In my opinion, the respondent's offending behaviour is explicable only by paedophilic tendencies.

11 Because this is a State appeal, the principles referred to in Collier ([20] - [23]) are applicable. Even taking those principles into account, it seemed to me at the conclusion of argument on the hearing of the appeal, that the appeal should be allowed and that a sentence of 12 months' imprisonment, with eligibility for parole, should be substituted for that imposed by the sentencing judge.

12 It was for these reasons that I joined in the decision of the court to make those orders.

14 MILLER JA: At the hearing of this appeal the court was unanimous in allowing the appeal, quashing the intensive supervision order imposed by the sentencing judge and resentencing the respondent to a period of immediate imprisonment for 12 months on each count on the indictment to be served concurrently and with effect from 14 April 2008. An order for eligibility for parole was also made. The following are my reasons for joining in that decision.

15 The respondent pleaded guilty in the District Court at Perth on 5 October 2007 to four counts of using electronic communication with intent to expose a child believed to be under 13 to indecent material (s 204B(3)(b)(ii) Criminal Code (WA)) and one count of using electronic communication with intent to procure a child believed to be under 13 to engage in sexual activity (s 204B(3)(b)(i) Criminal Code). After hearing submissions on sentence, the sentencing judge declined to impose a term of imprisonment in relation to the counts in question and, instead, placed the respondent on an intensive supervision order for a period of 18 months. Supervision and programme requirements were imposed and an order made that the respondent undertake 80 hours of unpaid community work.

16 On 18 January, Wheeler JA granted to the appellant leave to appeal the respondent's sentence. The grounds of appeal are in the following terms:

The learned sentencing Judge erred in law in that the sentence imposed:

(a) failed to adequately reflect the seriousness of the offences and the need to provide adequate punishment for the offending conduct, in particular having regard to:

(i) the age disparity between the child he believed he was dealing with (12 years) and the Respondent (28 years);

(ii) the fact that the offences were committed over a period of time;

(iii) the fact that the Respondent continually urged the child he believed he was dealing with to meet with him so they could engage in sexual intercourse and other sexual acts; and

(iv) the continued and gross nature of the Respondent's exploitation of the child he believed he was dealing with, having regard to the grossly offensive and sexually explicit language he used in his communications.

(b) failed to adequately reflect the need for both personal and general deterrence in circumstances where there is a need to protect children in the community from sexual exploitation.

(c) was manifestly inadequate having regard to the matters set out in l (a) and 1 (b), the maximum sentence prescribed by law for the offences and the standards of sentencing customarily observed with respect to the offences.

The learned sentencing Judge erred in placing undue emphasis on factors personal to the Respondent and insufficient emphasis on the seriousness of the offences as revealed by the objective and admitted facts.

The learned sentencing Judge erred in concluding that, on the materials before him, the respondent did not have paedophilic tendencies.

(i) The conduct the subject of the offences disclosed a sexual interest in female children aged 12 years;

(ii) The conduct the subject of the offending was consistent with certain stages of paedophilic behaviour identified in research by the Australian Institute of Criminology;

(iii) The learned sentencing judge gave undue weight to an opinion in a psychological report that the respondent's 'self report suggests the absence of entrenched sexual interest in children' when the overall tenor of the report did not support an objective conclusion that the respondent lacked paedophilic tendencies.

17 The facts were presented to the trial judge on 5 October 2007 by counsel for the prosecution. They revealed that, between 29 December 2006 and 1 February 2007, the respondent, using his home computer at his residential address, entered into 10 online conversations with a police officer posing as a 12-year-old girl. He used the MIRC and MSN Messenger Internet chat programmes to do so. He believed the police officer to be a 12-year-old girl. I shall refer to the recipient of the respondent's communications as 'the child'.

18 The first count on the indictment related to the respondent's conduct on 29 December 2006. He sent the child a picture of a penis. Count 2 related to his acts on 3 January 2007. He again sent the same photo of a penis to the child.

19 Count 3 related to a communication that occurred on 3 January 2007. The respondent encouraged the child to insert two fingers into her vagina and suggested that she masturbate. He gave instructions as to how she should do so.

20 Count 4 related to the acts of the respondent on 8 January 2007, when he exposed the child to indecent language. This included the respondent talking about taking the child's virginity and also engaging her in oral sex. There was discussion about ejaculation. Examples of what the respondent said in this Internet conversation are as follows (the respondent's internet user name within the messaging system used was 'Ashtrey' and the child's 'happee_(A)ngel'):

21 Count 5 related to an online conversation on 24 January 2007 when the respondent again exposed the child to indecent language. He discussed the issue of menstruation and how the child would not fall pregnant if they had sexual intercourse. He spoke of ejaculation and also suggested that the child should bring a friend so that he could have sex with her as well.

22 The respondent was interviewed by detectives on 1 May 2007. He participated in a video record of interview. He admitted all offences. He claimed he was intoxicated at the time of the conversations. He said that he was going through problems with his wife at work, was emotional and was drinking every day after work. He claimed to have no recollection of sending a photo of his penis to the recipient. He said that he thought the girl was older than 12 years, but he agreed that it was unacceptable to use the language that he did to a 12-year-old. He claimed that, regardless of the proposals to meet the child, he never intended to follow up with actual meetings. He claimed to have blocked the girl from his MSN account in February because he was starting to 'work things out with his wife'.

23 The pre-sentence and psychological reports which were provided to the sentencing judge revealed that the respondent was 28 years of age, a married man and a produce broker by occupation. The pre-sentence report recorded that the respondent was adamant that he did not harbour any particular sexual interest in his actions and this was not the motivation in his decision to engage in the behaviour he did. He explained to the pre-sentence report writer that the incident was 'fantasy' and that his intention was to 'joke and mess around'.

24 The psychological report revealed that the respondent did not fully recognise the seriousness of his actions and the impact that Internet conversations of the type in question could have upon a child. The writer concluded that the respondent presented as a 'medium-low risk of sexual reoffence' and stated that he required treatment in three domains, being his sexual interests, his social and emotional functioning, and his self-management.

25 The writer of the psychological report considered that the respondent presented with a simplistic view of his sexual offending. His 'self-report' suggested 'the absence of entrenched sexual interest in children' and stated that his sexual interests lay with adult women. The sentencing judge was later to place emphasis upon this statement. It should, however, be stressed that it was not a conclusion of the psychologist, but the respondent's own 'self-report'.

26 The sentencing judge first summarised the facts of the case. He then pointed out that the respondent had no prior convictions of a similar nature and no convictions since 1998. In fact, his only convictions were for two counts of stealing as a servant on 6 March 1998, for which he was fined $500.

27 The sentencing judge noted that the respondent claimed that he was under the influence of alcohol at the time he entered into the offending behaviour. His Honour stated that he was 'not absolutely convinced' as to the truth of that because the offences occurred on four separate occasions.

28 The sentencing judge took account of the fact that despite being informed of the child's age the respondent continued to chat to her. He gave no explanation for the likely impact that his action may have had upon a child victim of that age.

29 The sentencing judge turned to matters personal to the respondent. His Honour noted that he was 29 years old at the time of sentencing, and 28 at the time of the offences. He was married and had a 2-year-old son. He was educated to year 12 before completing an electronics engineering course at TAFE. He was in stable employment and appeared to come from a stable family.

30 The sentencing judge referred to the psychological report and concluded that the respondent did not have 'paedophilia tendencies' that required a great deal of addressing. He noted however that there were certain matters that needed to be addressed.

31 The sentencing judge noted the maximum penalties of 10 years' imprisonment for each count on the indictment and said:

Self-evidently these offences are designed to protect young children in the computer age whereby reason of the access to computers and the amount of material on the Internet these days, these children are extremely vulnerable. Accordingly one of the principle matters to consider in sentencing is that of deterrence, both personal and general and linked with that the protection of children.

32 After considering the options for punishment the sentencing judge concluded that it was not a case that required a term of imprisonment whether immediate or suspended. An intensive supervision order was imposed with programming and supervision requirements, and a community service order.

Applicable principles relevant to prosecution appeals

33 The principles applicable to State appeals against sentence are well known and have been stated many times. In Caporn v The State of Western Australia [No 2] [2008] WASCA 26 [88] I made brief reference to them in the following terms:

The appeal against sentence is a prosecution appeal, the principles in relation to which have been stated many times. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] the court said:

'The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.'

See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] - [4] (Gleeson CJ and Hayne J).

These principles were analysed in greater detail by Steytler P (McLure & Miller JJA concurring) in The State of Western Australia v Collier [2007] WASCA 250 [18] - [23].

34 This ground essentially contends error by reason of the sentencing judge's failure to adequately reflect the seriousness of the offences committed by the respondent, and failure to reflect the need for both personal and general deterrence in cases of this nature.

35 The submissions of counsel for the appellant accept that the respondent did not commit a sexual offence against an actual child. However, it is said that the respondent's offending manifested a propensity to engage in sexual activity with a child under the age of 13 years and that he was prepared to engage in the sexual exploitation and corruption of a person he believed to be a child. He was also prepared to procure a person he believed to be a child to engage in sexual activity.

36 Counsel for the appellant listed in written submissions a number of aspects of the respondent's communication with the child which he contended were both sexually explicit and engaged in for the respondent's own sexual gratification. They were:

(i) statements that he would like to perform cunnilingus on her;

(ii) asking the Child whether she would perform fellatio on him;

(iii) encouraging the Child to masturbate, on one occasion giving her instructions on how to do so;

(iv) asking the Child if she had seen a penis; and

(v) twice sending the Child a graphic colour image of a semi erect penis ejaculating - an image that he said to the Child was an image of his own penis.

(vi) suggestions that the Child should bring a friend to also engage in sexual relations with him.

Other aggravating aspects of the respondent's behaviour were said to be:

(1) His statement to the child in one of the communications that he was actually having sex with a 12-year-old girl who had performed fellatio on him and allowed him to perform cunnilingus on her;

(2) The respondent's request that the child meet him for the purpose of engaging in sexual acts; and

(3) The respondent's persistence in his attempts to procure the child to engage in sexual activity when he knew that his actions were unlawful.

37 In my opinion there is substance in these contentions. The conduct of respondent was particularly serious. Parliament has made it clear from the maximum penalty of 10 years applicable to offences of this nature that they are regarded as very serious offences. This was confirmed by this court in Collier [3] - [4] where the relevant provisions of the legislation were fully set out.

38 In Collier the offender committed offences similar to those under review in this case. He engaged a police officer who posed as a 12-year-old girl in an online conversation in an Internet chat room and subsequently communicated with her again online on three occasions over a period of just over two weeks. Steytler P at [7] - [10] set out in detail the nature of the communications and it is unnecessary to repeat them. An aspect of the case which is not present here is that the offender in Collier arranged to meet the child at a nearby park on a particular afternoon and actually went there at the appointed time. It was there that he was arrested.

39 In Collier [24] - [25] Steytler P made it clear just how serious offences of the type committed by the offender are:

There is no doubt that the legislature regards offences of this kind as serious. That is apparent merely from the existence of the penalty of 10 years' imprisonment that has been provided for. Hansard (Western Australia, Parliamentary Debates, Legislative Council, 9 November 2005, 6961) reveals that s 204B was introduced as a measure against an increasing trend of paedophiles using the internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending. Conduct of that kind is extremely serious, given the vulnerability of children and the long-term serious consequences which inevitably result from sexual offending against them. It is fundamentally important to deter potential offenders.

The seriousness with which the offence is viewed by the legislature is underlined by the fact that the maximum penalty of 10 years' imprisonment has been set for the offence of using electronic communication with intent to procure a child, or the person believed to be a child, to engage in sexual activity. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity, which would, of course, be a separate offence. Also, it is plain from the provisions to which I have referred that the legislature regards an offender's conduct as being no less reprehensible if an offender is communicating with a person believed to be a child, although not actually so, than if communicating with a person who is in fact a child. In my respectful opinion, that is not surprising. The first category of behaviour is no less morally reprehensible than the second: R v McGrath [2005] QCA 463; [2006] 2 Qd R 58 [31] (MacKenzie J with whom the other members of the court were in agreement).

40 At [43] Steytler P indicated that ordinarily a term of immediate imprisonment will be imposed upon adult persons who make use of the Internet to contact children in the way in which the respondent did:

It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography (as to which see Hutchins v The State of Western Australia [2006] WASCA 258), there is a paramount public interest in protecting children from sexual abuse.

41 The offender in Collier was a person with good personal circumstances and antecedents. However, at [42] Steytler P repeated what had been said in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321]:

The personal circumstances and antecedents of the respondent are favourable. However, it has often been said that, in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: see, for example, VIM [320] - [321] and the cases there cited.

42 In Collier the offender had been sentenced to imprisonment for 2 years on each count, conditionally suspended for a period of 2 years. The sentences were ordered to be served concurrently. On appeal, those sentences were quashed and sentences of 18 months imprisonment to be served immediately substituted. The sentences were ordered to be served concurrently. At [47] Steytler P said:

[T]his is a case in which it is necessary to impose a sentence of imprisonment to be served immediately. Anything less would significantly undervalue the seriousness of the appellant's offending behaviour and the need for a deterrent sentence. However, in the light of the considerations to which I have referred, and taking into account that this is a State appeal, it is appropriate to impose a lesser sentence than that which would otherwise have been merited for offending of this kind.

43 There are distinguishing features between the case of Collier and the present case. In particular, in the present case the respondent has the advantage of not having pursued the child to the point of attempted contact. Although he made several suggestions that the child might come to his place (and bring a friend) and engage in sexual activity, the closest that any arrangement came to a meeting appears to have been the discussion in the final communication on 1 February 2007 to the following effect:

44 It is also to the respondent's credit in this case that he terminated communication with the child and closed down the programme that he had opened.

45 Nevertheless, it seems to me that the imposition of an intensive supervision order by the sentencing judge was a wholly inadequate and inappropriate sentence in the circumstances. This was never a case for an intensive supervision order. It was clearly a case which called for a sentence of immediate imprisonment. This court is thus called upon to resentence the respondent. Resentencing requires consideration of ground 2 of the grounds of appeal.

46 This ground contends that the sentencing judge erred in placing undue emphasis on factors personal to the respondent and insufficient emphasis on the seriousness of the offences.

47 I have already referred to the fact that in Collier Steytler P at [42] stressed that in cases of this nature the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender.

48 The personal circumstances of the respondent were fully set out in the pre-sentence and psychological reports before the sentencing judge. I have already made some reference to these.

49 Of the two reports, the psychological report was the more significant report. Unfortunately, it contains a number of conclusions which are unsupportable. The first is the conclusion (tentative though it is) that the respondent had no entrenched sexual interest in children. This conclusion led the sentencing judge to find that the respondent did not have 'what are described as paedophilia tendencies'. However, the conclusion that the respondent had no entrenched sexual interest in children was reached by reference to his 'self report' and his own statement that his sexual interests lay with adult women. It does not appear to have been the consequence of any objective test.

50 Psychometric testing of the respondent (particularly the administration of a test known as the MCMI-111) revealed an invalid result. The respondent was described as under-reporting the presence of clinical symptomatology and interpersonal difficulty to a significant degree and far more than those within the normal population. The conclusion then was:

A response style such as this can indicate an overt attempt to positively manipulate the assessment outcome. However, it can also suggest that the individual is hesitant, reserved and over concerned with seeking the approval of others. Given the context in which this test has been administered, the writer anticipates that Mr Freemantle's results reflect the latter.

The hesitance with which the writer of the report reached this conclusion is apparent.

51 A more troubling aspect of the report is that the respondent was said to present 'with a simplistic view of his sexual offending' and without appreciating the seriousness of his actions. The writer said:

However, impressions gained do suggest that Mr Freemantle does not fully recognise the seriousness of his actions and the impact that such conversation could have upon a child.

Somewhat surprisingly, the writer then concluded that the respondent presented as being 'a medium-low risk of sexual re-offence' but saw him as having treatment needs in three particular domains, being (1) sexual interests; (2) social and emotional functioning; and (3) self management.

52 In all, the psychological report is confusing and contradictory. Its conclusion that the respondent had no entrenched sexual interests in children does not bear scrutiny, particularly in the light of the conduct of the respondent revealed in the transcripts of the Internet communications with the child. Only a person with paedophilic interests could have made such communications.

53 I accept the submission of the appellant that the sentencing judge gave undue attention or primacy to matters personal to the respondent and erroneously concluded that the respondent had no 'paedophilia tendencies'.

54 This ground is a specific contention that the sentencing judge erred in concluding on the materials before him that the respondent did not have 'paedophilia tendencies'.

55 I have already dealt with this ground in the context of ground 2. It need only be said that between 29 December 2006 and 1 February 2007 the respondent made 10 communications with the child, each of which was initiated by him with the exception of one, on 10 January 2007. The very nature of the communications is sufficient to indicate the paedophilic interests of the respondent, particularly the questions of the child as to what she was wearing, whether she had ever seen a penis, whether she had yet experienced her first period, whether she had begun puberty, and whether she would like to perform certain sexual acts with the respondent.

56 The communication on 29 December 2006 included reference to the respondent having sexual relations with a 12-year-old girl at the time he was speaking. The detail of what he said serves to illustrate that the respondent had paedophilia tendencies:

57 In written submissions the appellant made reference to research conducted by the Australian Institute of Criminology, identified and detailed by Ms S E Walker, Member for Nedlands in the Legislative Assembly of Western Australia during a Second Reading Speech upon the introduction of s 204B into the Criminal Code on 8 November 2005 (Western Australia, Parliamentary Debates, Legislative Council, 8 November 2005, 6893 - 6894). It is unnecessary to refer to this material. Whatever research has been conducted on the subject by the Australian Institute of Criminology may be a matter for consideration on another occasion, but it is presently unnecessary to determine what its status is and what import it has.

58 I consider that grounds 1 and 2 of the appellant's grounds of appeal have been made out. The sentence imposed by the sentencing judge was manifestly inadequate and failed to reflect the seriousness of the offences committed by the respondent. It did not sufficiently deal with personal and general deterrence, and it placed undue emphasis on matters personal to the respondent. There was no warrant for the conclusion by the sentencing judge that the respondent had no 'paedophilia tendencies' that needed to be addressed, as the facts of the case themselves, and material contained within the psychological report, suggested to the contrary.

59 As Steytler P made clear in Collier, 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 sentence of immediate imprisonment [42]. This is such a case. The conduct of the respondent was so serious that it could only have led to a sentence of immediate imprisonment. Whilst a sentence of suspended imprisonment is always open in a case such as this, I consider the offences to have been too serious to justify suspension.

60 Because the respondent was found to have terminated Internet communication with the child and to have shut down the Internet site there are considerations that favour a lesser term of imprisonment than might otherwise have been imposed. The fact that the respondent has performed the 80 hours of community service that were imposed as part of the intensive supervision order is also a factor in his favour.

61 Because this is a State appeal against sentence, and there are elements of double jeopardy which need to be taken into account, I consider that the appropriate term of imprisonment that the respondent should serve in relation to each count on the indictment is 12 months, with each term to be served concurrently.

62 It follows that, in my opinion, the appeal should be allowed and the sentence imposed by the sentencing judge quashed. In lieu thereof, sentences of 12 months' imprisonment should be imposed on each count, to be served concurrently. There should be an order for eligibility for parole and the sentence should take effect from 14 April 2008.

THE STATE OF WESTERN AUSTRALIA -v- FREEMANTLE [2008] WASCA 98 (30 April 2008)

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Judgment (95 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- FREEMANTLE [2008] WASCA 98 (30 April 2008)

Applicable principles relevant to prosecution appeals

Cases Cited (3)