Hinton v The State of Western Australia - [2023] WASCA 35

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HINTON -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 35
CORAM:   MAZZA JA
BEECH JA
HALL JA

HEARD:   7 FEBRUARY 2023
DELIVERED          :   22 FEBRUARY 2023
FILE NO/S:   CACR 44 of 2022
BETWEEN:   CALLUM THOMAS HINTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   IND 1587 of 2021

Catchwords:

Criminal law and sentencing - Cyber predator offences - Three offences of using electronic communication with intent to expose a person under 16 to indecent matter and two offences of distributing an intimate image without consent - Where appellant pleaded guilty and had substantial mitigating factors - Whether total effective sentence of 2 years 4 months' immediate imprisonment offended the first limb of the totality principle

Legislation:

Criminal Code (WA), s 204B(2), s 221BD

Result:

Appeal upheld
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	M D Howard SC
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Seamus Rafferty & Associates
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Bechara v The State of Western Australia [2016] WASCA 77
Reid v The State of Western Australia [2009] WASCA 237
Schaper v The State of Western Australia [2010] WASCA 178
Speering v The State of Western Australia [2008] WASCA 266
The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
The State of Western Australia v Freemantle [2008] WASCA 98
The State of Western Australia v Johnson [2009] WASCA 224
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v Rose [2010] WASCA 31
Vucemillo v The State of Western Australia [2017] WASCA 37

JUDGMENT OF THE COURT:

Introduction

The appellant was convicted, on his plea of guilty, of five offences. Three were offences, under s 204B(2)(a) of the Criminal Code (WA) (the Code), of using electronic communication with intent to expose a person under the age of 16 years to indecent matter. The other two offences, under s 221BD(2) of the Code, were of distributing an intimate image of a person without the person's consent.
The appellant was sentenced to 18 months' immediate imprisonment on each of the offences under s 204B and to terms of 10 months on each of the s 221BD offences, one of which was ordered to be served cumulatively. His total effective sentence was, thus, 28 months.
The appellant challenges his sentence, contending that each of the individual sentences was manifestly excessive and that his total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, we would uphold the challenge to the total effective sentence and resentence the appellant to terms of immediate imprisonment of 15 months on the s 204B offences and to a term of 6 months on count 4, to be served cumulatively, so as to produce a total effective sentence of 21 months' immediate imprisonment.

The facts

The facts were not and are not in dispute.[1]
[1] ts 12 - 13.
On an unknown date between 8 June 2019 and 9 June 2020, the appellant engaged in online conversations over Snapchat with a 15‑year‑old student to whom we will refer as JD. During those conversations the appellant requested the exchange of nude images of each other. The victim did not send any nude images of himself. However, the appellant sent several nude images and videos of himself to the victim (count 1).
On another unknown date in the same time span, the appellant engaged in further online conversations on Snapchat with JD. During those conversations, the appellant sent to JD a nude image and a video of another teenager, named SV, masturbating. JD and SV were known to each other. The distribution of that image and video to JD constitutes count 2. The distribution of that image without SV's consent constitutes count 3.
How the appellant obtained the image and video was unknown. The sentencing judge did not accept the appellant's explanation in that regard.
As to count 4, on another date unknown between 8 June 2019 and 9 June 2020, the appellant had further online conversations over Snapchat with JD. During those conversations, the appellant sent to JD a nude image and video of another teenager BH, who was masturbating and ejaculating. Again, BH and JD knew each other. Count 5 is constituted by the distribution of that image without BH's consent.
Again, how the appellant obtained the image and video was unknown.

The appellant's personal circumstances

The appellant was 23 or 24 years old when he committed the offences and 26 by the time of sentencing. At that time, he was single, had no dependants and lived with his father.
The appellant grew up in a close‑knit and loving family who continue to support him. Several members of his family provided references in extremely glowing terms.
The appellant completed year 12, following the ATAR pathway, and studied physical education and teaching at university.
The sentencing judge observed that the appellant's life appeared to revolve around playing and coaching football and cricket. However, when the charges came to light, the appellant stopped playing sport and has since become socially isolated.
When the appellant was about 15 years of age, he realised that he was bisexual. He engaged in online communications of a sexual nature with men. The appellant struggled with his sexuality, and with questions of when and to whom to disclose his sexuality, fearful that he would be ostracised from the sporting clubs that were a central part of his life.
Although the appellant trained to be a teacher, and was employed for a period of time as a relief teacher, a consequence of his offending is that he will not be able to secure any employment as a teacher in the future. Similarly, he will be unable to coach in junior sport.
Before the sentencing judge was a detailed psychological report concerning the appellant.
In speaking to the psychologist, the appellant gave an explanation as to how he came into possession of the explicit photographs and video the subject of counts 2 and 3. The judge did not accept that explanation.[2]
[2] ts 62 - 63.
The judge noted that, in his discussions with the psychologist, the appellant described JD as being 'forward' in his participation in the sexual conversations and coming across as sexually experienced. The sentencing judge observed that this was a common response of offenders of this kind, in attempting to minimise their offending behaviour and to apportion some responsibility with the victim.[3]
[3] ts 63.
The judge noted the psychologist's opinion that it was reasonable to form the conclusion that the appellant failed to form a professional and adult identity that allowed him to substantially differentiate himself from the teenagers with whom he was involved in teaching, and online, and to maintain appropriate boundaries.[4]
[4] ts 64.

Sentencing remarks

The sentencing judge identified a number of factors reflecting the seriousness of the appellant's offending as a whole:[5]
(1)In relation to the counts concerning the primary victim, JD, there was a nine-year age difference between the victim and the appellant. That reflected the victim's vulnerability and lack of maturity.
(2)The appellant's offending as a whole involved three separate victims, with the other two victims being BH, who was 15 or 16, and SV, who was 16.
(3)The offending was persistent and cannot be seen as a one‑off or isolated incident. It occurred over a period of time and had a deliberate and persistent nature to it.
(4)The appellant offended for the purpose of sexual gratification.
As to the last of these matters, her Honour found that the appellant had, at the time of his offending, a sexual interest in 15 and 16‑year‑old boys.
[5] ts 58 - 59.
The judge observed that a consequence of the sharing of intimate material concerning children was the real risk that the images and videos could be circulated on the internet exponentially, causing substantial further harm to the children depicted in such material.[6]
[6] ts 59.
The judge accepted counsel's submission that the pleas were entered at the earliest reasonable opportunity, and reduced the sentence, pursuant to s 9AA of the Sentencing Act 1995 (WA), by 25%.[7]
[7] ts 60.
The sentencing judge identified other mitigating factors as the appellant's youth, his prior good character, the cooperation he gave to police and his positive personal antecedents. The judge accepted that the appellant had genuine remorse but added the following:[8]
Whilst I do accept that you have genuine remorse, and I do take that into account by way of mitigation, I nevertheless find that it is tempered somewhat by what I find to be a lack of candidness on your behalf in relation to the circumstances of this offending because, as I've said, I don't accept your explanation as to how you came to be in the possession of the material in respect to counts 3 and 5. And that somewhat reflects on the limited nature of your insight and victim empathy.
You also made comments to the psychologist that I've identified which, in my view, were self-serving to a certain degree, and appeared to attempt to minimise or justify your offending and apportioned some blame on the primary victim. So whilst there is certainly genuine remorse, and I accept that is the case by way of mitigation, it is moderated for those reasons.
[8] ts 66.
Her Honour referred to the references from the appellant's family and friends. The references painted a picture of the appellant as a kind, caring, generous, honest, loyal and well‑liked member of the community who has generously given his time to community sport.[9]
[9] ts 65.
The sentencing judge observed that offences of the kind in respect of which the appellant was convicted are clearly serious offences ordinarily resulting in a term of imprisonment. Generally, at least, the paramount sentencing considerations are general deterrence and the need to protect children from cyber predators.
The sentencing judge found that the appellant had a low risk of reoffending, compared to contact offenders, and accepted the psychologist's opinion that the appellant was unlikely to progress to contact offending.[10] Her Honour considered that personal deterrence remained a relevant sentencing factor, in that the appellant had outstanding treatment needs, although the weight to be given to personal deterrence was moderated in all the circumstances.[11]
[10] ts 62.
[11] ts 66.
The judge imposed terms of 18 months' imprisonment for each of counts 1, 2 and 4, and terms of 10 months' imprisonment for each of counts 3 and 5. Her Honour considered that the sentence properly reflective of the overall criminality of the offending as a whole was 28 months. Consequently, her Honour ordered that the appellant serve counts 1 and 3 cumulatively, with the remaining counts to be served concurrently.
The judge determined that the seriousness of the appellant's offending, given its persistence and that it was engaged in for sexual gratification, meant that it was not appropriate to suspend the term of imprisonment. There is no challenge to her Honour's decision to impose immediate imprisonment.
The judge ordered that the appellant was eligible for parole.

Grounds of appeal

The appellant advances two grounds of appeal.
Ground 1 contends that the individual sentence on each of counts 1, 2, 3, 4 and 5 is manifestly excessive as to length. Ground 2 contends that the total effective sentence infringes the first limb of the totality principle.

The appellant's submissions

The appellant emphasises the following circumstances of his offending:[12]
(1)The complainant in counts 1, 2 and 5 was 15 years of age.
(2)The appellant did not make any attempts or arrangements to meet with the complainant for the purposes of engaging in physical contact or otherwise.
(3)While the offences could not be described as isolated, they all occurred within a relatively short period of time.[13]
(4)Counts 3 and 5 each concerned a single image. The distribution was not for the purpose of causing any harm to the teenage boys who were depicted, nor with any expectation of republication. Nor was there evidence of republication or that there was a real risk that this might occur.
[12] Appellant's submissions [19].
[13] The appellant's written submissions asserted that the offences all occurred between 8 and 9 June 2020. However, in oral submissions, counsel accepted that the position was otherwise.
The appellant submits that, having regard to those features of the offending and to the significant mitigating factors in the appellant's favour, including the 25% discount for the pleas of guilty, the sentences imposed in relation to counts 1, 2 and 4 were plainly unreasonable or plainly unjust.[14]
[14] Appellant's submissions [28] - [31].
The appellant further submits that, having regard to the matters already mentioned, the aggregate sentence did not bear a proper relationship to the overall criminality of the appellant's offending. In oral submissions, the appellant submitted that the individual sentences and the total effective sentence are inconsistent with customary standards of sentencing. In that regard, the appellant points to Speering v The State of Western Australia,[15] Reid v The State of Western Australia[16] and Vucemillo v The State of Western Australia,[17] emphasising the higher maximum applicable to many of the offences in those cases and to the higher risk of reoffending in Speering and Vucemillo.
[15] Speering v The State of Western Australia [2008] WASCA 266.
[16] Reid v The State of Western Australia [2009] WASCA 237.
[17] Vucemillo v The State of Western Australia [2017] WASCA 37.

The respondent's submissions

The respondent emphasises the intrinsic seriousness of the offences created by s 204B, referring to what was said in Schaper v The State of Western Australia.[18] It submits, in relation to counts 3 and 5, that the absence of an aggravating factor - such as an intention to cause harm to the depicted boys, or an expectation of republication - does not diminish the seriousness of the offending. The respondent makes a similar submission in relation to the absence, for counts 1, 2 and 4, of the aggravating factor of attempting to meet in person with the child.
[18] Schaper v The State of Western Australia [2010] WASCA 178 [57].
The respondent emphasises the judge's finding that the offending occurred over a period of time and had a deliberate and persistent nature. It also emphasises the finding that personal deterrence was relevant, notwithstanding the low risk of reoffending, given the appellant's sexual immaturity, lack of confidence concerning sexual relationships, and his not having taken steps to address outstanding treatment needs.
The respondent submits that the discount of 25% for the plea of guilty is unduly generous, given that the plea came at the seventh attendance before the Magistrates Court.
While the respondent acknowledged there was some factual overlap, it submits that that overlap is limited. Count 1 reflects entirely separate conduct, while counts 2 and 3, on the one hand, and counts 4 and 5 on the other, involve separate conduct and different victims. Moreover, the respondent emphasises that, as between counts 2 and 3, and as between counts 4 and 5, total concurrency was ordered. In that context, the respondent also emphasises that, favourably to the appellant, the sentence of 10 months on count 5 was made wholly concurrent, notwithstanding that it involved a separate, third victim, BH.
The respondent submits that consideration of comparable cases reinforces that the total effective sentence in the present case does not reveal implied error. In particular, the respondent points to the decisions in Speering, Reid, Bechara v The State of Western Australia[19] and Vucemillo.
[19] Bechara v The State of Western Australia [2016] WASCA 77.

Appeals against sentence - manifest excess and totality: general principles

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle, are well established:
(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 or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to (a) all relevant facts and circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), (b) all relevant sentencing factors, and (c) the total effective sentences imposed in comparable cases.
(4)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 that sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the bounds of a proper exercise of discretion.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

Section 204B of the Code

Legislative provision

Section 204B of the Code was inserted by s 4 of the Criminal Code Amendment (Cyber Predators) Act 2006 (WA). Section 204B, in its current form, provides as follows:
204B.Using electronic communication to procure, or expose to indecent matter, children under 16
(1)In this section -
computer generated image means electronically recorded data capable, by way of an electronic device, of being produced on a computer monitor, television screen, liquid crystal display or similar medium as an image, whether or not the image is in the form of text;
electronicincludes electrical, digital, magnetic, optical, electromagnetic, biometric and photonic;
electronic communication - -
(a)means a communication by electronic means; and
(b)without limiting paragraph (a), includes a communication by any of these means -
(i)email;
(ii)the Internet;
(iii)facsimile;
(iv)telephone, including mobile telephone;
(v)radio;
(vi)television;
indecent matter includes an indecent film, videotape, audiotape, picture, photograph, or printed or written matter;
picture includes an image, whether or not it is a computer generated image;
victim means a person whom an adult, contrary to subsection (2) or (3), intends to -
(a)procure to engage in sexual activity; or
(b)expose to any indecent matter.
(2)An adult who uses electronic communication -
(a)with intent to -
(i)procure a person under the age of 16 years to engage in sexual activity; or
(ii)expose a person under the age of 16 years to any indecent matter,
either in Western Australia or elsewhere; or
(b)with intent to -
(i)procure a person the offender believes is under the age of 16 years to engage in sexual activity; or
(ii)expose a person the offender believes is under the age of 16 years to any indecent matter,
either in Western Australia or elsewhere,
is guilty of a crime and is liable to imprisonment for 5 years.
(3)An adult who uses electronic communication -
(a)with intent to -
(i)procure a person under the age of 13 years to engage in sexual activity; or
(ii)expose a person under the age of 13 years to any indecent matter,
either in Western Australia or elsewhere; or
(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.
Alternative offence: subsection (2).
(4)For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), a person engages in sexual activity if the person -
(a)allows a sexual act to be done to the person's body; or
(b)does a sexual act to the person's own body or the body of another person; or
(c)otherwise engages in an act of an indecent nature.
(5)The acts referred to in subsection (4) are not limited to penetration or acts involving physical contact.
(6)For the purpose of subsection (2)(a)(i) or (b)(i) or (3)(a)(i) or (b)(i), it is not necessary to prove that the accused person intended to procure the victim to engage in any particular sexual activity.
(7)If, despite subsection (6), an intention to procure the victim to engage in any particular sexual activity is alleged, it does not matter that, because of circumstances not known to the accused person, it is impossible in fact for the victim to engage in the sexual activity.
(8)For the purposes of subsection (2) or (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
(9)Evidence that the victim was represented to the accused person as being under the age of 16 years, or 13 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused person believed the victim was under that age.
(10)It is a defence to a charge under subsection (2)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 16 years.
(11)It is a defence to a charge under subsection (3)(a) to prove the accused person believed on reasonable grounds that the victim was of or over the age of 13 years, but that does not prevent the person from being convicted of an offence under subsection (2).

Relevant principles concerning s 204B

The legislative history of s 204B was explained by Buss JA in The State of Western Australia v Johnson.[20] After setting out the Attorney General's second reading speech in relation to the Bill that became, upon enactment, the Criminal Code Amendment (Cyber Predators) Act, his Honour identified four points as to the purpose or object of s 204B that could be discerned from the Attorney General's speech:[21]
… First, Parliament was concerned with the apparent prevalence of predators seeking to use the internet and other types of electronic communication for the purpose of engaging a potential child victim in a conversation, gaining the child's trust, grooming the child for planned sexual exploitation, and attempting to arrange an actual meeting with the child for the purpose of engaging in sexual activity with the child. Secondly, Parliament was concerned with the apparent prevalence of predators using the internet and other types of electronic communication to persuade potential child victims to engage in indecent acts and to describe these acts by means of electronic communication with the predator. Thirdly, Parliament was concerned with the apparent prevalence of predators using the internet and other means of electronic communication to supply children with indecent material (a common method used in grooming to lower a child's inhibition to engaging in sexual activity) and to persuade children to send digital photographs of themselves to the predator by electronic means. Fourthly, s 204B was intended to prevent child abuse. The offences created by s 204B are, in essence, preventative offences. They merely require the existence of an intent to procure a child to engage in sexual activity or an intent to expose a child to indecent matter. Pursuant to s 204B, police officers may, in using the internet and other electronic communications, pose as children. Section 204B merely requires that an offender believe that he or she is communicating with a child. (original emphasis)
[20] The State of Western Australia v Johnson [2009] WASCA 224.
[21] Johnson [34]; see also Schaper [34].
This court has observed that the offences created by s 204B are intrinsically serious.[22] Generally at least, the dominant sentencing considerations in the case of offending against s 204B are punishment, general deterrence, personal deterrence and the protection of vulnerable children from cyber predators.[23]
[22] Johnson [94]; Schaper [57].
[23] Johnson [95].
In Vucemillo v The State of Western Australia, the court summarised principles relevant to offences under s 204B:[24]
(1)adults who make use of the internet to locate and make contact with children so as to engage them in sexual activity can ordinarily, as a matter of fact, expect to receive a term of immediate imprisonment;
(2)as with offences of possession of child pornography, there is a paramount public interest in protecting children from sexual abuse;
(3)the seriousness of these offences will often outweigh the personal circumstances of the offender, even in the case of a first offender;
(4)the extent to which the offender poses a risk to real children and the risk of reoffending are significant considerations in sentencing for an offence of this kind; and
(5)an attempt by an offender to meet with the child or child persona, after a process of grooming, will often indicate a high risk of reoffending against real children.
Offences featuring the last of these will generally mark especially serious contraventions of s 204B.[25]
[24] Vucemillo [49].
[25] Johnson; Schaper [45].
Several features of s 204B are apparent from its structure:
(1)As Steytler P observed in Speering, 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.[26] The penalty applies whether or not the child is actually procured to engage in sexual activity or exposed to indecent matter.
(2)Each of s 204B(2)(a), 204B(2)(b), 204B(3)(a) and 204B(3)(b) has two alternative limbs: one concerned with procuring the child to engage in sexual activity and the other concerned with exposing the child to any indecent matter. It cannot be assumed that one limb is inherently more serious than the other.
(3)The offences created by s 204B(2), relating to a person under the age of 16 years (or believed to be under the age of 16), and the offences created by s 204B(3), concerned with persons under the age of 13 (or believed to be under the age of 13), are, apart from the age of the victim, in materially identical terms. The penalty under s 204B(3) is a maximum of 10 years' imprisonment, while the penalty under s 204B(2) is a maximum of 5 years. This difference must be borne in mind in consideration of comparable cases.

Section 204B: comparable cases

[26] Speering [10].

We will refer only to the most material of the cases concerned with s 204B.
In 2007 ‑ 2008, there were three successful prosecution appeals against non‑custodial sentences for offending under s 204B: The State of Western Australia v Collier,[27] The State of Western Australia v Freemantle[28] and The State of Western Australia v Porter.[29] In all these cases, this court imposed terms of immediate imprisonment. In Collier, for three counts of offending against s 204B(3), the total effective sentence imposed by this court was 18 months' imprisonment. In Freemantle, the court imposed a total effective sentence of 12 months on five counts of offending under s 204B(3). In Porter, the offender committed seven offences against s 204B(2) over a period of three months in his communication with a child he believed to be a 13‑year‑old. This court imposed a total effective sentence of 12 months' imprisonment.
[27] The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310.
[28] The State of Western Australia v Freemantle [2008] WASCA 98.
[29] The State of Western Australia v Porter [2008] WASCA 154.
It must be borne in mind that these decisions were made before the introduction of s 41(4)(b) of the Criminal Appeals Act 2004 (WA); thus, the common law principles of double jeopardy governing prosecution appeals were applicable.
In Speering, the offender was convicted, after a fast‑track plea of guilty, of two counts of using electronic communication with intent to expose a person he believed to be under the age of 13 years to an indecent matter (contrary to s 204B(3)(b)(ii)) and one count of using electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity (contrary to s 204B(3)(b)(i)). The offender was aged 29 and believed he was communicating with a 12‑year‑old girl. He sent the child persona a photograph of an erect penis, with the photo appearing to have been taken shortly after ejaculation. He conversed with the child persona about masturbation, being aroused and having an erection, and he suggested to her that she should masturbate and gave her instructions on how to do it. The offender had favourable antecedents, being otherwise of good character; he had remorse, stable employment and responsibility for caring for his brother, who had a debilitating mental condition.
The offender was sentenced to 12 months' imprisonment on each count, two of which were to be served cumulatively, so that the total effective sentence was 2 years' imprisonment. The court rejected grounds of appeal asserting that the terms of imprisonment should have been suspended. Relevantly for present purposes, a ground of appeal asserting infringement of the first limb of the totality principle was rejected. Steytler P, with whom McLure JA agreed, characterised the total sentence as severe but not one that revealed error. Miller JA concluded that the total effective sentence was within the range of sentences that could have been expected and that it was unexceptional.
In Reid, the offender was convicted, following his pleas of guilty, of 14 counts of contravening s 204B(3)(b). Four counts related to using electronic communication with intent to expose a person whom he believed to be under 13 to indecent matter, and the other 10 concerned using electronic communication with intent to procure a person whom he believed to be under the age of 13 years to engage in sexual activity. The sentencing judge imposed a sentence of 15 months' imprisonment in relation to each count, ordering three of the terms be served cumulatively.
The offender was aged 21 or 22 at the time of the offending. Wheeler JA described the circumstances of the offences:[30]
The first offence took place on 19 June 2007, and the last on 20 July 2007, a period of a little under five weeks. The offences fell into three categories. In some, the appellant engaged the child in conversation about sexual matters. For example, in the first conversation, he told the child that he would buy her a telephone (he had represented to the child that he had his own business, selling telephones), and that he was going to teach her lots of things, including kissing and watching pornographic movies. He said that while she was watching these movies, he would show her his cock and have her play with it. Conversations of this type resulted in the counts of intent to expose a child to indecent matter.
In other conversations, the appellant asked the child to masturbate, giving her instructions about how to do so. There were two of these conversations - counts 3 and 13 - and they resulted in charges of intent to procure a child to engage in sexual activity.
The remaining eight counts of intent to procure a person under the age of 13 to engage in sexual activity relate to conversations like the one on 27 June 2007 (count 6) in which he told the child that he was going to take her to his house, show her his penis, undress her and have oral and vaginal intercourse with her. Despite the expressions of intent in those conversations, and the discussions about meeting the child for the purposes of having sex with her, the State conceded at the time of the appellant's sentencing that he did not, in fact, make any attempt to meet the child. Further, between July 2007 and March 2008, when police attended his home and seized his computer tower, he made no further attempts to contact or converse with the child.
[30] Reid [10] - [12].
The offender had poor antecedents, having done little work and apparently viewing drug dealing as his job. The offender had a significant criminal record, had previously been sentenced to immediate imprisonment and was assessed as being at a medium to high risk of reoffending.
Wheeler JA (with whom McLure P & Owen JA agreed) rejected two grounds of appeal asserting that the individual sentences were manifestly excessive. Her Honour referred to earlier cases of offending under s 204B(3) in which sentences of 12 to 18 months had been imposed for individual counts. A sentence of 15 months' imprisonment, being within that range, could not be considered excessive, even for a first offender, when regard was had to the statutory maximum of 10 years.[31]
[31] Reid [5].
The court upheld a ground of appeal asserting breach of the first limb of the totality principle, concluding that the total effective sentence was disproportionate to the criminality of the offending. The court resentenced the offender to 15 months' imprisonment on all but one count, with this count reduced to 12 months, to be served cumulatively, to produce a total effective sentence of 2 years 3 months.
A case concerned with s 204B(2) was The State of Western Australia v Rose.[32] In Rose, the offender was convicted, on his plea of guilty, of two counts of using electronic communication with intent to procure a person whom he believed to be under 16 years to engage in sexual activity (contrary to s 204B(2)(b)(i)) and one count of using electronic communication with intent to expose a person whom he believed to be under 16 years to an indecent matter (contrary to s 204B(2)(b)(ii)). The sentencing judge imposed a sentence of 18 months' imprisonment on each count, concurrent with each other, suspended for 18 months. This court allowed the State's appeal against sentence and resentenced the offender to 12 months' immediate imprisonment on each count, with the sentences on counts 2 and 3 to be served concurrently with the sentence on count 1.
[32] The State of Western Australia v Rose [2010] WASCA 31.
The circumstances of the offences were described by Newnes JA (Owen & Wheeler JJA agreeing) as follows:[33]
The first count of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity relates to an on‑line communication later on 10 March 2009, between 5.30 pm and 9.19 pm, in which the respondent engaged the child persona. In the course of that on‑line conversation the respondent discussed being the child persona's boyfriend and meeting the child persona in person for the purpose of sexual activity. The respondent again provided explicit instructions to the child persona on how to masturbate using a deodorant aerosol can, in the belief that the child persona was carrying out his instructions. In the course of the on‑line conversation, the respondent asked the child persona to provide him with an additional photograph of herself and he activated his webcam, revealing his face.
At about 3.30 pm on 11 March 2009, the respondent called the child persona on the mobile telephone number he had been given. The call lasted for 29 minutes. During the conversation the respondent again gave instructions on masturbation technique and spoke about arrangements for meeting in person, being in a boyfriend/girlfriend relationship, and engaging in sexual activity with the child persona.
The count of using electronic communication with intent to expose a person believed to be under 16 years to indecent matter relates to an on‑line conversation later on 11 March 2009, between 8.20 pm and 9.28 pm, in which the respondent engaged the child persona. In that conversation he discussed meeting the child persona for sexual activity. He discussed what they would do when they met. During the conversation the respondent activated his webcam to transmit to the child persona footage of him masturbating and exposing his penis. He told her that 'that [is] what [is] going in you'. The respondent also told the child persona that he loved her.
The second count of using electronic communication with intent to procure a person believed to be under 16 years to engage in sexual activity relates to an on‑line conversation in which the respondent engaged the child persona between 3.48 pm and 4.03 pm on 13 March 2009. During this conversation the respondent confirmed meeting arrangements with the child persona and discussed the sexual activities they would engage in when they met. He asked if she 'wanted it' with or without a condom and told her that it is better without a condom the first time. The respondent arranged to meet the child persona on 16 March 2009.
On 16 March 2009, at about 3.55 pm, the respondent was travelling on Highpoint Boulevard in Ellenbrook with the intention of attending the meeting with the child persona when he was intercepted by police. In the course of an interview at that location, the respondent admitted communicating with the child persona on‑line and claimed she had told him that she was 16 years of age. He said that the child persona had kept on bringing up sexual matters. The respondent claimed that people who knew her had told him that she was younger than 16 and he had intended to meet the child persona to tell her to leave him alone.
[33] The State of Western Australia v Rose [10] ‑ [14].
The offender was 25 at the time of offending. Having left school at 13, he had a variety of unskilled jobs for a relatively short duration. He was assessed by a psychologist as being of lower‑than‑average intelligence and immature. He was a medium to high risk of sexual reoffending.
In upholding the State's appeal, Newnes JA highlighted serious features of the offending, including the substantial age difference between the offender and the child persona, the transmission of sexually explicit material by webcam of the offender masturbating and exposing his penis, and the arrangement to meet for the purpose of sexual activity with the intention of having unprotected sexual intercourse.
Schaper was another case concerned with offending under s 204B(2). The offender committed 19 offences against that provision, as well as two counts of possession of child pornography. Buss JA identified a number of aspects of the offending that made it very serious:[34]
[34] Schaper [57].
(a)the appellant's use of 4 different personae which were carefully and purposely crafted and used in order to facilitate the grooming of the 'victim' … ;
(b)the appellant arranged a meeting with the 'victim' which he attended after having 'prepared' his vehicle in accordance with communications he had had with the 'victim' (the radio was tuned to the 'victim's' favourite radio station and he had brought with him her favourite chocolate bar) … ;
(c)contrary to the appellant's assertion, the circumstances of the offences evinced an intention by him to pursue sexual contact with the 'victim' at the meeting … ;
(d)the age disparity between the appellant and the 'victim', being 50 years;
(e)the length of the offending behaviour, being a 3‑month period from early July 2008 to early October 2008;
(f)the number of offences committed: the s 204B offences were committed over 15 separate days, sometimes on multiple occasions on one day, using multiple personae;
(g)the appellant's offending was not an isolated episode: over 10 ‑ 15 years he had used the internet to pursue an entrenched sexual interest in young females … ;
(h)the appellant's offending included the electronic transmission of offensive or pornographic material … ; and
(i)child pornography was found on the appellant's computer …
The reasons otherwise do not reveal details of the offending.
Buss JA, with whom Mazza J agreed, found that the total effective sentence of 4 years' imprisonment imposed by the sentencing judge exceeded what was required to reflect the offender's overall criminality. The court resentenced the offender to 18 months' imprisonment on counts 1 to 4, 2 years' imprisonment on counts 5 to 15, and 2 years 4 months' imprisonment on counts 15 to 19, all to be served concurrently with the sentence on count 19. On each of counts 20 and 21, the child pornography charges, the court imposed a term of 8 months' imprisonment. Count 20 was ordered to be served cumulatively on count 19, producing a total effective sentence of 3 years' immediate imprisonment.
In Bechara, the offender was convicted, following his plea of guilty, of four counts of using electronic communication to procure a child to engage in sexual activity or to expose a child to indecent matter, contrary to s 204B. Counts 1 and 2 were offences against s 204B(2), while counts 4 and 6 concerned s 204B(3). The offender was also convicted of procuring a child under 13 years to do an indecent act, contrary to s 320(5) (counts 3 and 5).
The offender was 43 years old at the time of the offending. The victim of counts 1 and 2 was a 13‑year‑old girl with whom the offender communicated by adopting the false persona of a 14‑year‑old boy. The offender repeatedly asked the victim, during online conversations, to send naked images of herself and photographs of her breasts and vagina. Ultimately, the victim complied after the offender told her he would never speak to her again if she did not do so. The offender also sent the victim two photographs of an erect penis. The victim of counts 3 and 4 was an 11‑year‑old girl whose sister was the victim of counts 5 and 6. The appellant communicated with them by adopting the false persona of a 13‑year‑old boy. The offender asked the first of these victims to show her breasts and vagina to him, a request with which she complied after he said he would never speak to her again if she did not do so. The offender made the same request to the other victim, who complied on at least 10 occasions. The offender also sent to her moving emoticon pictures showing a vagina being rubbed and a figure performing oral sex.

Upon seizure of the offender's computer, he was charged in New South Wales with producing, disseminating or possessing child pornography - for which he was sentenced to 6 months' imprisonment - as well as convicted and sentenced in Western Australia in respect of the charges the subject of the appeal in this court.
The offender's appeal against the individual sentences of 16 months' imprisonment was rejected, but his challenge to the total effective sentence of 4 years' imprisonment was successful. This court resentenced the offender to 12 months' imprisonment on each count, with a total effective sentence of 3 years (3 years 6 months when the New South Wales conviction was taken into account).
In Vucemillo, the offender was convicted after a trial of one count of using electronic communication with intent to procure a person believed to be under 16 years of age to engage in sexual activity, contrary to s 204B(2)(b) (count 1), and one count of possession of child exploitation material, contrary to s 220 (count 2). He was sentenced to a total effective sentence of 2 years 6 months' imprisonment, with cumulative terms of 2 years on the first count and 6 months on the second (reduced from 15 months on totality grounds). The offender regularly engaged in sexually explicit communications with a 14‑year‑old girl persona - who was, in fact, a police officer - who had responded to an advertisement placed by the offender. In the course of those communications, among other things, the offender told the persona that he wanted 'to fuck' her; he referred to sex toys and said he could show her what to do with them; he discussed meeting on the train and sliding his hand up her skirt; he asked her whether she shaved, if she used tampons and if her hymen had broken; and he said that he wanted to lick her genital area. He suggested they meet to go shopping for some sexy panties. The offender was then arrested.
The offender was assessed as a moderate to high risk of reoffending, with no insight into, or remorse for, his offending. In part, that was attributable to his mental impairment, which also meant that general deterrence was to be given diminished weight. However, the mental impairment also increased the need for specific deterrence and the protection of the public.
While the court considered that, in isolation, the term of 6 months' imprisonment on count 2 might be thought to be high, the total effective sentence did not infringe the totality principle. By implication, the court concluded that the criminality of count 1 amply justified the 2‑year term of imprisonment imposed in respect of it.

Disposition

The appellant's offending had a number of serious features, including that the appellant knew that he was conversing with a 15‑year‑old. Having requested that they exchange nude images, he sent nude images and videos of himself. While the appellant did not directly use his position as a relief teacher and sports coach, as a teacher and coach he should have well known the inappropriateness of communicating in this vein with a 15‑year‑old.
As the sentencing judge found, the appellant had a sexual interest in 15 and 16‑year‑old boys at this time and committed these offences for the purpose of sexual gratification. In other words, the appellant sent the images of himself in the hope of inducing the victim JD to produce nude images of himself and send them to the appellant.
The sentencing judge also found, as the respondent emphasises, that the appellant's offending exhibited a degree of persistence. While her Honour did not explain that finding, it is, having regard to the prosecution brief, to the following effect. The appellant was persistent in his efforts to keep on foot his communication with JD. When JD blocked the appellant on Instagram and Snapchat, the appellant successfully requested others to have JD unblock him so as to then resume the contact. However, the weight to be attributed to the finding of persistence is diminished by the sparseness of the facts, stated by the prosecution and revealed by the prosecution brief, as to the circumstances of the offending. The relationship between the appellant's offending conduct, in sending the nude images and videos, and his persistence in keeping communications on foot is not revealed by the prosecution brief and so is unknown. For example, it is unclear whether the requests to have JD unblock the appellant were before, during, or after the appellant's course of conduct in sending the images and videos.
Another aspect of the seriousness of the appellant's offending is that, in sending to JD the nude image and videos of SV and of BH, the appellant offended against both the recipient - JD - and the subject of the videos, respectively, SV and BH. The fact that JD and SV were known to each other, as were BH and JD, was liable to magnify the embarrassment and other harm to the boys who were the subject of the transmitted material. Both those victims were young, BH being 15 or 16, and SV being 16. While there was nothing to specifically indicate a likelihood of republication, the very act of transmitting an intimate image of the person without the person's consent is liable to, and does, create the risk of republication. The existence of that risk, and the unknowable extent of potential republication, is liable to cause considerable stress for a victim of this kind of offending.
In our opinion, these serious features amply justified, indeed we think required, the sentencing judge's decision to impose immediate imprisonment.
On the other hand, the appellant made no attempt to meet with JD and was found to pose a low risk of reoffending. As already noted, it is cases involving an attempt by an offender to meet with the child, and where there is a high risk of reoffending, that reflect particularly serious examples of offences against s 204B.
The appellant had substantial mitigating factors in his favour. His sentence was discounted by 25% on account of his plea of guilty. While the respondent sought to criticise that discount as excessive, in considering whether the appellant's individual sentences are manifestly excessive, the court proceeds on the basis of the sentencing judge's evaluation of the discount for the plea of guilty. Further, the appellant had very positive personal antecedents, was of prior good character and cooperated with the police. The appellant committed the offences at a time when he was still youthful, sexually immature and coming to grips with his own sexuality.
The respondent emphasises the sentencing judge's finding that personal deterrence was relevant, as the appellant had not taken steps to address the outstanding treatment needs identified in the psychological report. In that regard, however, the psychologist's recommendation of treatment for the appellant, to which the sentencing judge referred, should be properly understood. The report did not suggest that further treatment was required in order to manage the appellant's risk of reoffending. Rather, the author observed that further treatment would address the appellant's feelings of shame regarding his sexual orientation and improve his feelings of self‑worth and confidence, which would enable him to be less guarded with others and to develop healthier adult sexual relationships outside of the internet.
While the offences created by s 204B are intrinsically serious, those offences are, to a significant degree, preventative in character, as is revealed by the focus on the offender's intent, rather than on the actual effect of the offender's conduct. The prohibitions in s 204B reflect a recognition by the legislature of techniques commonly used by would‑be abusers of children to gain a child's trust and to groom the child for sexual exploitation. That is why the most serious examples of offences under s 204B are those where the offender sought to meet with the child and where there is a substantial risk of the offender committing contact offences with the child.
Thus, the presence or absence of an attempt to meet the victim and the extent of the risk of the commission of contact offending are of central significance to the assessment of the seriousness of offending against s 204B. This must be kept squarely in mind in evaluating the appellant's criminality, including by reference to comparable cases.
In considering comparable cases, it is also important to keep in mind the applicable maximum penalty.
In a number of the comparable cases to which we have referred, this court upheld a ground of appeal alleging a breach of the totality principle and resentenced the offender. To our minds, consideration of those cases suggests that the appellant's total effective sentence is at least high; the question is whether it is so high as to reveal error.
The offender in Reid committed 14 offences against s 204B(3)(b). Thus, his offences carried a maximum term of 10 years' imprisonment. The offences were committed over a period of just under five weeks, and the offender was found to have a medium to high risk of reoffending. In stark contrast to the appellant in this matter, the offender in Reid was described as having poor antecedents. Bearing all those matters in mind, notwithstanding that Reid involved a single victim, the appellant's total effective sentence of 2 years 4 months does not sit comfortably with the total effective sentence of 2 years 3 months imposed in Reid.
Rose involved a single victim against whom the offender committed three offences. Nevertheless, it had a number of serious features that were absent from the present case. The child persona victim purported to be 13 years old. The offender's sending of indecent matter was coupled with extensive discussion directed to sexual activity between the offender and the victim and, importantly, the offender in Rose arranged a meeting for the purpose of having sexual intercourse with the victim. Bearing all those matters in mind, the total effective sentence of 12 months' imprisonment in Rose tends to suggest error in the appellant's total effective sentence of 2 years 4 months.
Again, Schaper concerned a single victim but had a number of very serious features. Far from having the benefit of youth, the offender was a man in his sixties who had an entrenched sexual interest in young females. He committed 19 offences against s 204B(2), over a three‑month period, as well as two counts of possession of child pornography. His offending included the electronic transmission of offensive or pornographic material, and child pornography was found on his computer. He arranged a meeting at which he intended to pursue sexual contact with the victim. The offender had, as he accepted, paedophile tendencies, and the court considered that there was a significant risk of his reoffending. Given all the serious features in Schaper, and the possession of child pornography charges, the appellant's total effective sentence does not sit comfortably with the total effective sentence of 3 years imposed by this court in Schaper.
Another case in which this court intervened on totality grounds is Bechara. We do not accept the respondent's submission that this decision suggests that the appellant's total effective sentence does not reveal implied error. Two of the offences in Bechara were against s 204B(3). There was also an offence of procuring a child under the age of 13 years to do an indecent act, the maximum penalty for which is 10 years. The offender in Bechara was 43. His offending was persistent over a period of some months. Through the internet he pursued his sexual interest in young females that was, at least in the past, entrenched. To our minds, the nature and extent of the differences between Bechara and the present case mean that it does not materially assist, one way or the other, in discerning whether there is implied error in the appellant's total effective sentence.
Even making full allowance for the application of the double jeopardy principle in Collier, Freemantle and Porter, the outcome in those cases (see [48] above), two of which concerned offences against s 204B(3), lends further support to the conclusion that the sentence imposed on the appellant is erroneously high.
In the end, although not without some hesitation, we have been persuaded that the appellant's aggregate sentence infringed the totality principle. In our view, the sentence exceeded the bounds of a sentence bearing a proper relationship to the overall criminality involved in the appellant's offending, having regard to all the facts and circumstances, including those referable to the appellant, and having regard to all relevant sentencing factors and to comparable cases. Ground 2 is made out.
Consequently, this court must resentence the appellant and it is unnecessary to determine ground 1.
We would resentence the appellant as follows. On each of counts 1, 2 and 4, we would impose a term of 15 months' immediate imprisonment. On each of counts 3 and 5, putting to one side totality, we would impose a term of 8 months' imprisonment. In order to give effect to our view that the appropriate total effective sentence is 21 months' imprisonment, we would order that the sentence on count 3 be 6 months' imprisonment and be cumulative on the sentence on count 1, with all other sentences to be served concurrently with the sentence on count 1. We would order that the appellant be eligible for parole and that the sentence be taken to have commenced on 13 May 2022.

Conclusion

For the above reasons, we would make the following orders:
1.Leave to appeal on each of grounds 1 and 2 is granted.
2.The appeal is upheld.
3.The sentence imposed by Wallace DCJ on 13 May 2022 is set aside and, in substitution, the appellant is sentenced as set out in [89] above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Research Associate to the Honourable Justice Beech
22 FEBRUARY 2023