Strzelecki Holdings Pty Ltd v Jorgensen
[2016] WASCA 77
•12 MAY 2016
BECHARA -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 77
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 77 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:61/2015 | 8 FEBRUARY 2016 | |
| Coram: | NEWNES JA MAZZA JA CORBOY J | 12/05/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | HASSAN BECHARA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Appeal by offender Using electronic communications with intent to procure a child to engage in sexual activity and with intent to expose a child to indecent matter Procuring a child to do an indecent act Whether sentences imposed were manifestly excessive Whether the total effective sentence infringed the first limb of the totality principle |
Legislation: | Criminal Code (WA), s 204B, s 320(5) |
Case References: | Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 Bell v The Queen [2001] WASCA 40 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fletcher v The State of Western Australia [2014] WASCA 219 Hine v The State of Western Australia [2010] WASCA 216 Hodder v The Queen (1995) 15 WAR 264 Juma v The State of Western Australia [2011] WASCA 54 Le v The State of Western Australia [2014] WASCA 120 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 Reid v The State of Western Australia [2009] WASCA 237 Roffey v The State of Western Australia [2007] WASCA 246 Saraceno v The State of Western Australia [2015] WASCA 100 Schaper v The State of Western Australia [2010] WASCA 178 Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 Speering v The State of Western Australia [2008] WASCA 266 Stokke v The State of Western Australia [2015] WASCA 131 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 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BECHARA -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 77 CORAM : NEWNES JA
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 1321 of 2014
Catchwords:
Criminal law - Sentencing - Appeal by offender - Using electronic communications with intent to procure a child to engage in sexual activity and with intent to expose a child to indecent matter - Procuring a child to do an indecent act - Whether sentences imposed were manifestly excessive - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 204B, s 320(5)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr A O Karstaedt
Respondent : Ms C Barbagallo
Solicitors:
Appellant : N R Barber Legal Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bell v The Queen [2001] WASCA 40
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fletcher v The State of Western Australia [2014] WASCA 219
Hine v The State of Western Australia [2010] WASCA 216
Hodder v The Queen (1995) 15 WAR 264
Juma v The State of Western Australia [2011] WASCA 54
Le v The State of Western Australia [2014] WASCA 120
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
Reid v The State of Western Australia [2009] WASCA 237
Roffey v The State of Western Australia [2007] WASCA 246
Saraceno v The State of Western Australia [2015] WASCA 100
Schaper v The State of Western Australia [2010] WASCA 178
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Speering v The State of Western Australia [2008] WASCA 266
Stokke v The State of Western Australia [2015] WASCA 131
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
Wilson v The State of Western Australia [2010] WASCA 82
1 NEWNES JA: I agree with Corboy J.
2 MAZZA JA: I agree with Corboy J.
CORBOY J:
The appeal and the result
3 This is an appeal against sentence. The appellant was convicted on his plea 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 of the Criminal Code (WA), and two counts of procuring a child under the age of 13 years to do an indecent act, contrary to s 320(5) of the Criminal Code. The appellant was sentenced to 16 months' imprisonment on each count, with a partial accumulation of the sentences so that the total effective sentence imposed was 4 years' imprisonment. A parole eligibility order was made.
4 The appellant's case contained two grounds of appeal. The first ground alleged that the total effective sentence infringed the first limb of the totality principle. The second ground alleged that the sentence imposed for each offence was manifestly excessive. The appellant was granted leave to appeal on each ground by an order made by McLure P on 14 July 2015.
5 I would allow the appeal on the first ground for the reasons that follow.
The facts on which the appellant was sentenced
6 The appellant was 43 years of age and resided in New South Wales at the time that he committed the offences. He adopted a false persona in communicating with the victims of his offences through an online chat programme.
7 The victim of counts 1 and 2 was a 13-year-old girl with whom the appellant communicated online by adopting the false persona of a 14-year-old boy. The appellant repeatedly asked the victim during online conversations to send naked images of herself or photographs of her breasts and vagina. The victim complied with the requests after the appellant told her he would never speak to her again if she did not do as he asked. The appellant also sent the victim two photographs of an erect penis.
8 The victim of counts 3 and 4 was an 11-year-old girl, S. The victim of counts 5 and 6 was S' sister, T. The appellant communicated with S and T by adopting the false persona of a 13-year-old boy.
9 The appellant told S and T that he loved them. He requested that they go on webcam during their online conversations and asked them to wear miniskirts and to take their underwear off while on camera.
10 Further, the appellant asked S to show her breasts and vagina to him on the webcam. S complied with that request on at least one occasion after the appellant told her that he would never speak to her again if she did not do as he asked. The appellant also attempted to send S a photograph of his penis and sent her a number of moving emoticon pictures showing a vagina being rubbed and a penis entering a vagina. On some occasions, he told S that he was playing with himself while chatting to her online.
11 The appellant also requested T show her breasts and vagina to him on webcam. T complied with that request on at least 10 occasions. She was unaware that the appellant was recording her actions on his computer and that a number of images of her vagina and naked chest were recorded and stored. The appellant also sent moving emoticon pictures to T showing a vagina being rubbed and a figure performing oral sex.
12 New South Wales police seized the appellant's computer equipment and mobile telephone in January 2010. A charge of producing, disseminating or possessing child pornography was made and the appellant was sentenced in December 2010 to a term of imprisonment of 6 months and 24 days for that offence.
13 Western Australian police completed a forensic examination of the appellant's computer in June 2011. An extradition request was submitted to the Director of Public Prosecutions (WA) in December 2012 and approved in May 2014. The appellant was arrested in August 2014 and extradited to Western Australia shortly afterwards. He pleaded guilty in the Perth Magistrates Court on 23 September 2014 and was committed to the District Court for sentencing.
14 In addition to the electronic communications the subject of the charges, the police located on the appellant's computer a 21-page text document that contained details for approximately 200 girls (AB 85 - 105). The State submitted that the document contained a record of girls with whom the appellant had communicated electronically and the persona that he had adopted in communicating with some of them. That submission was not disputed at the sentencing hearing.
The New South Wales conviction
15 The appellant was sentenced on the basis that his convictions in New South Wales and Western Australia concerned images that had been located on his computer which had been seized by the New South Wales police in January 2010.
16 The respondent undertook at the hearing of the appeal to make further inquiries regarding the appellant's conviction and sentence in New South Wales. The court subsequently received an affidavit made on 15 April 2016 by Detective Senior Constable Tomkins of the Western Australia Police. Detective Tomkins had been attached to the Online Child Exploitation Squad and had been involved in the investigation of the offences committed by the appellant.
17 The effect of Detective Tomkins' evidence was to confirm that the appellant's convictions in New South Wales and in the District Court concerned images found on the appellant's computer after it had been seized in 2010. Detective Tomkins further stated that he had recently viewed the images that had been the subject of the offence for which the appellant had been convicted in New South Wales. He described the images as 'generic child exploitation material images that I have seen over the years on many computers as they are in circulation across the internet'.
The appellant's personal circumstances
18 The appellant was approximately aged 43 years at the time that he offended and 49 years when he was sentenced. He was born and raised in Lebanon. His elder brother emigrated to Australia in about 1976. His mother emigrated in 1985 and the appellant followed her shortly afterwards. He married in 1990, but the relationship failed after approximately three years. The appellant has remained single since that time.
19 The appellant had worked as a courier and in businesses operated by his brother. However, he has cared for his elderly and frail mother since his release from prison in 2011. The appellant's mother required full-time care by the time that the appellant was arrested.
20 It was submitted on behalf of the appellant (and accepted by the State and the sentencing judge) that the appellant had disposed of his computer and mobile phone following his release to the community in 2011. As the sentencing judge observed, that had been done to remove 'an area of temptation' (AB 59).
21 The appellant was referred to a psychologist, Ms Zeinab Allaw, sometime after he was charged. A report of a psychological evaluation undertaken by Ms Allaw was provided to the court by the appellant's counsel.
22 Ms Allaw concluded that the appellant suffered from a dependent personality disorder and a major depressive disorder. She observed that the appellant did not apparently understand the nature of his offences nor comprehend the consequences of his actions: the appellant's 'low level of understanding and comprehension of the matter thus interfered with his rationality and understanding the consequences of the criminal offences and his behaviours'. Ms Allaw also considered that the appellant possibly had a low intelligence quotient and lacked the capacity to understand and empathise with the emotions of others as a result. In her opinion, the appellant required 'long term psycho-intervention in order to be able to overcome his psychological disturbances'.
23 Two medical reports relating to the appellant were also provided to the sentencing judge. They disclosed that the appellant suffers from coronary artery and other heart-related conditions and insulin dependent diabetes.
24 The appellant had been convicted of inciting a person under the age of 16 years to commit an act of indecency in May 1995. He was placed on a good behaviour bond for 12 months for that offence.
Sentencing remarks
25 The sentencing judge identified several factors that aggravated the seriousness of the appellant's offending: the difference in age between the appellant and his victims; the vulnerability of the victims; the use of a false persona to deal with the victims; the lengthy period over which the offending occurred; the large number of contacts between the appellant and his victims; the transmission of pornographic photographs; the retention of the photographs as electronic images on the appellant's computer; the coercion used by the appellant to induce the victims to comply with his requests; and the language adopted by the appellant in pretending to communicate as a teenage boy (AB 59 - 60).
26 The sentencing judge accepted that the appellant had cooperated with the police and pleaded guilty at the earliest opportunity. His Honour acknowledged that the plea had facilitated the administration of justice and spared the victims from having to give evidence and that the plea had also demonstrated that the appellant had accepted responsibility for his offending and was remorseful. However, his Honour noted that the appellant had been caught 'red-handed' and accordingly, he reduced the sentence that would otherwise be imposed by 20%, rather than the maximum discount allowed by s 9AA of the Sentencing Act 1995 (WA).
27 The sentencing judge further acknowledged that a sentence of immediate imprisonment would create some hardship for the appellant's mother and for the appellant (in that he was in poor health and had always resided in New South Wales). His Honour also stated:
[a]nd Mr Barber also refers to the significant delay in proceedings, coupled with you having spent time in custody in New South Wales in 2010 and 2011, would make it unfair, perhaps, that you should serve this term.
You might get a different result. And I'm not sure quite what different result there might be because there'd be extra offending and, on my understanding, in eastern states jurisdictions, sentences for this kind of matter might be heavier than they are in this state. But I accept that had there been two matters dealt with together, if that were possible, then there might be some degree of concurrence between the terms (AB 64).
28 His Honour considered that personal and general deterrence were significant factors in sentencing the appellant and emphasised the vulnerability of the victims, the need to protect children from such predatory behaviour and the adverse impact that this type of offending can have on young victims. His Honour referred, in that context, to the policy embodied in s 204B of the Criminal Code as explained by this court in The State of Western Australia v Johnson [2009] WASCA 224.
29 The sentencing judge concluded his remarks by expressly considering the first limb of the totality principle to determine the total effective sentence to be imposed.
The principles to be applied
30 This court can only intervene in an appeal against sentence if the sentencing judge has made a material error of fact or law. The court may allow the appeal if, in its opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.
Totality and manifest excess
31 The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295, 307 - 308 (McHugh J). The principle is expressly recognised in the Sentencing Act: s 6(1), read with s 6(3)(b). The total effective sentence imposed must bear a proper relationship to the overall criminality involved in all the offences for which an offender is to be sentenced, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. However, it is of little importance how the ultimate aggregate is made up where considerations of totality apply: Roffey [26].
32 An allegation that the aggregate sentence imposed infringed the totality principle is an allegation of inferred error. The sentence must be unreasonable or plainly unjust before it can be disturbed by an appellate court: Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26]; Stokke v The State of Western Australia [2015] WASCA 131 [63].
33 In determining whether a sentence is manifestly excessive, the court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of a relevant type; the seriousness of the offending and the personal circumstances of the offender. However, the court will not intervene merely because it might have imposed a different sentence to that which had been imposed. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
34 The question of whether a sentence is manifestly excessive or offends the totality principle is not answered simply by reference to other cases. As Buss JA observed in Le v The State of Western Australia [2014] WASCA 120:
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case [37] - [38].
35 In Mill v The Queen (1988) 166 CLR 59, the High Court considered an appeal against sentence where the offender had committed armed robberies in Victoria and Queensland. The offender had been sentenced to a term of imprisonment on the Victorian offences and on his release he was arrested and returned to Queensland, where he was convicted of the Queensland offence. On appeal from the sentence imposed for the Queensland offence, the High Court held that the approach which should have been taken by the sentencing judge was to ask what would be likely to have been the effective sentence imposed if the offender had committed all of the offences in one jurisdiction and had been sentenced at one time (66 - 67). See also Saraceno v The State of Western Australia [2015] WASCA 100.
Delay
36 Delay may be a relevant sentencing consideration independent of the totality principle: Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164. Undue or unreasonable delay not attributable to the conduct of the accused can, in appropriate circumstances, be mitigating [33]; see also Fletcher v The State of Western Australia [2014] WASCA 219 [40] (McLure P).
37 However, delay, in itself, is unlikely to be a significant mitigating factor in sentencing for sexual offending where the commission of the offence may be difficult to detect. It may be a significant factor where the offender has not offended during the intervening period so that the court can conclude that rehabilitation has already occurred and personal deterrence is, accordingly, less relevant. In Bell v The Queen [2001] WASCA 40, Anderson J observed:
I think it reasonably clearly appears from the authorities … that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence [8].
Hardship
38 In general, hardship on an offender's family is not a relevant consideration in sentencing. The offender must demonstrate a degree of hardship which is out of the ordinary before it can substantially mitigate the court's sentencing disposition: Juma v The State of Western Australia [2011] WASCA 54 [46], citing Hodder v The Queen (1995) 15 WAR 264, 287. Hardship and stress upon an offender's family is an almost inevitable consequence of a term of imprisonment.
Sentencing for sexual offending by electronic communication
39 Counts 1 and 2 on the indictment alleged offences against s 204B(2)(a) of the Criminal Code. The maximum penalty for that offence is 5 years' imprisonment. Counts 3 and 5 alleged offences against s 320(5) of the Criminal Code and counts 4 and 6 involved offences against s 204B(3)(a). The maximum penalty for those offences is 10 years' imprisonment.
40 As the sentencing judge observed, the policy embodied in the offence created by s 204B was explained by this court in Johnson. The policy was further explained by Steytler P (McLure JA agreeing) in Speering v The State of Western Australia [2008] WASCA 266 and Buss JA in Schaper v The State of Western Australia [2010] WASCA 178 (in which his Honour reviewed 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 and The State of Western Australia v Porter [2008] WASCA 154).
41 Steytler P observed in Speering that:
The seriousness with which the legislature views behaviour of this kind is reflected by the fact that the offence is one of using electronic communication with intent to procure the person in question to engage in sexual activity or to expose the person in question to indecent matter. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity or exposed to indecent matter: see, in this respect, The State of Western Australia v Collier … Also, s 204B(8) provides that, for the purposes of subs (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
This court has repeatedly said that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment and that, as with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse: Collier [43]; The State of Western Australia v Freemantle [2008] WASCA 98 [8]; The State of Western Australia v Porter [2008] WASCA 154 [8]. The court has also repeatedly said that, in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321]; Collier [42]; Freemantle [9], [41] and Porter [8], [10] - [11].
42 The primary sentencing considerations for sexual offending of this kind are punishment of the offender, specific and general deterrence and the protection of vulnerable children. The offender's personal circumstances are to be given less mitigatory weight that might otherwise be the case.
43 Further, Buss JA observed in Schaper that:
In Johnson, I said (Owen & Wheeler JJA agreeing) that in sentencing for offending against s 204B it is necessary, in each case, to evaluate the degree of seriousness of the offending, and the extent to which the offender poses a risk to real children and is at risk of re-offending under s 204B. An attempt by an offender to meet with the child or child persona, after having engaged in a grooming process in the course of the electronic communications, will often indicate that the offender is at a high risk of offending against real children. Generally, these features will mark especially serious contraventions of s 204B. Although, in a particular case, the personal circumstances of the offender (even highly favourable antecedents and otherwise good character) may carry little weight, they are always a relevant consideration. This observation applies also to an offender's prospects of rehabilitation [45].
The appellant's submissions in the appeal
44 It was submitted on behalf of the appellant that the sentencing judge had failed to give sufficient weight to the delay in prosecuting the charges, the fact that the appellant had served a term of imprisonment for a related charge and the further fact that the appellant had disposed of his computer and mobile phone on being released to the community in 2011 so that he could not access the internet.
45 It was also noted that the total effective sentence imposed on the appellant was the highest that had been considered by this court for offences against s 204B, reference being made to Hine v The State of Western Australia [2010] WASCA 216; The State of Western Australia v Rose [2010] WASCA 31; Reid v The State of Western Australia [2009] WASCA 237; Johnson; Porter; Freemantle and Collier as comparable cases. It was submitted that sentences imposed in those cases were 'consistently lower' than the sentences imposed for the appellant 'even in the absence of the additional mitigating features in the present matter - delay in prosecution, the previous sentence of imprisonment in respect of the 2010 conviction served after the commission of the present offences, and the appellant's rehabilitation' (appellant's submissions, par 57).
Disposition
Ground 2 – manifest excess
46 I do not propose to recount the facts and the sentencing outcomes for each of the cases to which the parties referred in their submissions. In Schaper, Buss JA extensively reviewed the pattern of sentencing for offences against s 204B and sentencing tables were annexed to the reasons of this court in Reid and Rose.
47 The appellant in Reid was convicted of 14 offences against s 204B(3)(b) - four counts of using electronic communication with intent to expose a person believed to be under the age of 13 years to indecent matter and ten counts relating to using electronic communication with intent to procure a person believed to be under the age of 13 years to engage in sexual activities. An appeal against sentences of 15 months' imprisonment for each count failed.
48 Wheeler JA (with whom McLure P and Owen JA agreed) noted that sentences of between 12 to 18 months had been imposed in Collier, Freemantle, Porter and Speering for this type of offending. Her Honour observed that, '[a] sentence of 15 months' imprisonment is within that range. It is hardly to be considered excessive, even in relation to a first offender, when regard is had to the statutory maximum of 10 years' [5].
49 The appellant in Rose was sentenced to 18 months' imprisonment on each of three offences against s 204B(2)(b), conditionally suspended for 18 months. A State appeal was allowed and the offender was resentenced to a term of 12 months' imprisonment on each count to be served immediately, but with concurrence so that the total effective sentence was 12 months' imprisonment.
50 Collier was also a State appeal in which the offender was re-sentenced to an immediate term of imprisonment of 18 months for offences committed against s 204B(3).
51 The offender in Schaper was convicted of multiple offences against s 204B(2). He successfully appealed against his sentence and, on being resentenced, terms of imprisonment varying between 18 months and 2 years 4 months were imposed for each offence. The offending was more serious in that the offender had sought to arrange a meeting with his victim for the purpose of pursuing sexual contact. However, there were a number of other features that were similar to the appellant's offending: a significant age disparity between the appellant and his victims; persistent offending over a period of some months; multiple offending; evidence of the use of the internet to pursue a sexual interest in young females that was, at least in the past, 'entrenched'; the electronic transmission of offensive or pornographic material and the storage of pornographic material involving children on a computer.
52 In relation to the offences committed by the appellant against s 320(5) of the Criminal Code, the offender in Saraceno was convicted of two offences against s 320(6). He filmed two young girls showering while they were staying at his house as guests of his stepdaughter. An appeal from a sentence of 10 months' imprisonment for each offence to be served cumulatively was dismissed by a majority of this court.
53 The sentencing judge did not distinguish between the sentences imposed on counts 1 and 2 for offences against s 204B(2) (for which the maximum penalty was 5 years' imprisonment) and the sentences imposed on the remaining counts (offences for which the maximum penalty was 10 years' imprisonment). However, I do not consider that the sentences imposed for the offences committed against s 204B(2) were outside a sound discretionary range merely because of the difference in the maximum penalty.
54 Further, in my view, the individual sentences imposed for the offences committed by the appellant were not manifestly excessive having regard to the circumstances of the offending, the appellant's personal circumstances (including his prior conviction for sexual offending involving children) and the pattern of sentencing for this type of offending. The offences were serious examples of this type of offence for the reasons identified by the sentencing judge. That is so even though it was apparent that the appellant did not intend to meet with his victims. The sentencing judge properly had regard to those factors that mitigated the seriousness of the offending and I am unable to infer any error in the individual sentences that were imposed for each count.
Ground 1 – totality
55 The question of whether the total effective sentence imposed infringed the first limb of the totality principle is more difficult. However, I have concluded that the total effective sentence was manifestly excessive when compared with sentences that have been imposed for this type of offending. I have reached that conclusion after taking into account the points of difference identified by the respondent in its submissions – principally, that the appellant offended against more than one victim; the offending involved 'real children' who, on occasions, exposed themselves to the appellant; the offences were not confined to offences against s 204B(2) and the offending was persistent (and to which I would add, the relatively unfavourable psychological report provided to the sentencing judge).
56 The sentencing judge referred to the principle identified in Mill and it is not alleged that his Honour made an express error in sentencing the appellant. However, the effect of Mill is that the total effective sentence for comparative purposes ought to be regarded as 4 years 6 months.
57 The respondent emphasised for comparative purposes that Schaper, Rose and Johnson concerned offences against s 204B(2), the submission being that the appellant's offending was more serious. However, counts 1 and 2 involved offences committed by the appellant against that section. That is also a matter which is, in my view, relevant in assessing the total effective sentence imposed by the sentencing judge.
58 As has been noted, the offender in Schaper was convicted of 19 offences against s 204B(2). He was also convicted of two counts of possession of child pornography, contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) and one count of possessing an obscene article, contrary to s 59(5) of the Classification Enforcement Act. The maximum penalty for the offence of possession of child pornography was 5 years' imprisonment and for possessing an obscene article, a fine of $5,000. The offender was resentenced to a total effective sentence of 3 years' immediate imprisonment.
59 The offender in Schaper committed offences against s 204B(2) but otherwise the offending was similar to the appellant's offending, save for two matters. First, as has been noted, the offender in Schaper sought to meet the victim for the purpose of pursuing sexual contact. That is a significant aggravating factor. Against that, the victim in Schaper was, in fact, a police officer posing as a young girl. Buss JA noted in Schaper that the offending was not aggravated by the victim being a 'real child'. His Honour also concluded that the offender's offending was not in the worst category for that reason and also because the offending only concerned one victim and the language used in the communications was not extreme.
60 The offender in Reid was convicted of 14 counts involving s 204B(3). As has been noted, an appeal against the sentence of 15 months' imprisonment for each count was dismissed. However, an appeal on the ground that the total effective sentence infringed the first limb of the totality principle succeeded. The offender had been sentenced to a total effective sentence of 3 years 9 months' imprisonment. Wheeler JA (with whom McLure P and Owen JA agreed) observed that:
Allowing for the fact that offenders in other cases generally had the benefit of significantly better antecedents, and earlier pleas of guilty, and allowing for the fact that the sentences in The State of Western Australia v Collier … Freemantle and … Porter … resulted from the application of the principles which were then applicable to State appeals, an effective sentence somewhat longer than any of the other sentences might have been justified. However, a sentence which is 21 months in excess of the most severe of them (Speering, which was itself described as a 'severe' sentence), is, in my view, clearly inconsistent with these cases [25].
61 The offender was resentenced to a total effective sentence of 2 years and 3 months' imprisonment. The offender's offending was less serious than the offending of the appellant in that there was no evidence that the offender intended to engage the victim in any of the sexual behaviour described in the electronic communications. He had the benefit of youth but his antecedents were described as being 'significantly worse' than the offenders in comparable cases [24]. The respondent also emphasised that the offender had been communicating with a police officer not a real child and that he had voluntarily ceased communicating with the officer. However, the evidence in this case - accepted by the prosecutor and the sentencing judge - was that the appellant had voluntarily disposed of his computer and mobile phone so that he would not be tempted to offend again and he has, in fact, not been charged with any offence since his release from prison in 2011.
62 The total effective sentence of 4 years' imprisonment (4 years 6 months' imprisonment when considered with the sentence for the New South Wales offence) represented the highest sentence imposed for this type of offending when compared with the sentences imposed in other cases to which we were referred. In my view, a total effective sentence of 3 years' imprisonment (3 years 6 months' imprisonment when considered with the New South Wales offence) would appropriately reflect the overall criminality involved in the appellant's offending and his personal circumstances.
63 The sentencing judge made a parole eligibility order. It is not possible to make the sentences imposed on each partly concurrent without adversely affecting the appellant's entitlement to parole. Accordingly, I would resentence the appellant to 12 months' imprisonment on each count solely on the ground of totality and order that the sentences imposed on counts 1, 3 and 5 be served cumulatively and the sentences imposed on counts 2, 4 and 6 be made concurrent.
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