The State of Western Australia v Collier
[2007] WASCA 250
•14 NOVEMBER 2007
THE STATE OF WESTERN AUSTRALIA -v- COLLIER [2007] WASCA 250
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 250 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:78/2007 | 7 NOVEMBER 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 13/11/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for review of decision to grant leave to appeal dismissed Appeal allowed Respondent resentenced | ||
| D | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ANDREW PAUL COLLIER |
Catchwords: | Criminal law State appeal against sentence Sexual offences Cyber predator Using internet with intent to procure a person believed to be under 13 years to engage in sexual activity Conditional suspended term of imprisonment manifestly inadequate |
Legislation: | Criminal Code (WA), s 204B |
Case References: | Chan (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 Hutchins v The State of Western Australia [2006] WASCA 258 Lowndes v The Queen (1999) 195 CLR 665 R (Cth) v Poynder [2007] NSWCCA 157 R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; (2005) 153 A Crim R 104 R v Campbell [2004] QCA 342 R v Clarke [1996] 2 VR 520 R v Hays [2006] QCA 20; (2006) 160 A Crim R 45 R v Kennings [2004] QCA 162 R v M, H [2007] SASC 41; (2007) 168 A Crim R 557 R v McGrath [2005] QCA 463; [2006] 2 Qd R 58 R v Osenkowski (1982) 30 SASR 212 Rogers v The Queen [2004] WASCA 147 S v The Queen [2004] WASCA 113 The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- COLLIER [2007] WASCA 250 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
ANDREW PAUL COLLIER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND 929 of 2007
Catchwords:
Criminal law - State appeal against sentence - Sexual offences - Cyber predator - Using internet with intent to procure a person believed to be under 13 years to engage in sexual activity - Conditional suspended term of imprisonment manifestly inadequate
(Page 2)
Legislation:
Criminal Code (WA), s 204B
Result:
Application for review of decision to grant leave to appeal dismissed
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
Appellant : Mr A L Troy
Respondent : Ms K J Farley
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Hutchins v The State of Western Australia [2006] WASCA 258
Lowndes v The Queen (1999) 195 CLR 665
R (Cth) v Poynder [2007] NSWCCA 157
R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; (2005) 153 A Crim R 104
R v Campbell [2004] QCA 342
R v Clarke [1996] 2 VR 520
R v Hays [2006] QCA 20; (2006) 160 A Crim R 45
R v Kennings [2004] QCA 162
R v M, H [2007] SASC 41; (2007) 168 A Crim R 557
R v McGrath [2005] QCA 463; [2006] 2 Qd R 58
R v Osenkowski (1982) 30 SASR 212
(Page 3)
Rogers v The Queen [2004] WASCA 147
S v The Queen [2004] WASCA 113
The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
(Page 4)
1 STEYTLER P: In June 2007 the respondent was convicted, after pleading guilty, on three charges of using electronic communication with intent to procure a person who he believed to be under the age of 13 years to engage in sexual activity contrary to s 204B(3)(b)(i) of the Criminal Code (WA). He was sentenced, on each count, to a term of 2 years' imprisonment, to be served concurrently with the other terms, conditionally suspended for a period of 2 years. The conditions included one that the respondent undertake a sex offender treatment programme. A direction was also imposed under s 84B(3) of the Sentencing Act 1995 (WA) that, during the period of the suspension, the respondent was not to utilise an internet chat programme.
2 The State contends that the sentences imposed were manifestly inadequate and that the sentences of 2 years' imprisonment should not have been suspended.
The relevant provisions
3 Sections 204B(2) and s 204B(3) read as follows:
(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.
4 Section 204B(4) provides that, for the purpose of s 204B(2)(a)(i) or s 204B(2)(b)(i) or s 204B(3)(a)(i) or s 204B(3)(b)(i), a person engages in sexual activity if the person allows a sexual act to be done to the person's body, does a sexual act to the person's own body or to that of another or other engages in an act of an indecent nature. The acts referred to in s 204(B)(4) are not limited to penetration or acts involving physical contact: s 204B(5). Section 204B(6) to s 204B(9) read as follows:
(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.
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The electronic communications
5 The circumstances giving rise to the three charges were as follows.
6 On 29 December 2006 the respondent engaged a police officer, posing as a 12-year-old girl ('Amy'), in an on-line 'conversation' in an internet chat room. He subsequently communicated with her on-line again on 30 December 2006, 15 January 2007 and 16 January 2007.
7 In the conversation on 29 December the respondent, then 24 years old, asked 'Amy' how old she was. She told him that she was 12 years old. She said that she was due to start high school in the following year. In the course of the discussions on 29 December and 30 December the respondent engaged 'Amy' in sexually explicit conversations. He did so notwithstanding that the police officer who was posing as the 12-year-old child gave him the clear impression that the girl was naive.
8 On 30 December 2006 the respondent again engaged 'Amy' in a sexually explicit on-line conversation. On this occasion he told her how to masturbate and, so far as he knew, persuaded her to do so.
9 On 15 January 2007 there was a further sexually explicit on-line conversation. In the course of it the respondent explained the nature of sexual intercourse and encouraged 'Amy' to meet with him so that he could have sexual intercourse with her.
10 On 16 January 2007, the respondent again instructed 'Amy' on how to masturbate and thought she was doing so. In the course of this on-line conversation, he also arranged to meet 'Amy' (who again told him that she was 12 years old) at a nearby park that afternoon. He went there at the appointed time and was arrested by police.
11 Count 2 on the indictment related to the offence on 30 December 2006. Count 3 related to the offence on 16 January 2007. Count 1 related to the other offences.
12 After his arrest, the respondent took part in a videotaped interview with the police. He acknowledged that he had been told by 'Amy' that she was 12 years old. He said that he 'now' realised that his conversations with her had been inappropriate. He also acknowledged that 'Amy' had told him that she did not know how to masturbate and had never done that before. When asked by a police officer what would have happened had 'Amy' turned up earlier that day, the respondent was equivocal in his answers. At one point he said that he probably would have got out of his
(Page 7)
- car but that he did not believe that he would have done anything sexual with her. He repeated this at other times. At yet another point he said that it was a 'tough question' whether he would have done 'something sexual' with the girl. He also said, earlier in the interview, that he wanted to arrange a meeting 'so quickly' because 'Amy' seemed to be 'interested'.
Sentencing remarks
13 In the course of his sentencing remarks, the sentencing judge said that the fact that the respondent was not actually communicating with a child did not provide any mitigation. This was because the respondent had believed that he was communicating with a child. However, he added that the fact that the respondent had not been speaking with a child meant that 'the offences have not been aggravated by causing any harm to a child'.
14 The sentencing judge found that the respondent had been honest and co-operative with the police. He acknowledged that the respondent had pleaded guilty on the fast-track. He said that all of this demonstrated a willingness to facilitate the course of justice and to accept responsibility for the offending behaviour. He accepted that the respondent had demonstrated remorse.
15 Next, the sentencing judge said that, at the time of the offences, the respondent had not fully appreciated the seriousness of his behaviour but that he was satisfied that the respondent had since 'taken stock of [his] life and [of his] conduct'. A report prepared by a clinical psychologist suggested that he had demonstrated considerable insight into his offending and recognised that it had been motivated by loneliness and a desire for intimacy. He went on to say that the respondent had taken some positive steps towards reducing his level of risk, but he had an identified sexual interest in children and his offending behaviour 'could easily have been significantly more serious had [he] in fact been communicating with a child'.
16 The sentencing judge referred to the need for deterrence and to the difficulty in detecting offences of this kind. However, he said that the respondent's age, absence of any criminal record, honesty and determination to rehabilitate himself were important factors. He said that these factors motivated him to impose concurrent sentences of 2 years' imprisonment in respect of each offence and also to suspend the imprisonment in each case. Finally, he said that, while he considered the risk that the respondent would re-offend was 'medium to low', he was satisfied that the respondent should be declared a reportable offender
(Page 8)
- pursuant to s 13 of the Community Protection (Offender Reporting) Act 2004 (WA).
The grant of leave to appeal and the review application
17 There are three grounds of appeal. These essentially come down to the single proposition that the imposition of a suspended sentence was manifestly inadequate having regard for all the circumstances of the case. On 28 August 2007, Wheeler JA granted the appellant leave to appeal. The respondent has applied to this court to set aside that decision upon the basis that he was given no opportunity to oppose the grant of leave (there was no reason why he should have been, the application being one that is made ex parte) and upon the basis that Wheeler JA consequently overlooked the case of R v M, H [2007] SASC 41;(2007) 168 A Crim R 557, which is said to support the proposition that a State or Crown appeal against suspension of a sentence should be approached with great care and that the test applicable to Crown or State appeals should be rigorously applied. The application for review was heard at the same time as the appeal upon the basis that, if it should be unsuccessful, the court would go on to decide the appeal.
Applicable principles
18 In any appeal against sentence an appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen (2000) 202 CLR 321, 324 - 325.
19 In order to determine whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.
20 It is settled that State appeals are in a special category. The relevant rules were set out by Charles JA, with whom Winneke P and Hayne JA agreed, in R v Clarke [1996] 2 VR 520, 522:
1. An appeal by the Crown should be brought only in 'the rare and exceptional case' (Everett [v The Queen (1994) 181 CLR 295] at 299) to establish some point of principle. The reason is that such
- appeals 'represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' (Malvaso [v The Queen(1989) 168 CLR 227] at 234).
- 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths [vThe Queen (1977) 137 CLR 293] at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see [R v] Osenkowski [(1982) 30 SASR 212] at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inaccuracy or it is shown that the sentencing judge fell into material error of law or fact (Allpass [(1993) 72 A Crim R 561] at 562-3).
Allpass is also authority for the following propositions:
4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
21 His Honour went on to say (523) that it is important, in the application of these principles, to bear in mind what King CJ said in R v Osenkowski (1982) 30 SASR 212, 212 - 213 as follows:
[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the
(Page 10)
- exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.
22 More recently, in Dinsdale, the principles pertaining to Crown appeals were discussed by Kirby J at 340 - 341, where, after mentioning that one basis for appellate intervention is replacement of a sentence that is manifestly disproportionate to the circumstances, whether because the punishment imposed is considered to be plainly excessive or manifestly inadequate, his Honour went on to say:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' … such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced … The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences … This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.
23 The court in R v M, H essentially applied these settled principles. However Gray J, with whom Duggan and White JJ concurred, went on to say [18] - [19]:
However, in a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment. In Hicks[R v Hicks (1987) 45 SASR 270], King CJ observed … :
'When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.'
(Page 11)
- Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the 'rare and exceptional' test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale [v The Queen (2000) 202 CLR 32 at [58] (footnote omitted)]:
'As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts'.
Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.
Application of the principles
24 There is no doubt that the legislature regards offences of this kind as serious. That is apparent merely from the existence of the penalty of 10 years' imprisonment that has been provided for. Hansard (Western Australia, Parliamentary Debates, Legislative Council, 9 November 2005, 6961) reveals that s 204B was introduced as a measure against an increasing trend of paedophiles using the internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending. Conduct of that kind is extremely serious, given the vulnerability of children and the long-term serious consequences which inevitably result from sexual offending against them. It is fundamentally important to deter potential offenders.
25 The seriousness with which the offence is viewed by the legislature is underlined by the fact that the maximum penalty of 10 years' imprisonment has been set for the offence of using electronic communication with intent to procure a child, or the person believed to be a child, to engage in sexual activity. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity, which would, of course, be a separate offence. Also, it is plain from the provisions to which I have referred that the legislature regards an offender's conduct as being no less reprehensible if an offender is communicating with a person believed to be a child, although not actually so, than if communicating with a person who is in fact a child. In my respectful opinion, that is not surprising. The first category of behaviour is no less morally reprehensible than the second: R v McGrath [2005]
(Page 12)
- QCA 463; [2006] 2 Qd R 58 [31] (MacKenzie J with whom the other members of the court were in agreement).
26 This court has stressed that there has, in recent years, been a firming up of sentences in cases involving sexual offences against children as the courts have, over the years, gained a better understanding of the long-term effects of that kind of offending upon the children concerned: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; S v The Queen [2004] WASCA 113; Rogers v The Queen [2004] WASCA 147.
27 As to the standards of sentencing customarily observed, so far as I am aware there is no decision of this court in respect of a sentence imposed under s 204B of the Code. However, counsel for the respondent has helpfully provided us with a table of sentences so far imposed by the District Court in respect of offences under that section. This reveals that terms of immediate imprisonment are ordinarily, but not uniformly, imposed. These terms varied considerably in length, no doubt because there is considerable scope for variations in the facts giving rise to offences of this kind.
28 A similar section has attracted the attention of the Court of Appeal in Queensland. There, s 218A of the Criminal Code (Qld) provides for a maximum penalty of 5 years' imprisonment in the case of an offence of this kind involving a child who is, or who is believed to be, under the age of 16 years. In the case of a child who is, or is believed to be, under 12 years, the maximum term is one of 10 years' imprisonment.
29 In R v Kennings [2004] QCA 162 the appellant pleaded guilty to one count of using the internet to procure a person believed by him to be under 16 years of age to engage in a sexual act. He was the first person to be sentenced under the Queensland provision. He was 25 years old and had made contact with a person who was apparently a 13-year-old girl but who was, in fact, a police officer. His conversations with the complainant were sexually explicit, although he did not expressly suggest sexual penetration of her. He sent her a non-sexual photograph of himself. The police officer sent him a provocative picture of a teenage model in response. He arranged to meet with her to pursue the suggestions of sexual conduct that he had made to her. He had no prior convictions and had pleaded guilty to the offence charged. He was cooperative with the authorities. He had voluntarily sought assistance from a psychiatrist, who diagnosed him with a major depressive disorder. He had responded well to treatment. His prognosis was good, with a low likelihood of
(Page 13)
- re-offending. He had been sentenced to 2 1/2 years' imprisonment, suspended after 9 months with an operational period of 4 years. The court allowed his appeal, reduced the term to one of 18 months' imprisonment and suspended that term forthwith for an operational period of 4 years.
30 In R v Campbell [2004] QCA 342 the appellant had pleaded guilty to using the internet to procure a child to engage in a sexual act. The 'child' had in fact been a police officer using the internet to pose as a 13-year-old girl. The offender, who was 22 years old, had no previous convictions. He used sexually explicit language and sent her two photographs of his erect penis. He encouraged her to masturbate. He did not arrange a meeting with the girl, although he wanted to meet with her. He was sentenced to 18 months' imprisonment, suspended after 3 months with an operational period of 4 years. The court found that the sentence was not manifestly excessive.
31 In R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; (2005) 153 A Crim R 104 the court dealt with a 50-year-old man who had used an internet chat room to expose a person he believed to have been under the age of 16 to an indecent matter. He also procured her to engage in a sexual act. Both offences involved a police officer pretending to be a 13-year-old schoolgirl. The first offence involved the sending of a picture to the child of himself with an erect penis. The second involved sexually explicit conversations in the course of which the offender asked his supposed victim if she would like to meet him somewhere where he could kiss her and rub her breasts and genitalia. The complainant agreed to meet him at a McDonalds restaurant, where the offender was arrested by police.
32 The offender, who had been active in the local community, pleaded guilty at an early stage and co-operated with the police. He had attracted considerable notoriety on local television and in the local press. He had previously been a person of exemplary character. He had undergone counselling from a psychologist and had developed insight into his offending behaviour. He was regarded as being unlikely to re-offend. He was ordered to perform 240 hours of community service and was sentenced to a term of 18 months' imprisonment wholly suspended for a period of 2 years.
33 The court, on the appeal, regarded the sentence as lenient but was not prepared to interfere with it. However McMurdo P said (108 - 109):
It is a difficult decision to determine whether the combined mitigating factors here, namely the early plea of guilty and co-operation with the
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- authorities, Burdon's prior good history and character, his efforts at rehabilitation and his low risk of reoffending, were sufficient to allow the imposition of an effective non custodial sentence. Burdon has now completed his 240 hours community service in an exemplary manner. Two hundred and forty hours community service was the maximum period which could have been ordered. He has now had this matter hanging over him with resulting public notoriety since his arrest on 22 April 2004, a period of over a year. These additional factors tip the scales in favour of Burdon and persuade me that the Attorney's appeal should not be allowed.
Nevertheless, people who are considering using the internet like Burdon to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving a term of actual imprisonment, even where indecent physical contact does not and could not eventuate.
- Each of Muir and Wilson JJ agreed with McMurdo P.
34 In McGrath the appellant had pleaded guilty to two offences of using the internet with intent to procure a child under 16 to engage in a sexual act and three offences of using the internet with intent to expose a child under 16 to indecent matter. The offences involved two girls, both apparently aged 13. In reality they were police officers.
35 The applicant was 19 years old at the time of the offences. He had no previous convictions. His contact with the first complainant had been relatively sporadic. However, he had put blatantly sexual propositions to her and had given her information about how to perform various sexual acts. No firm arrangement was ever made by him to meet her. The appellant had a number of sexually explicit conversations with the second complainant. There was discussion of a meeting, but it seemed that the appellant was disinclined to meet her. The court concluded that it was unlikely that the appellant would have met either girl. Psychological and psychiatric reports suggested that the appellant was unlikely to re-offend, that he was remorseful and that he did not meet the diagnostic criteria for paedophilia. He was sentenced, on each offence, to a term of 4 months' imprisonment. The Court of Appeal suspended the sentences of imprisonment that had been imposed in respect of two of the counts. The appellant was placed on probation for a period of 12 months, with a special condition that he submit to psychiatric or psychological treatment as might be directed by a community corrections officer, in respect of the other three counts.
36 In R v Hays [2006] QCA 20; (2006) 160 A Crim R 45, the offender was sentenced to a total sentence of 18 months' imprisonment, to be
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- suspended after 3 months for an operational period of 2 years, for three cyber predator counts in relation to a person he believed to be a 13-year-old girl (but who was in fact a police officer). The offender had engaged in sexually explicit discussion with the girl and had given her detailed, lewd and graphic instructions on how to masturbate herself. On two occasions, he sent her a real time moving image of himself masturbating. The girl presented as sexually uninformed, sometimes nervous and reluctant. He also asked the girl if he could talk on-line with any of her friends and later made similar communications with a person who he believed was a 13-year-old friend of hers.
37 The offender was 29 years old at the time of offending. He had no prior criminal convictions. He had a good work history and had had substantial involvement in community activities. He pleaded guilty to the offences. It was accepted that he was unlikely to re-offend.
38 On appeal, the court found that the sentence imposed was not manifestly excessive, despite the fact that the offender had not sought a meeting with the girl. De Jersey CJ, with whom McPherson JA agreed said [13]:
There has for some years been substantial publicity about the extent of children's use of Internet chat rooms, and the dangers involved. Yet adults continue to prey sexually upon vulnerable children in this way. No doubt very little of this would come to light, or be forestalled, but for the police targeting the activity via covert operatives. Accordingly, in a case like this, notwithstanding there being no actual victim, general deterrence assumes considerable significance in the sentencing process, extending where appropriate to ordering actual incarceration.
- He also said [22]:
A meeting for the purpose of sexual exploitation carries particular risk to the immature victim. But so does indecent communication by an offender of mature years directed at an immature and therefore vulnerable child over the Internet. The graphic, salacious nature of what this applicant said, and did, if directed to a truly vulnerable 13 year old girl, would have carried serious potential to corrupt.
40 We were also referred to R (Cth) v Poynder [2007] NSWCCA 157, a decision of the Court of Criminal Appeal in New South Wales which dealt
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- with a similar offence under s 474.26(1) of the Criminal Code Act 1995 (Cth). That section provides that an adult person (the sender) commits an offence if the sender uses a carriage service (which includes a telephone service) to transmit a communication to another person (the recipient) who is, or is believed by the sender to be, under 16 years of age with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender. However, the facts of that case were very different to those in the present case and it consequently seems to me to be of little assistance in the present context.
41 In the present case, unlike the Queensland cases to which I have referred, the maximum penalty capable of being imposed was, as I have said, one of 10 years' imprisonment in respect of each count. Moreover, the offences were serious. The respondent was 12 years older than the complainant. He admitted, during the course of his interview with the police, that he had an interest of a sexual nature in pre-pubescent females. His interest was borne out by the fact that he was found to be in possession of various images of pre-pubescent girls in sexual poses, including one of a 4-year-old girl. Also, the respondent was persistent in his questioning of the complainant in matters of an overtly sexual nature, notwithstanding her apparent naiveté. He encouraged her to masturbate, and told her how to do this, on two separate occasions. He offered to show his penis to the complainant. He gave her instructions on sexual intercourse. He arranged to meet with the complainant in order to have sexual intercourse with her. While he was, as I have said, uncertain, during the videotaped interview, what would have happened had he been met by a 12-year-old girl, his comments, taken together with the content of his communications with 'Amy', suggest that, if such a girl had been willing, there is at least some prospect that he would have had sexual intercourse with her. While the respondent was, of course, only to be sentenced in respect of the offences charged, the prospect that this might have happened graphically reveals the need for deterrent sentences in respect of this kind of offending. That is especially so given that such offences are difficult to detect.
42 The personal circumstances and antecedents of the respondent are favourable. However, it has often been said that, in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: see, for example, VIM [320] - [321] and the cases there cited.
43 It seems to me that, even taking into account the matters favourable to the respondent, the sentence imposed was so manifestly inadequate as
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- to demand the intervention of this court, notwithstanding the constraints inherent in a State appeal. This was a very serious example of this kind of offending, for the reasons that I have mentioned. In those circumstances there was, in my respectful opinion, no basis for the imposition of a sentence of suspended imprisonment, whether conditional or otherwise. Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography (as to which see Hutchins v The State of Western Australia [2006] WASCA 258), there is a paramount public interest in protecting children from sexual abuse.
44 The conclusion that there was, in this case, no basis for the imposition of any form of suspended imprisonment has the result that the respondent was rightly given leave to appeal, that the application for review of the decision of Wheeler JA should be dismissed, that the appeal should be allowed and that the decision of the trial judge should be set aside. It is consequently necessary to re-sentence the appellant.
45 We have been provided with a psychological report prepared in respect of the respondent by a clinical psychologist. Because the report relates only to an assessment of the respondent since he was sentenced, it is admissible only for the purposes of re-sentencing. The report explains the underlying basis for the respondent's offending behaviour essentially by reference to naiveté, social isolation, loneliness and a fear of rejection. His breach of sexual boundaries with the person that he believed to have been a 12-year-old girl is described as being more a reflection of his immaturity and looseness of boundaries in relation to sexual matters than of any paedophilic tendencies (although, as I have mentioned, the respondent admitted to possession of child pornography). The report records that the respondent has made significant progress and that there is a very low risk of him re-offending. The psychologist suggests that it would be unfortunate if the respondent's efforts to rehabilitate himself were disrupted at this stage by him being imprisoned.
46 Even accepting everything said in the report, the fact remains that the seriousness of these offences substantially outweighs the appellant's personal circumstances. However, counsel for the respondent urged upon
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- us the proposition that, if we were to conclude that the sentencing judge had erred in not imposing a sentence of immediate imprisonment, we should not now impose such a sentence given that five months has passed since the respondent was sentenced: as to which see The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [31] - [36] and the authorities there discussed. She pointed to the fact that the respondent has, during that time, operated successfully in the community, satisfied all of the conditions imposed upon him and been subject to the onerous reporting obligations imposed by the Community Protection (Offender Reporting) Act. He has also made progress in his treatment by his psychologist.
47 There is substance to these submissions, especially when regard is had to the constraints in a State appeal against sentence. However, it seems to me that, even allowing for these considerations, this is a case in which it is necessary to impose a sentence of imprisonment to be served immediately. Anything less would significantly undervalue the seriousness of the appellant's offending behaviour and the need for a deterrent sentence. However, in the light of the considerations to which I have referred, and taking into account that this is a State appeal, it is appropriate to impose a lesser sentence than that which would otherwise have been merited for offending of this kind.
48 I would impose, in lieu of the sentence imposed by the sentencing judge, a term of 18 months imprisonment on each count, to be served immediately. I would order that each of those terms be served concurrently with each other. That sentence takes account of the matters in mitigation, including the plea of guilty, as well as the other considerations to which I have referred. It also takes account of the mandatory reduction required by sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
Conclusion
49 It follows that the application for review of the decision of Wheeler JA should be dismissed, the appeal should be allowed, the sentence imposed by the sentencing judge should be set aside and there should, in lieu, be a sentence of 18 months' imprisonment on each count, to be served immediately and concurrently with each other. The respondent is declared to be eligible for parole. He will consequently be eligible for release on parole after serving 9 months' imprisonment.
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50 McLURE JA: I agree with Steytler P.
51 MILLER JA: I agree with Steytler P.
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