The State of Western Australia v Johnson - [2009] WASCA 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- JOHNSON [2009] WASCA 224

CORAM: OWEN JA
WHEELER JA
BUSS JA

HEARD: 7 DECEMBER 2009

DELIVERED : 7 DECEMBER 2009

PUBLISHED : 15 DECEMBER 2009

FILE NO/S: CACR 131 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DANIEL WILLIAM JOHNSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
File No  :IND 396 of 2009

Catchwords:

Criminal law - State appeal against sentence - Cyber predator - Using electronic communications with intent to procure a person believed to be under the age of 16 years to engage in sexual activity and to expose such a person to indecent matter - Legislative object or purpose in enacting s 204B of the Criminal Code (WA) - Whether immediate imprisonment the only appropriate sentencing option - Whether a conditional suspended term of imprisonment was manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)
Criminal Code (WA), s 204B
Sentencing Act 1995 (WA), s 6(2), s 6(4), s 8(1), s 39(2), s 39(3), s 76(1), s 76(2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J A Scholz
Respondent: Mr S Vandongen

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: MacArthur Law Group Pty Ltd

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

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
R v Liddington (1997) 18 WAR 394
Skipworth v The State of Western Australia [2008] WASCA 64
Speering v The State of Western Australia [2008] WASCA 266
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Bennett [2009] WASCA 93
The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
The State of Western Australia v Cunningham [2008] WASCA 240
The State of Western Australia v Freemantle [2008] WASCA 98
The State of Western Australia v Porter [2008] WASCA 154
Vagh v The State of Western Australia [2007] WASCA 17
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

OWEN JA: At the conclusion of the hearing on 7 December 2009 the court announced that the appeal would be dismissed and that reasons would be published in due course. I have read the reasons to be published by Buss JA. They reflect the reasons why I joined in the orders made on 7 December 2009 and I agree with them. I wish only to make a few comments by way of summary.
The respondent was convicted after trial of the 10 counts on the indictment. He was sentenced to a total term of imprisonment for 2 years suspended for 2 years subject to conditions. The State does not challenge any of the individual sentences and nor does it contend that the aggregate terms are manifestly inadequate. Rather, the State pleads that the respondent should have been sentenced to terms of immediate imprisonment and that the decision to suspend the terms has resulted in a manifest inadequacy.
The sentencing remarks are, if I may say so, thorough and carefully considered. Her Honour's reasoning process has been fully exposed and, subject to the contentions contained in grounds 2 to 5 (to which I will turn in a moment), it cannot be said that she overlooked a relevant matter or took into account an irrelevant consideration.
The real import of the State's submission is that the option of a suspended sentence was never open to the sentencing judge because of the impact of four previous decisions of this court: 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 vPorter [2008] WASCA 154; and Speering v The State of Western Australia [2008] WASCA 266. The State contends that:
(a)in each of those cases a sentence of immediate imprisonment was imposed; and
(b)there are so many points of similarity and so few points of difference between those cases on the one hand and this case on the other that the disposition in this case represents an impermissible departure from the principle of consistency in sentencing.
Buss JA has analysed each of those cases in close detail and I will not repeat what his Honour has said in that respect. But it is important to note that there is nothing in those cases or elsewhere that is a ukase to the effect that a person convicted of offences against s 204B of the Criminal Code must inevitably be sentenced to a term of imprisonment to take effect immediately. The cases do say that it 'might ordinarily be anticipated' that immediate imprisonment will be the appropriate disposition for offending of this type. But a sentencing officer remains subject to the normal obligation to consider all options and not to impose a term of immediate imprisonment unless it is inappropriate to use another sentencing option. This is the effect of s 39(2) of the Sentencing Act 1995 (WA).
In this case, the sentencing judge was aware of the four cases set out above. Her Honour commented that adults who use the Internet to make contact with children to procure them to engage in sexual activity 'can ordinarily expect to receive a term of immediate imprisonment'. She announced a preliminary conclusion that 'because of the seriousness of these offences, a term of imprisonment would usually be imposed'. Her Honour went on to compare the circumstances of this case with those in the four decisions set out above. She identified some differences that were not in the respondent's favour. She also listed other aggravating factors that were present in some of the other cases but that did not apply to the respondent. Again, these factors are fully set out in Buss JA's reasons and I will not repeat them.
The offender in each of the four cases I have mentioned had pleaded guilty and was entitled to some leniency on that account. While the respondent's decision to go to trial was not an aggravating factor it removed a mitigating factor that would otherwise have been present. It was also put against the respondent that he had not shown remorse and had continued to deny the offences. But the sentencing judge had presided over the trial and had seen the respondent give evidence. She would have been in a privileged position to assess the respondent's explanation for the stance he had taken and in that respect she had the assistance of the psychologist's report.
Factors in favour of the respondent included that he had not attempted to make physical contact with the child persona (unlike, for example, Collier) and nor had he sent sexually explicit material by electronic means (unlike the offenders in each of Freemantle, Porter and Speering). When considered against the legislative intent apparent in the Criminal Code Amendment (Cyber Predators) Act 2006 (WA) and the mischief against which the provisions are directed, it would have been open to the sentencing judge to regard those factors as significant.
Her Honour then identified six matters that tipped the balance in favour of a suspended sentence for the respondent, 'but only just'. The phrase 'but only just' mirrors what she had said earlier that the imposition of a suspended sentence was a 'lineball decision'. Other matters that the sentencing judge took into account were that:
(a)no specific programmes are available in Western Australia to address online sexual offending and the respondent was unlikely to meet the criteria for mainstream sex offender programmes; and
(b)with low risk offenders there is a danger that exposure to more deviant offenders may increase the risk.
The statement about the danger of exposing a person like the respondent to other offenders was not an expression of a general impression held by the sentencing judge. It came from the psychologist's report. Her Honour assessed the respondent as being at a low risk of re‑offending (another conclusion supported by the psychologist) and noted that 'imprisonment carries a very high risk of further corruption and exposure to deviancy'. Her Honour was not bound to accept what the author of the report said in those respects but she was entitled to have regard to those considerations and to give them such weight as she thought appropriate.
In grounds 2 to 5 the State contends that the sentencing judge erred in law (or in law and fact) in regarding six specific matters as justifying suspension of the terms. Those six matters were: the difference in maximum penalties depending on whether the contact is under 13 years of age or between 13 and 16; prior good character; the absence of other types of offending; the interaction with only one child persona; cooperation with the police; and voluntary cessation of contact.
If the State's position is that these were irrelevant considerations and should not have been taken into account at all, the challenge is misconceived. The sentencing judge was obliged to take into account the available maximum penalty and was entitled to have regard to the fact that, had the appellant been charged with contacting a child under 13 years of age, the offence would have been more serious. All of the other matters were relevant and the sentencing judge was entitled to have regard to them and to give them such weight as she thought appropriate. To the extent that the challenge is based on errors of fact there was material from which each of the relevant findings could be made. Thereafter, it became a matter of the weight to be ascribed to each matter.
I think the import of the State's position is that none of those six matters, alone or in combination, would have justified suspension of the terms. If each of those factors is looked at by itself the State's contention is probably correct. But her Honour did not rely on any one consideration to the exclusion of the others. It is apparent from the sentencing remarks that she considered them in combination. Where a number of matters are taken together they can have a compounding effect so that the whole is greater than the sum of its parts.
Sentencing is a most difficult task. Save in cases where the legislature in clear and unambiguous language mandates to the contrary, care needs to be taken not to read into the statute or into previous decisions the prescription of immutable rules and regulations. The sentencing discretion does not fall to be exercised in a vacuum. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [15] (McHugh J). There is no single correct sentence: Pearce v The Queen (1998) 194 CLR 610 [46].
Sentences are imposed for a specific offence (or offences) committed by an individual offender. But the sentencing process operates in a general policy framework to which both the common law and statute have contributed. Within the confines of the policy framework and the dictates of the common law and statute, sentencing is essentially a matter of judgment to be exercised according to the facts of an individual case. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26].
In this case the sentencing judge embarked on a difficult balancing exercise in which she took into account relevant matters. It has not been demonstrated that she had regard to irrelevant matters. Nor are there other discernable errors in the approach that she took. Her Honour reached a conclusion that she described as 'lineball'. Views will often differ as to the weight to be given to individual factors and to a conclusion ultimately reached as a result of the combination and assessment of myriad considerations. The question is not whether the appellate court might have reached a different conclusion but whether the result arrived at by the sentencing judge is so inadequate as to demonstrate that the discretion has entirely miscarried.
Applying this approach I am unable to say that the sentencing judge's discretion miscarried. Her Honour:

(a)considered the innate seriousness of offences of this kind and the circumstances of these offences;
(b)compared the respondent's offending conduct with that of the offenders in the four cases I have mentioned;
(c)had regard to the public interest in general deterrence and in the rehabilitation of the offender;
(d)took into account the respondent's personal circumstances, risk of reoffending and the need for personal deterrence; and
(e)identified the reasons why she considered that the circumstances of this case could justify the imposition of suspended terms.

All of these matters went into the matrix in which the balancing exercise fell to be conducted. Her Honour was persuaded, but only just, that the balance fell in favour of suspending the terms of imprisonment that would otherwise have been ordered to be served immediately and that it was appropriate to do so subject to conditions. The conditions were designed to reduce further the respondent's risk of re-offending and to aid in his rehabilitation. In my view the decision that the sentencing judge reached was open on the facts of this case. It is in accord with sentencing principles generally and it does not reflect an impermissible departure from the consistency principle.
It was for these reasons that I joined in the orders dismissing the appeal.
WHEELER JA: I agree with Owen and Buss JJA.
BUSS JA: On 24 July 2009, the respondent was convicted, after a trial in the District Court before Davis DCJ and a jury, of:
(a)three counts (being counts 1, 3 and 7) of using an electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity, contrary to s 204B(2)(b)(i) of the Criminal Code (WA); and
(b)seven counts (being counts 2, 4, 5, 6, 8, 9 and 10) of using an electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter, contrary to s 204B(2)(b)(ii) of the Code.

On 1 September 2009, the trial judge sentenced the respondent to a net effective head sentence of 2 years' imprisonment, but her Honour ordered that the term be suspended for 2 years, subject to conditions.
The individual sentences were structured as follows:
(a)counts 1, 3 and 7: 12 months' imprisonment each;
(b)counts 2 and 9: 8 months' imprisonment each; and
(c)counts 4, 5, 6, 8 and 10: 6 months' imprisonment each.
Count 3 was ordered to be served cumulatively on count 1. All other sentences were made concurrent with count 1.
The State has appealed against the sentencing decision. It does not take issue with the individual sentences or with the manner of accumulation. Rather, the State contends that the suspension of the net effective head sentence resulted in a manifestly inadequate sentence.
At the conclusion of the hearing on 7 December 2009, the court dismissed the appeal. We said reasons for decision would be published later. These are my reasons.

The grant of leave to appeal

On 17 September 2009, the State filed its appeal notice.
On 5 October 2009, Wheeler JA granted leave to appeal. Her Honour also granted the State's application for an urgent appeal order.

Section 41(4)(b) of the Criminal Appeals Act 2004 (WA)

Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) applies to the State's appeal. The introduction of this provision has abrogated the common law principles that were once applicable to State or Crown appeals against sentence. See The State of Western Australia v Atherton [2009] WASCA 148 [142] ‑ [160] (Buss JA, Miller JA agreeing). See also The State of Western Australia v Cunningham [2008] WASCA 240 [21] ‑ [22] (Miller JA, Steytler P & Buss JA agreeing); The State of Western Australia v Bennett [2009] WASCA 93 [67] ‑ [68] (Miller JA, Owen & Buss JJA agreeing).

Section 204B of the Criminal Code

Section 204B of the Code was inserted by s 4 of the Criminal Code Amendment (Cyber Predators) Act 2006 (WA).
Section 204B provides:
(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;
electronic communication has the meaning given to that term in section 5 of the Electronic Transactions Act 2003;
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;
(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).

The respondent defended counts 1, 3 and 7 (which alleged contraventions of s 204B(2)(b)(i)) and counts 2, 4, 5, 6, 8, 9 and 10 (which alleged contraventions of s 204B(2)(b)(ii)) on the basis that he did not believe the person concerned (who was a fictitious person represented to him by a police officer as a real person) was under the age of 16 years. The jury, by their verdicts, were satisfied beyond reasonable doubt that the respondent believed that the fictitious person was real and under the age of 16 years.
The Attorney General, the Hon JA McGinty, said, in the course of his second reading speech in relation to the Bill which upon enactment became the Criminal Code Amendment (Cyber Predators) Act 2006 (WA):
New section 204B in the Criminal Code will provide a means to target those who seek to exploit children through contact on the Internet and other types of electronic communication. Predators will frequently go to online Internet chat sites, often posing as children, and attempt to engage a child victim in a conversation, and to groom the child for planned sexual exploitation. After gaining the trust of a child, the predator may attempt to arrange an actual meeting with the child for the purpose of engaging in sexual acts with the child. Alternatively, the predator may sexually exploit a child by having the child digitally photograph herself or himself and send these images via email or a mobile phone. The predator may convince the child to engage in indecent acts and describe these acts via text communication, or may move the communication off‑line and conduct it via digital phone conversations and SMS ‑ short message service ‑ text.
… The offence will also occur in cases in which the offender has supplied a child with indecent material; a common method used in grooming to lower a child's inhibitions to the abuse.
…
A crucial aspect of this legislation is that it provides police with the ability to stop a child from being abused before it happens. Police will have the capacity to go online and conduct operations against offenders by posing as children. Offenders need only believe that they are communicating with a child and, unless the offenders can show otherwise, they will be held to have a belief that they are communicating with a child of the particular age that is communicated to them. The offender commits the offence even when the child victim turns out to be a police officer.
This legislation will provide a deterrent to those seeking to prey on children. If predators know that the children they intend to prey upon may be police officers, it is far more likely that children will be left alone.
(See Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005, 6725, 6726, 6732.)
Four points as to the purpose or object underlying s 204B may be discerned from this passage in the Attorney General's speech. 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.
The offences created by s 204B may be compared to and contrasted with s 320(3) of the Code which provides that a person who procures, incites, or encourages a child under the age of 13 years to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 20 years. A similar offence is created by s 321(3) in relation to a child over the age of 13 years and under the age of 16 years. See also s 320(5) and s 320(6) and s 321(5) and s 321(6). The provisions of s 320 and s 321 are concerned with, relevantly, actual procurement (or attempts to procure: see s 552 read with s 4 of the Code) of real children.
The offences created by s 204B may also be compared to and contrasted with s 204A of the Code. By s 204A(2), a person who, with intent to commit a crime, shows offensive material to a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 5 years. 'Offensive material', as defined in s 204A(1), is more egregious in nature than 'indecent matter', as defined in s 204B(1). The provisions of s 204A are concerned with, relevantly, showing offensive material to real children.

The facts and circumstances of the offending

The offences related to communications on the internet between the respondent and a child persona, known as Jasmine, created by a police officer, Senior Constable Amanda Ball, between 16 May 2007 and 24 March 2008. The child persona, Jasmine, was aged 13. She had her 14th birthday in the week after the first communication. The offences occurred while the respondent was working from home on his computer.
Counts 1, 3 and 7 (which involved using an electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity) related to the respondent's online discussions with Jasmine on three occasions. The counts occurred on 16 May 2007, 26 September 2007 and 6 December 2007 respectively. On each occasion, the respondent gave Jasmine detailed instructions on how to masturbate, and he encouraged her to engage in this activity.
As I have mentioned, the other counts involved the respondent using an electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter.
As to count 2, on 17 May 2007 the respondent discussed with Jasmine urinating as part of a sexual act. In particular, the respondent discussed with Jasmine a 'golden shower', and said that some girls liked it.
As to count 4, on 26 November 2007 the respondent informed Jasmine that he wanted to masturbate her. He said he wanted her to sit on his lap in a skirt so that he could have 'easy access'. He also said he loved making her wet and suggested she would like to make him erect.
As to count 5, on 28 November 2007 the respondent told Jasmine that he could teach her to perform fellatio on him. He then asked whether she wanted him to penetrate her vagina with his penis.
As to count 6, on 5 December 2007 the respondent suggested to Jasmine that she had thought about him being inside her. He described some pornography he had viewed recently. He said he was aroused and asked whether pornography would 'turn her on'.
As to count 8, on 10 December 2007 the respondent informed Jasmine that he had thought about her and woken with an erection. He asked whether she had ever had a sex dream, and said he dreamed of having sex with her.
As to count 9, on 23 January 2008 the respondent asked Jasmine whether 'she tasted sweet'. He discussed cunnilingus with her and asked whether she had ever tasted her fingers after masturbating.
As to count 10, on 24 March 2008 the respondent suggested that Jasmine would like it if he 'licked her a bit lower than her tummy'. He asked how often she 'touched herself', and whether she liked it.

The trial judge's sentencing remarks

The trial judge recounted, in her sentencing remarks, the material facts relating to the offences.
Her Honour noted that counts 9 and 10 occurred after the respondent had deleted Jasmine from the 'contacts list' on his computer. Senior Constable Ball said in evidence that from January 2008 she initiated or re-established contact with the respondent. This was done so the police could confirm the respondent's identity before carrying out a search of his home and charging him.
On 2 July 2008, the police searched the respondent's home and interviewed him. He admitted the online communications with Jasmine, but denied that he believed the person with whom he was communicating was a child.
During the interview with the police and in sworn evidence at the trial, the respondent said he did not believe Jasmine was a child. He was bored and 'mucking around'. He thought the person with whom he was communicating was another man. According to the respondent, he would not have engaged in the relevant communications if he had thought the other person was a child. The trial judge said, rightly, that the jury, by their verdicts, rejected the respondent's explanation and version of events.
The respondent maintained, in interviews with the authors of a pre‑sentence report and a psychological report, prepared for the purposes of sentencing, that he engaged in the communications to relieve boredom. He did not do so for sexual reasons. He was not sexually aroused and he did not masturbate. The trial judge found, however, that the respondent did have an interest in the communications for sexual purposes. But her Honour accepted that he did not masturbate while committing the offences (sentencing ts 39).
The trial judge examined the respondent's personal circumstances. He was born on 16 September 1980 and was aged 26 at the time of the offending and 28 when sentenced. Although his parents were divorced, the respondent appears to have had a stable background and happy childhood. Her Honour said that the respondent was of good character and had no issues with substance abuse. He had received a good education and ran his own business as a survey draftsman. At the time of sentencing, he was engaged to be married to a young woman whom he had met in February 2008. The respondent had no prior convictions. Her Honour accepted, on the basis of the absence of a prior criminal record and the contents of numerous written references as to his character, that the offences in question were an 'uncharacteristic aberration' (sentencing ts 40).
The trial judge noted a number of matters set out in the psychological report prepared by Ms Mary‑Anne Martin:
(a)the respondent is not generally impulsive or irresponsible;
(b)the discussion about a 'golden shower' may be linked to a specific problem identified in the report (in particular, the respondent may have developed a paraphilia relating to urination which is not necessarily indicative of a sexual attraction to children);
(c)the respondent does not have a distorted attitude which is supportive of offending against children;
(d)the offences in question were committed intermittently over a period of 10 months and this is probably not consistent with a person who is becoming more compulsive about a deviant interest;
(e)there was no evidence of attempts to engage inappropriately with other children;
(f)the respondent ceased initiating communications with Jasmine in January 2008 (before the commission of counts 9 and 10), and later 'blocked' Jasmine from his contacts list;
(g)psychometric testing revealed feelings of inadequacy and insecurities (in particular, the respondent is self critical and expects ridicule and derision); and
(h)the social and emotional factors which induced the respondent to participate in communications online as a method of social networking arose from social isolation and emotional issues that were not present when the report was prepared.
Her Honour was concerned that Ms Martin did not have a copy of the whole of the transcript of the communications between the respondent and Jasmine. She had only a statement of material facts. Her Honour therefore decided that she should not place much weight on the respondent's assertions, as recorded in the psychological report, that he did not have a sexual interest in children or on Ms Martin's opinion that he did not have distorted attitudes supportive of offending against children.
The trial judge found, nevertheless, that by the end of 2007 or the beginning of 2008, the respondent had 'come to his senses' and had ceased initiating contact with Jasmine. There was no escalation in the frequency or content of the online communications.
Ms Martin assessed the risk of the respondent re‑offending as low. That assessment was based in part on the psychometric testing she had administered. The trial judge said the testing appeared to be valid. In any event, her Honour's own view, based on, amongst other things, her observations of the respondent in the record of interview and in giving evidence at the trial, was that he was at a low risk of re‑offending. Also, her Honour was willing to accept Ms Martin's assessment that the respondent's denial of the offences did not increase his risk of re‑offending. Her Honour found that this denial may have been because of his embarrassment in front of his family and friends.
The trial judge stated what, in her view, were the relevant sentencing considerations. The dominant considerations were punishment, personal deterrence, general deterrence and the protection of vulnerable children. She also mentioned assisting the respondent, if possible, in his rehabilitation.
Her Honour noted the absence of any expression of remorse by the respondent. He had proceeded to trial and had minimised the significance of the offences. The seriousness of the respondent's offending was highlighted by the significant age difference between him and Jasmine and the degree of perversion illustrated in the communications.
The trial judge then referred to a number of factors which, in her view, lessened the seriousness of the respondent's conduct compared with other cases where immediate terms of imprisonment had been imposed on offenders for similar offences. In particular:
(a)The respondent had been convicted of offences against s 204B(2), which carry a maximum penalty of 5 years' imprisonment and not offences against s 204B(3), which carry a maximum penalty of 10 years' imprisonment.
(b)The respondent's antecedents suggested that his conduct was out of character and there was a low risk of re‑offending.
(c)There was no offensive or pornographic material transmitted electronically.
(d)There was no child pornography found on the respondent's computer or in his home.
(e)The respondent did not masturbate while the communications occurred.
(f)The respondent did not communicate under an assumed identity; in particular, he did not represent himself to be younger than he really was when communicating with Jasmine.
(g)The respondent expressed an interest in speaking to Jasmine on the telephone, but he did not pursue her to the point of attempted contact by arranging or attempting to arrange a meeting or a telephone call.
(h)The respondent communicated with only one child persona.
Her Honour also emphasised, as mitigating features, the respondent's personal antecedents, particulars of which I have set out at [52] above.
The trial judge then imposed the sentences of imprisonment and made the orders for concurrency and accumulation that I have recounted.
Finally, her Honour gave consideration to whether the terms of imprisonment should be suspended. She noted that immediate imprisonment is a sentence of last resort and decided that a suspension, subject to conditions, was appropriate in the respondent's case. Her Honour explained:
The following factors are those which I consider tipped the balance in favour of a suspended sentence for you, but only just.
The first is your good character and antecedents. The second is that you voluntarily came to your senses and ceased contact with the persona Jasmine, as I've previously described. Thirdly, your circumstances have changed, as have the factors relating to your social isolation and emotional issues, which are identified in the psychological report.
Fourthly, I have assessed you at a low risk of re-offending. Fifthly, I've had regard to your good employment history. And finally, and very importantly, I consider that a very important factor is that you are in a stable relationship and, as we have seen from the references, you have wide support from family members and friends.
Now, while general deterrence in this type of case is a factor, and a very important factor, I need to also have regard to your rehabilitation and whether you are likely to benefit from the suspension of a term of imprisonment, which will ultimately also benefit the community. It is a relevant [consideration] that Ms Martin in her psychological report has advised that you would not meet the criteria for a mainstream sex offender program, and she's also stated that there can be a risk with low risk offenders that exposure to more deviant offenders can increase their risk.
I consider that there would be little benefit either to you or the community generally if I were to send you to prison; not only because of your favourable antecedents and your low risk of offending but also because imprisonment carries a very high risk of further corruption and exposure to deviancy. I consider the community would be better served if your sentence of imprisonment were suspended, subject to strict conditions, which I will set out in a moment.
The imposition of the term of imprisonment to be suspended on conditions will still deter potential offenders, as any re‑offending of any nature during the period of suspension will make you liable to serve the sentence of imprisonment.
So the sentence I impose is therefore a period of imprisonment of two years suspended for two years, subject to conditions (sentencing ts 46 ‑ 47).

The grounds of appeal

The grounds of appeal, without the supporting particulars in relation to ground 1, read:
1.The learned sentencing judge erred in law by suspending the total term of 2 years' imprisonment, which resulted in a sentence that was so inadequate as to manifest error having regard to the standards of sentencing customarily observed for offences of this kind.
2.The learned sentencing judge erred in law in finding that the difference in maxima between the penalties for offences contrary to s 204B(2) and s 204B(3) of the Criminal Code was a factor that justified the suspension of the term of imprisonment.
3.The learned sentencing judge erred in law in concluding that the prior good character of the respondent, in the context of offences contrary to s 204B of the Criminal Code, was a factor that justified the suspension of the term of imprisonment.
4.The learned sentencing judge erred in law in concluding that the absence of other types of offending was a factor relevant to the suspension of the term of imprisonment.
5.The learned sentencing judge erred in law and in fact in concluding that:
(a)the fact that the respondent only interacted with a single child persona;
(b)the purported co-operation of the respondent with the police; and
(c)the respondent's voluntary cessation of conduct with the online persona
were all factors that justified the suspension of the term of imprisonment in the circumstances of this case.

General principles of appellate review

An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive, manifestly inadequate or infringes the totality principle. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

The nature of manifest inadequacy

A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].
And see Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] ‑ [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).

The suspension of a term of imprisonment

By s 6(4) of the Sentencing Act 1995 (WA):
A court must not impose a sentence of imprisonment on an offender unless it decides that ‑
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of Pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act. That is, a court is not permitted to impose a term of imprisonment to be served immediately unless that is the only appropriate sentencing option. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA), [58] (Buss JA).
Section 76(1) of the Sentencing Act provides:
A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Parliament expressly contemplated that a suspended term of imprisonment may be imposed in a case where a serious offence has been committed. This is apparent from the terms of s 76(1), which permit suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years.
In Dinsdale, Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:
Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender ‑ whether aggravating or mitigating ‑ which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J) [85].
The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J in R v Liddington (1997) 18 WAR 394. His Honour said:
Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243)), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62)); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police (1994) 61 SASR 589 at 592; cf R v Percy (at 72 ‑ 73)); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220)); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J (at 234)).
That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case (406).

Ground 1 of the appeal: the State's submissions

Counsel for the State referred to four decisions of this court with respect to sentencing for offences contrary to s 204B of the Code: 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 Porter [2008] WASCA 154; Speering v The State of Western Australia [2008] WASCA 266. Counsel submitted that these decisions are authority for the proposition that adults who engage in offending against s 204B can ordinarily expect to receive a term of immediate imprisonment.
According to counsel for the State, the trial judge's decision in the present case to suspend the term of imprisonment failed adequately to reflect the need for personal and general deterrence. Also, the decision to suspend failed adequately to punish the respondent for his offending.
Counsel emphasised the age disparity between the child persona (between 13 ‑ 14 years of age during the 10‑month period in question) and the respondent (26 years at the time). He also submitted that the respondent had displayed no remorse for his conduct and had continued to deny the offending to the psychologist, Ms Martin.

Grounds 2 ‑ 5 of the appeal: the State's submissions

Counsel for the State referred to the basis upon which the trial judge distinguished other cases where sentences of immediate imprisonment have been imposed. I have enumerated the relevant factors at [59] above. It was submitted that none of these factors, either alone or in combination, distinguished the present case from the ordinary case that will attract a term of immediate imprisonment.
As to the fact that the offences in question were contrary to s 204B(2), which attracts a maximum penalty of only 5 years' imprisonment, as distinct from offences contrary to s 204B(3), which attracts a maximum penalty of 10 years' imprisonment, counsel submitted that this difference does not detract from the general principle that those who commit these offences may expect to receive sentences of immediate imprisonment.
As to the offending being out of character and the respondent having a low risk of re‑offending, it was submitted that prior good character and a low risk of re‑offending are often features in cases of this nature. According to counsel, these features did not justify a suspension of the term of imprisonment in the present case, especially having regard to the respondent's distinct lack of remorse.
As to the absence of other types of offending, counsel for the State submitted that the fact that the respondent did not transmit pornographic material (either of himself or others) to the child persona, was not a mitigating factor. The absence of this kind of offending does not diminish the seriousness of the offences he did commit. Further, the fact that the respondent did not engage in other forms of depravity does not diminish the seriousness of the offences for which he was sentenced. It was submitted that the seriousness with which Parliament views the kind of behaviour engaged in by the respondent is reflected in the offences being concerned with an intent to procure a child to engage in sexual activity or to expose a child to indecent material. The penalty applies whether or not a child is actually engaged in sexual activity or actually exposed to indecent material. Further, according to counsel for the State:
(a)the mere fact that the respondent was not found in possession of child pornography, which constitutes a different offence, is of marginal relevance;
(b)whether the respondent masturbated or not while engaging in the communications is irrelevant; and
(c)it does not matter that the respondent did not take steps actually to meet the child persona beyond expressing an interest in talking with her by telephone: it would have been an aggravating factor if there had been an attempt to meet the child persona.
Counsel for the State submitted that the paramount public interest in cases involving contraventions of s 204B is the protection of children from sexual abuse.
As to ground 5, counsel for the State submitted that:
(a)the absence of multiple child personas was not a mitigating factor that justified suspension;
(b)the mere fact that the respondent admitted in his interview with the police that he made the communications in question is of minimal weight in that the communications could easily have been proved and the respondent denied in the interview and at trial that he believed he was communicating with a child; and
(c)although the respondent's voluntary cessation of contact with the child persona was a mitigating factor, it did not justify suspension of the term of imprisonment.

Comparable cases of offending against s 204B of the Code

In Speering, the appellant was convicted, after pleading guilty under the fast‑track system, on two counts of using an electronic communication with intent to expose a person he believed to be under the age of 13 years to indecent matter, contrary to s 204B(3)(b)(ii) of the Code, and one count of using an electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i) of the Code. The appellant was aged 29 years at the time of the offending and he believed he was communicating with a 12‑year‑old girl. He sent the child persona a photograph of an erect penis which appeared to have been taken shortly after ejaculation. He conversed with the child persona about masturbation; told her that he was aroused, had an erection and needed to orgasm; and, on several occasions, suggested to her that she should masturbate and gave her explicit instructions as to how this should be done. The appellant had favourable antecedents. He appeared otherwise to be of good character, he had genuine remorse, he had a good education and was in stable employment, and he was a single man who lived in the family home with his brother who was said to require care and attention because of a debilitating mental condition. Psychometric testing revealed that the appellant had 'significantly elevated anxiety and some indication of low mood'. There was also evidence that he had a 'severe personality disorder', although this was not pronounced. A psychologist considered that he was in the medium to high‑risk category for re‑offending. The appellant was sentenced to 12 months' imprisonment on each count. The sentences on two of the counts were ordered to be served concurrently but the sentence on the other count was made cumulative. Accordingly, the net effective head sentence was 2 years' imprisonment. A parole eligibility order was made. The appellant's appeal against sentence was dismissed.
Steytler P (McLure JA agreeing) referred to the earlier decisions of this court in Collier, Freemantle and Porter. His Honour said:
The seriousness with which the legislature views behaviour of this kind is reflected by the fact that the offence is one of using electronic communication with intent to procure the person in question to engage in sexual activity or to expose the person in question to indecent matter. The penalty consequently applies whether or not the child is actually procured to engage in sexual activity or exposed to indecent matter: see, in this respect, The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 [25]. Also, s 204B(8) provides that, for the purposes of subs (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person.
This court has repeatedly said that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment and that, as with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse: Collier [43]; The State of Western Australia v Freemantle [2008] WASCA 98 [8]; The State of Western Australia v Porter [2008] WASCA 154 [8]. The court has also repeatedly said that, in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] ‑ [321]; Collier [42]; Freemantle [9], [41] and Porter [8]. Of course, what was said in these respects does not absolve a court from considering whether a suspended sentence is appropriate. The cases to which I have referred merely set out what, in the experience of the court, might ordinarily be anticipated to follow from offending of this kind. However, in the present case it seems to me that the serious nature of the offences, taken together with the age of the appellant and his belief concerning the age of the 'child', demanded a sentence of immediate imprisonment, even allowing for the factors in mitigation, particularly the appellant's mental difficulties [10] ‑ [11]. (original emphasis)
In Speering, Miller JA noted that Collier, Freemantle and Porter involved prosecution appeals against sentence to which the common law principles governing State and Crown appeals were applicable. That is, Collier, Freemantle and Porter were decided before the introduction of s 41(4)(b) of the Criminal Appeals Act.
In Collier, the respondent was convicted, on his plea of guilty, of three counts of using an electronic communication with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i) of the Code. He was sentenced, 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. This court allowed the State's appeal. The sentences imposed by the sentencing judge were set aside and, instead, the respondent was sentenced to 18 months' imprisonment on each count, to be served immediately and concurrently with each other. A parole eligibility order was made.
Steytler P (McLure & Miller JJA agreeing) reviewed decisions on comparable legislation in other Australian jurisdictions. His Honour then said:
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.
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.
It seems to me that, even taking into account the matters favourable to the respondent, the sentence imposed was so manifestly inadequate as 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 [41] ‑ [43].

In Freemantle, the respondent pleaded guilty to four counts of using an electronic communication with intent to expose a child he believed to be under the age of 13 years to indecent material, contrary to s 204B(3)(b)(ii) of the Code and one count of using electronic communication with intent to procure a child he believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i) of the Code. He was placed on an intensive supervision order for a period of 18 months with supervision and programme requirements. An order was made that he undertake 80 hours of unpaid community work. The State's appeal against sentence was allowed. This court re‑sentenced him to 12 months' imprisonment on each count, to be served concurrently and immediately, with eligibility for parole.
Steytler P (McLure JA agreeing) said:
[T]he respondent had used his home computer to enter into 10 online 'conversations' with a person he believed to be a 12-year-old girl but who was in fact a police officer. The respondent's antecedents were good. He was 28 years old at the time of the offences. He is married, with a young son. He is educated and in stable employment. He has no prior convictions for offending of this kind or, since 1998, of any kind. Such convictions as he had were minor.
The offending behaviour was serious. The conversations were sexually graphic, even though the 'child' was seemingly innocent when it came to sexual matters. The respondent told the 'child' that he would like to perform cunnilingus on her. He asked her whether she would perform fellatio on him. He encouraged her to masturbate and gave her instructions on how to do so. On two occasions he sent her a graphic colour image of a semi-erect penis ejaculating. He suggested to the 'child' that she should bring a friend to also engage in sexual relations with him. In one of the communications he said that he was having sex with a 12‑yearold girl who had performed fellatio on him and allowed him to perform cunnilingus on her. He asked the 'child' to meet him for the purpose of engaging in sexual acts.
There is one important mitigating factor in the offending behaviour. It is that the respondent voluntarily 'blocked' the 'child' from his MSN account in February 2007. He did not again communicate with her and never met with her.
The respondent attempted to explain his behaviour by saying that he was having problems with his wife until February 2007, that he was emotional and that he was drinking every day after work. I should mention, in this last respect, that many of the conversations occurred in the early afternoon and one of them occurred in the morning.
A psychological report prepared in respect of the respondent for sentencing purposes suggests that he has a simplistic view of his sexual offending and that he does not fully recognise the seriousness of his actions or the impact that conduct of this kind can have on a child. He presents as a medium to low risk of sexual reoffending [3] ‑ [7].
After referring to Collier and VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] ‑ [321], Steytler P concluded:
In my opinion, this is a case that demanded a term of immediate imprisonment, even allowing for the fact that the respondent voluntarily stopped his offending behaviour … The sentence failed adequately to reflect the seriousness of the offending behaviour and placed undue emphasis on factors personal to the respondent. It also seems to me, with due respect, that the sentencing judge erred in finding that the respondent did not have paedophilic tendencies. In my opinion, the respondent's offending behaviour is explicable only by paedophilic tendencies [10].
In Porter, the respondent pleaded guilty on the fast‑track to three counts of using an electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity, contrary to s 204B(2)(b)(i) of the Code and four counts of using an electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter, contrary to s 204B(2)(b)(ii) of the Code. The respondent was then aged 24 years and engaged a police officer, whom he believed to be a 13‑year‑old girl, in a number of sexually explicit conversations over the internet. The conversations occurred between 22 January 2007 and 20 April 2007. The child persona presented as sexually naive. The conversations indicated an intention by the respondent to procure the child persona to engage in masturbation. He believed that she did as he asked. During the conversations he exposed himself to the child persona on numerous occasions by means of his web camera. On one of these occasions he masturbated to ejaculation. On another occasion he persuaded the child persona to telephone him while he masturbated. The respondent's antecedents were favourable. Psychological reports prepared in respect of him suggested (surprisingly, in the view of this court) that he had no specific interest in underage girls. He was regarded as at a low risk of re‑offending. The State's appeal against the sentences of 12 months' imprisonment on each count, to be served concurrently, suspended for a period of 12 months, was allowed.
Steytler P (McLure JA agreeing) said:
The maximum sentence prescribed for each offence committed by the respondent is a term of 5 years' imprisonment. Standards of sentencing customarily observed with respect to offences of that kind have recently been examined by this court in Collier and in The State of Western Australia v Freemantle [2008] WASCA 98. Those cases dealt with more serious offences (both involved similar offences concerning a person believed to be under 13 years of age). However, they indicate that, in the ordinary case, an adult person committing offences of the present kind, at least if they are committed in respect of a person believed to be only 13 years old, can expect to receive a term of immediate imprisonment: Collier [43]; Freemantle [8], [40]. It should be borne in mind, in cases involving sexual offending against children, that the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] ‑ [321]; Collier [42]; Freemantle [9], [41].
In this case, the depravity of the respondent's repeated behaviour, extending over a period of three months and directed at someone believed by him to be a sexually inexperienced and naïve 13-year-old child, demanded a term of immediate imprisonment. That was so notwithstanding the respondent's favourable antecedents and expressions of remorse, and accepting that he presents a low risk of re-offending. There was, in my respectful opinion, no basis upon which it could have been found that it was appropriate to impose suspended sentences of imprisonment, having regard to the serious and repetitive nature of the respondent's offending [8] ‑ [9].
This court set aside the sentences imposed by the sentencing judge and imposed, instead, a sentence of 12 months' imprisonment on each count, to be served concurrently and immediately, with eligibility for parole.

Ground 1 of the appeal: its merits

The decisions of this court in Collier, Freemantle, Porter and Speering establish, as a general proposition, that adults who engage in offending against s 204B should ordinarily anticipate receiving a term of immediate imprisonment. As Steytler P (McLure JA agreeing) noted in Speering, this general proposition does not absolve a sentencing judge from considering whether, in the particular circumstances, a suspended sentence is appropriate. His Honour explained:
The cases to which I have referred [that is, relevantly, Collier, Freemantle and Porter] merely set out what, in the experience of the court, might ordinarily be anticipated to follow from offending of this kind [11]. (emphasis added)
Each case must be determined on its merits.
In Speering, Collier, Freemantle and Porter, reference was made to VIM as authority for the proposition 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. The court was not, of course, equating the offences created by s 204B with the offences under consideration in VIM. The offender in VIM was convicted of 11 counts of rape, 13 counts of indecent assault and seven counts of sexual penetration without consent in relation to his step‑daughters. The offending commenced when the complainants were about 12 or 13 years of age. Plainly, the offences under consideration in VIM were significantly more serious than the offences created by s 204B.
Nevertheless, the offences committed by the respondent in the present case were, without doubt, serious. Section 204B creates offences that are intrinsically serious.
It is true, as the trial judge noted, that the dominant sentencing considerations in the case of offending against s 204B are, in general, punishment, personal deterrence, general deterrence and the protection of vulnerable children from cyber predators. However, 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 reoffending 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.
I have enumerated the factors which, in her Honour's view, lessened the seriousness of the respondent's conduct compared with other cases where immediate terms of imprisonment have been imposed on offenders for similar offences. See [59] above. Although several of these factors were not mitigatory in character, they were relevant in assessing the degree of seriousness of the respondent's offending. For example, her Honour's reference to no child pornography having been found on the respondent's computer or in his home, and her finding that the respondent did not masturbate while the communications in question occurred, suggested that his offending behaviour may not have been compulsive in nature. This, in turn, was relevant to the risk of his reoffending.
The trial judge described, with care, the facts and circumstances of the offences and the respondent's antecedents. She also analysed closely the psychological report. Her Honour noted that the respondent's personal circumstances had changed favourably since the offending behaviour. In particular, the social isolation and emotional issues which apparently precipitated the offending appeared to have been overcome, the respondent had established a stable relationship with a young woman and, despite the offending, he had wide support from family and friends.
The trial judge described her decision to suspend (correctly, in my view) as 'very lineball' (sentencing ts 43). It was open to her Honour, however, to conclude that it was not inappropriate to impose suspended imprisonment. Of particular importance, in this marginal case, were the following facts and circumstances:
(a)the respondent did not pursue Jasmine to the point of attempted contact by arranging or attempting to arrange a meeting or a telephone call;
(b)no offensive or pornographic pictures or representations were transmitted electronically;
(c)the respondent voluntarily ceased communicating with Jasmine in January 2008 (before the commission of counts 9 and 10), and later 'blocked' Jasmine from his contacts list; and
(d)the respondent's personal circumstances had changed favourably since the offending behaviour, and materially reduced the risk of his reoffending.
The State has not demonstrated that the trial judge's decision to suspend the term of imprisonment was vitiated by error. As I have mentioned, there is no single correct sentence, and sentencing judges must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory provisions. Her Honour had the substantial advantage of observing the respondent give evidence and forming views in relation to him for the purposes of sentencing. This advantage must be respected. There is no suggestion that it was misused. Also, as I have mentioned, Parliament expressly contemplated in s 76 of the Sentencing Act that a suspended term of imprisonment may be imposed in a case where a serious offence has been committed. The maximum penalty for the offences committed by the respondent was 5 years' imprisonment. Section 76 permits the suspension of a term of imprisonment of up to 5 years. The respondent's offending was not, on any view, within the worst category. I am not persuaded that the suspended term, subject to conditions, was so inadequate in the circumstances as to manifest error.
Ground 1 fails.

Grounds 2 - 5 of the appeal: their merits

Each of grounds 2 ‑ 5 asserts that the trial judge made an express error by taking into account certain factors in concluding that the term of imprisonment should be suspended.
A fair reading of her Honour's sentencing remarks as a whole reveals that her approach to the sentencing process was as follows.
After setting out the facts and circumstances of the offending, the respondent's antecedents and the applicable sentencing principles, the trial judge concluded that a term of imprisonment should be imposed.
Next, her Honour gave attention to the length of the individual term for each count and, in accordance with the totality principle, to whether the individual sentences should be served concurrently or cumulatively.
The trial judge then referred to the factors which, in her view, lessened the seriousness of the respondent's conduct compared with other cases where immediate terms of imprisonment have been imposed on offenders for similar offences. See [59] above.
Finally, her Honour considered whether the term of imprisonment should be suspended or not. The matters which, in her view, 'tipped the balance in favour of a suspended sentence … but only just' (sentencing ts 46) were these. First, the respondent's good character and antecedents. Secondly, the respondent having 'voluntarily [come] to [his] senses' and ceased contact with Jasmine after committing counts 1 ‑ 8. Thirdly, the change in the respondent's personal circumstances since the offending. Fourthly, her Honour's assessment of the respondent as at a low risk of reoffending. Fifthly, the respondent's good employment history. Sixthly, the respondent having established a stable relationship and, despite his offending, having wide support from his family and friends.
Before the trial judge identified these six matters, her Honour rightly noted that 'all matters relevant to whether a term of imprisonment should be imposed are also relevant to whether to suspend the sentence' (sentencing ts 46).
In my opinion, the factors which, in the trial judge's view, lessened the seriousness of the respondent's conduct compared with other cases where immediate terms of imprisonment have been imposed on offenders for similar offences (see [59] above) were not irrelevant in determining whether it was appropriate or not to suspend the term of imprisonment. I have already referred to the matters that were of particular importance. See [98] above.
Moreover, the trial judge was bound to take into account the maximum penalty for the offences (s 6(2)(a) of the Sentencing Act), the respondent's prior good character (s 6(2)(d) and s 8(1) of the Sentencing Act), any cooperation with the police (s 6(2)(d) and s 8(1) of the Sentencing Act) and the circumstances of the commission of the offences (s 6(2)(b) of the Sentencing Act) in deciding upon the appropriate sentence.
Grounds 2 ‑ 5 fail.

Conclusion

For these reasons, I joined with the other members of the court in dismissing the appeal.