The State of Western Australia v McCarthy - [2014] WASCA 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- McCARTHY [2014] WASCA 210

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 8 OCTOBER 2014

DELIVERED : 14 NOVEMBER 2014

FILE NO/S: CACR 108 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MURRAY NIEL McCARTHY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BRADDOCK DCJ
File No  :IND 768 of 2013

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted after trial of three counts of distributing child exploitation material and two counts of possession of child exploitation material - Respondent sentenced to 12 months' imprisonment conditionally suspended for 2 years and a $7,500 fine - Whether individual sentences were manifestly inadequate - Whether total effective sentence was manifestly inadequate - Respondent had positive antecedents - Whether hardship to family mitigatory

Legislation:

Child Pornography and Exploitation Material and Classification Legislation Amendment Act 2010 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Appeals Act 2004 (WA), s 31, s 41(4)(b)
Criminal Code (WA), s 219(2), s 220
Sentencing Act 1995 (WA), s 6, s 39, s 76, s 81

Result:

Appeal allowed
Respondent re-sentenced to a total effective sentence of 2 years' imprisonment
Eligibility for parole

Category: A

Representation:

Counsel:

Appellant: Mr J A Scholz
Respondent: Mr C L J Miocevich

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Curt Hofmann & Co

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

Abfahr v The State of Western Australia [2013] WASCA 87
Barbaro v The Queen [2014] HCA 2
Caulfield v The State of Western Australia [No 2] [2011] WASCA 230
Chan v The Queen (1988) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dragon v The State of Western Australia [2008] WASCA 252
G v The State of Western Australia [2005] WASCA 150
Hill v The State of Western Australia [2009] WASCA 4
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markovic v The Queen (2010) 30 VR 589; (2010) 200 A Crim R 510
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Naysmith v The State of Western Australia [2013] WASCA 32
R v Coultas [2002] WASCA 131
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
R v Lee [2013] WASCA 216
R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 40
R v Oliver [2003] 2 Cr App R (S) 15
Roffey v The State of Western Australia [2007] WASCA 246
Shelley v The State of Western Australia [2014] WASCA 154
Smit v The State of Western Australia [2011] WASCA 124

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is a State appeal against sentence.
The respondent was convicted after trial in the District Court of three counts of distributing child exploitation material (CEM) contrary to s 219(2) of the Criminal Code (WA) (counts 1 ‑ 3) and two counts of possession of CEM contrary to s 220 of the Criminal Code. On 8 May 2014, he was fined $2,500 in respect of each of counts 1 ‑ 3 and sentenced to 12 months' imprisonment conditionally suspended for 2 years in respect of each of counts 4 and 5, to be served concurrently. Thus the total effective sentence was a fine of $7,500 and 12 months' imprisonment conditionally suspended for 2 years. By virtue of his convictions, the respondent was made a reportable offender pursuant to s 6 of the Community Protection (Offender Reporting) Act 2004 (WA).
The State alleges that the individual sentences were manifestly inadequate (grounds 1 and 2). The State further alleges that the total effective sentence infringed the first limb of the totality principle (ground 3). Leave to appeal has been granted in respect of all grounds.

The facts of the offending

The facts in respect of counts 1 ‑ 3 are as follows. The respondent used an email account purportedly owned by a person named James Kowled under the name 'flufffy12' [sic]. On 22 February 2012, the respondent sent an email from this account to a number of recipients, attaching one video file which contained CEM, with the message, 'Anyone have links?' (count 1). One of the recipients was a person with the email address 'honeymebee'. Unknown to the respondent, 'honeymebee' was a Queensland police officer.
There followed further email communications between the respondent and 'honeymebee'. On 13 April 2012, the respondent sent an email to 'honeymebee' containing 15 images of CEM (count 2). On 14 April 2012, the respondent sent two emails to 'honeymebee' which contained a total of 13 images of CEM (count 3).
The video file the subject of count 1 showed a young girl undressing and 'behaving in an inappropriate way before the camera' (ts 386). The images in count 2 showed a girl who the learned sentencing judge said

'could be aged about 8', naked and playing on and around a mattress. Her Honour described the child as not appearing 'to be particularly provocatively posed'. She said that some of the images were framed in a 'pornographic or exploitive way rather than a simply playful, innocent way' (ts 385 ‑ 386). The images that formed count 3 depicted prepubescent females, some of whom were naked, in various poses.

In relation to each email, the police made inquiries about the IP addresses used by the sender. The IP address from which the first email was sent was registered to the respondent's wife. In respect of the other emails, they were traced to an IP address registered to his employer in Port Hedland.
On 20 August 2012, the police executed a search warrant at the respondent's home. At the time, the respondent was away working. The police seized various items. The respondent spoke to his wife about the search. As a result, he returned to Perth the next day with his personal laptop computer.
On 21 August 2012, the police seized the laptop computer which the respondent said was password protected and used exclusively by him. The computer was later analysed and found to contain CEM in the form of 6,231 still images (count 4) and 29 videos (count 5).

The nature of the child exploitation material

The learned sentencing judge described the level of perversion of the material the subject of counts 1 ‑ 3 as 'low' (ts 394).
Her Honour described at some length the nature of the images and videos the subject of counts 4 and 5. Her Honour referred to the evidence of a State witness, Detective Poulsen, who had testified at trial about the nature of this material by reference to the five categories identified in the guideline judgment of the Court of Appeal of England and Wales in R v Oliver [2003] 2 Cr App R (S) 15 being:
1.images depicting erotic posing with no sexual activity;
2.sexual activity between children, or solo masturbation by a child;
3.non‑penetrative sexual activity between adults and children;
4.penetrative sexual activity between children and adults; and
5.sadism or bestiality.
In addition to this evidence, her Honour viewed a representative sample of the material and made her own judgment about its nature: see Smit v The State of Western Australia [2011] WASCA 124 [17].
As to the material the subject of counts 4 and 5, her Honour said:
The evidence, specifically in terms of numbers of the material, was given in Detective Poulsen's evidence - it's page 122 of the trial transcript - but the numbers do bear repetition. 4,787 still images were found of the type which are naked children posing in some way, in some sexualised manner similar to the description of the material that I've already given.
I have viewed some of those further materials that have been said to fall into this category. They show prepubescent girls, either in states of partial undress or total undress. Sometimes in poses that appear to be entirely innocent. Sometimes in poses that appear to be aping older girls posing, as it were, for magazine shots, wearing very little. Sometimes posing, clearly, where they have been asked to display their genitals.
Those images are disturbing. It is disturbing to think that children would be required to pose in such a fashion. Some might be regarded as images where children would have been introduced to participate in a playful way, but some of it, clearly, could not be anything other than damaging to a child to behave in front of a camera like that.
In relation to other more serious images, there were identified 406 still images and five videos of a more serious nature which is, from time to time, called category 2, which shows non‑penetrative activity between children or masturbation by children of themselves or images of that kind. Of that category, there are a number, I've seen some examples and viewed some of those materials. They are unpleasant, disturbing and no doubt damaging to the children who were involved in the long term.
Furthermore, 231 images were found to be again at a stage more serious showing non‑penetrative sexual activity between children and adults. Any form of sexual activity between an adult male and a child as young as some of these are, some of them appear to be only in the age of sort of seven or eight, some of them are slightly older girls, is a matter of very grave concern.
Furthermore, there were 780 still images and 24 videos at a more significantly serious level called category 4 which significantly shows penetrative sexual activity between adults and children. These are very grave matters such as I have been shown in the examples of an adult male penis penetrating a girl who might appear to be as young as seven or eight.
In addition to that, there were 27 images that fall within a category 5 which includes behaviour which may be described sadistic, bestiality or humiliation, urination, defecation, bondage, things of that kind.
There do not appear to be, in terms of the sample that I have seen and the brief research as I've been able to make into the report, many of those images and the ones that I have seen appear to show a child tied to a bed but not undergoing any form of - partly‑naked child tied to a bed in a provocative pose but not in any other way being assaulted at the time. Clearly those are matters of very grave concern (ts 387 ‑ 388).
Later in the sentencing remarks, her Honour remarked that a significant proportion of the material in respect of counts 4 and 5 was 'of a seriously perverted, offensive, vile nature and the quantity is not a small quantity' (ts 394).

The respondent's personal circumstances

The respondent was, at the time he was sentenced, 39 years of age. He is an indigenous man brought up, along with his younger brother, by his parents in Three Springs, where he and his family were well‑respected. The respondent has no relevant criminal history. He left school at year 11. Initially, he was employed as an emu skinner. At the age of 18 he went to work with his father in the construction industry. Since then, he has been constantly employed in civil construction and in the mining industry.
His curriculum vitae is impressive and, without doubt, favourable to him. It reveals that he has, over the past 20 or so years, worked his way from being a labourer and plant operator to a senior construction superintendent on a large rail project in the Pilbara, which is the position he occupied when he was sentenced.
The respondent is married. He and his wife have been in a stable relationship for many years. They have four young children, all below the age of 10 years. Subsequent to his arrest, the Department of Child Protection became involved with his immediate family. The Department formed the view that the respondent posed no risk of harm to his children. Her Honour accepted that he had 'an appropriately protective attitude' towards his own children.
The respondent is the sole breadwinner for his family. In addition, he supports his wife's parents and his own parents. Her Honour accepted that the respondent took all of his responsibilities seriously.
Her Honour was favourably impressed by the respondent's involvement, for the past 9 years, in an indigenous business program designed to develop such businesses from the planning to the operational stage. She noted that the respondent was currently involved as a director in the setting up of a business for the Badimia people in the midwest of the State.
Her Honour commented positively upon the character references tendered to her which, in broad terms, attested to his good personal qualities and to his standing in the community.

The pre‑sentence and psychological reports

It is clear from both reports that the respondent steadfastly maintains his innocence. Contrary to his statement to the police, he told the author of the pre‑sentence report that his computer could be accessed by others with whom he worked. He told the author that his computer password was kept in plain sight for all staff to use. The respondent also asserted that his computer had been 'hacked'.
The author of the psychological report, Ms Tanina Oliveri, conducted psychometric testing which revealed 'no clinically significant elevations'. Ms Oliveri said that this suggests that 'there are no concerning personality features and that [the respondent] does not differ from the average person in the general population'.
According to Ms Oliveri, the respondent has no mental health, emotional, substance abuse or interpersonal problems. He denied any sexual deviancy. Apart from the offences themselves, Ms Oliveri noted no evidence of sexual attraction towards children or of attitudes that lent support to or condoned sexual violence or offending. Ms Oliveri considered that there were 'many protective factors' in his life. She said that he was 'likely to be considered a low risk of offending [by the Department of Corrective Services] as he has very few factors of concern'.
With respect to the offending, she noted 'possible chronicity' and 'diversity … due to the diverse ages of the children and the images accessed'. Because of the respondent's state of denial, its causes could not be determined.

The sentencing submissions at first instance

The State accepted that the quantity of CEM involved in counts 1, 2 and 3 was limited and that it may fairly be regarded as at a lower level of seriousness. It was submitted that the content of the first email was unsolicited and was indicative of the respondent's desire to acquire, and his willingness to trade, CEM. In respect of counts 2 and 3, while the provision of the material the subject of count 2 may fairly be regarded as responsive to a request for such material, that was not the position with respect to count 3.
In relation to counts 4 and 5, the State highlighted the quantity of the material and the significant amount of it which fell into Oliver categories 3, 4 and 5. The State pointed to the expert evidence adduced on behalf of the State at trial, to the effect that there was regular 'management' of the files and that the location of 'link files' indicated that they had been opened and viewed, albeit infrequently.
The State accepted that the respondent's personal circumstances were favourable and that he had been assessed as a low risk of reoffending.
The State submitted that, in view of his denials, the respondent could not call into aid as mitigating factors remorse or contrition.
The State's position was that the only appropriate sentences to be imposed upon the respondent were immediate terms of imprisonment. The State conceded that the sentences with respect to counts 4 and 5 should be served concurrently. With respect to counts 1 ‑ 3, it was submitted they constituted separate conduct from counts 4 and 5 and some partial accumulation of those sentences was warranted.
Counsel for the respondent submitted that although immediate imprisonment was generally imposed for offences involving child exploitation material, the respondent's antecedents and future prospects were very favourable. Counsel relied upon the impact that his incarceration would have on his immediate and wider family. Counsel remarked that it was 'most unusual to find … a fellow [of] this calibre facing this type of sentence'.
The respondent expressly eschewed, as a mitigating factor, his ethnicity, a stance he maintained during the hearing of this appeal.

The sentencing remarks

With respect to counts 1 to 3, her Honour found that the respondent distributed the material the subject of those charges amongst a group of persons who shared a common interest in CEM. She noted that he had not done so for profit.
In relation to counts 4 and 5, her Honour said that the respondent's possession of the material in those charges had to be seen in the context of the respondent's sharing of the material the subject of counts 1 ‑ 3. She noted that the material relevant to counts 4 and 5 had been moved around in the computer from time to time and had been 'accessed, managed and re‑organised'. Her Honour went on to say that, 'Clearly in those circumstances, it cannot be said that the material on the laptop was necessarily going to be always purely for personal use' (ts 388 ‑ 389).
Her Honour pointed out that possession of CEM was not a victimless crime. She said that she was very conscious of the need for general deterrence (ts 393).
It is clear that the respondent's subjective circumstances were the main driver in her Honour's decision to impose conditionally suspended imprisonment orders. She characterised those circumstances as amounting to 'quite remarkable' mitigation (ts 394). Amongst the respondent's personal circumstances, she noted:
•the absence of relevant prior convictions;
•that the respondent was a man of good character, describing him as 'honest and upright, family orientated and hardworking';
•she was 'morally certain' that he was unlikely to reoffend;
•his admirable progress in life from modest beginnings;
•the respondent's full participation in family and community life, both in the past and in the future;
•the total dependence of his family upon him and the dependence of his community upon him;
•the character references which spoke highly of him;
•the absence of any adverse psychological or psychiatric factors;
•the absence of any alcohol or substance abuse issues;
•that he adopted protective behaviours towards his own children;
•that he had been assessed as posing a low risk of reoffending; and
•that he did not present with any sexually deviant attitudes.
Her Honour summed up her views in this way:
But for your mitigating circumstances, but for you, the man who has been explained to me in all these materials, but for my view that you pose no

risk of reoffending and but for the clear understanding that you have of the need to protect children, not only your own, you would have had to serve this term (ts 395).

Submissions to this court

The appellant submitted that the individual sentences were manifestly inadequate. Counsel pointed to the maximum penalties for the offences, noting that they had recently been increased. Counsel submitted that each offence was individually serious. He referred to previous decisions of this court and submitted that the imposition of fines and the conditional suspended imprisonment order were inconsistent with the standards of sentencing customarily observed.
The appellant acknowledged the respondent's favourable antecedents, but said that offenders of this type usually have favourable antecedents. The appellant pointed out that the respondent did not have the advantage of mitigating factors such as early pleas of guilty and remorse.

The appellant submitted that the individual and total sentences imposed in this case in effect undermined the need for general deterrence in this type of offending and did not reflect the seriousness of what the respondent had done.
Counsel for the respondent conceded that the outcome of this case was inconsistent with previous authority from this court. He acknowledged, in substance, that this case stood apart even from the cases where non‑immediately custodial sentences had been imposed, referring, in particular, to R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 40, Naysmith v The State of Western Australia [2013] WASCA 32 and Shelley v The State of Western Australia [2014] WASCA 154.
However, it was submitted the learned sentencing judge had taken, as he put it, 'an extremely favourable view' with respect to the respondent which placed the present case out of the ordinary and justified the individual sentences and the total effective sentence that were imposed. Counsel for the respondent emphasised the effects of immediate incarceration upon the respondent's family, the support he provides his extended family and his community, his clear understanding of the need to protect children and the 'moral certainty' that he would not reoffend. The respondent's counsel submitted that the sentences were merciful, but that the learned sentencing judge was entitled to so act in the circumstances of the case.
The respondent's counsel also relied upon a factual comparison of the circumstances of the offending in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 with the present case. He emphasised the seriousness of the offences committed by the appellant in that case and asserted that they were more serious than the circumstances of the present case. He noted that the personal circumstances of Dinsdale were analogous to the personal circumstances of the respondent. He noted that the High Court in Dinsdale allowed the offender's appeal and reinstated the primary judge's sentence of a suspended imprisonment order. Counsel argued that, given the outcome in Dinsdale, the sentences imposed should stand.

Appellate sentencing principles

An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if the appellant demonstrates that the court at first instance made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well‑established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) of the Criminal Appeals Act2004 (WA).
The grounds of appeal allege implied rather than express error. In such circumstances, before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to have infringed the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2 [26]. A sentence may be manifestly inadequate because the wrong type of sentence is imposed: Dinsdale [6].
The orthodox approach to the question of manifest inadequacy is to examine the individual sentence, having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1988) 38 A Crim R 337, 342; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
The first limb of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
The grounds of appeal in this case require an analysis of both the individual sentences imposed by her Honour and the total effective sentence. The appellant's fundamental proposition is that her Honour imposed the wrong type of sentence and that sentences of immediate imprisonment were the only appropriate sentences.

The relevant statutory framework

Part 2 div 1 of the Sentencing Act 1995 (WA) (the Act) sets out the general principles of sentencing to be applied in this State. The overarching principle is that a sentence must be commensurate with the seriousness of the offence: s 6(1). The seriousness of an offence must be determined by taking into account the factors in s 6(2), being:
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
Section 6(4) requires a court not to impose a sentence of imprisonment (of any type) 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.
Section 39(2) of the Act sets out the various sentencing options which apply to natural persons, being:
(a)with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender; or
(b)with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender; or
(c)with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made); or
(d)with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender; or
(e)under Part 10 impose an ISO and order the release of the offender; or
(f)under Part 11 impose suspended imprisonment and order the release of the offender; or
(g)under Part 12 impose CSI and order the release of the offender; or
(h)under Part 13 impose a term of imprisonment.
Section 39(3) provides:
A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option.
The sources of power for a court to make a suspended imprisonment order are s 76 (suspended without conditions) and s 81 (suspended with conditions) of the Act. A suspended imprisonment order of any type 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: s 76(2), s 81(2).
The combined effect of s 6(4), s 39(2) and (3), s 76(2) and s 81(2) of the Act is as follows. Imprisonment of any type cannot be imposed unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Further, a term of immediate imprisonment cannot be imposed unless the sentencer is satisfied that suspended imprisonment, whether on conditions or not, was inappropriate.
In determining whether a suspended imprisonment order of any type may be imposed, a sentencer must revisit all of the circumstances relevant to the decision to impose the term of imprisonment: Dinsdale [18], [26], [84] and [85]. A sentence should be suspended whenever all of the circumstances make it appropriate to do so.
A suspended term of imprisonment, whether on conditions or not, may be imposed where a court sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less: s 76(1) and s 81(1) of the Act. Thus a suspended term of imprisonment may be imposed in cases of serious offending. That said, the power to suspend is not to be exercised in a vacuum. As McLure JA (as her Honour then was) observed in Collins v The State of Western Australia [2007] WASCA 108 [17], a sentencing judge must impose a type of sentence that falls within a sound discretionary range. In the exercise of the sentencing discretion, it is necessary for the sentencer to have regard to the sentencing decisions of this court, with the aim of achieving consistency of sentencing in the application of relevant legal principle and as a yardstick against which to examine a proposed sentence: Barbaro [40] ‑ [41].
This court has made it clear that for serious offending of the type committed by the respondent, ordinarily, as a matter of fact, the only appropriate sentence is immediate imprisonment: Hill v The State of Western Australia [2009] WASCA 4 [28]; R v Lee [2013] WASCA 216 [30]. Annexed to these reasons is a schedule of sentencing cases decided by this court and its predecessor for State offences with respect to CEM or, as it used to be called, child pornography. It is apparent from them, that as a matter of fact, a sentence other than immediate imprisonment is exceptional. However, even when immediate imprisonment is ordinarily the appropriate penalty, a sentencer must, having regard to the facts and circumstances of the case, decide the appropriate penalty in the particular case. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate type of sentence: Collins [21] and Lee [32].

The respondent's submissions concerning Dinsdale v The Queen

To begin, it is convenient to deal with the respondent's submissions with respect to Dinsdale.
The offender in Dinsdale was convicted after trial of one count of sexual penetration of a child under the age of 13 years and one count of indecently dealing with the same child. The offences were committed separately, but on the same day. Dinsdale penetrated the child's vagina with his thumb and pulled her underpants aside to view her genital area.
The personal circumstances of Dinsdale were analogous to those of the respondent. Notably, Dinsdale had no relevant record of convictions, was a family man with three young children, was gainfully employed and was well regarded by those who knew him. Like the respondent in this case, Dinsdale was not remorseful.
The trial judge in Dinsdale imposed a suspended imprisonment order. The Court of Criminal Appeal upheld a Crown appeal against sentence and imposed a term of immediate imprisonment totalling 30 months with parole eligibility.
The respondent's submissions as to the effect of the result in Dinsdale upon the present case cannot be accepted.
As has been said on many occasions, sentencing is not a mathematical exercise. Leaving to one side questions of parity (which are irrelevant to this case), the outcome in one case does not compel the outcome in some future case said to have similar features. Put another way, the High Court in Dinsdale was not mandating the same outcome in other cases involving different offences which some might say are as serious or less serious, than the facts in that case. Moreover, the issue of prevalence, which is a relevant consideration in the present case, was absent in Dinsdale.

Were the sentences imposed on counts 4 and 5 manifestly inadequate? (Ground 2)

I will first deal with the question of whether the individual sentences on counts 4 and 5 were manifestly inadequate, having regard to the fact that they were plainly the most serious of the offences committed by the respondent.
The maximum penalty for an offence of possession of CEM is 7 years' imprisonment. The maximum penalty was increased in 2010 by the Child Pornography and Exploitation Material and Classification Legislation Amendment Act 2010 (WA). The increase in the maximum penalty is an indication that sentences for the offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]. The purpose of the increase in the maximum penalty was made clear in the second reading speech in respect of the relevant bill, delivered by the then Attorney General, Mr Christian Porter, on 21 April 2010 who said:
Child exploitation material is pernicious and contemptible. By its very nature, it destroys the innocence and security that every child is entitled to. Therefore, persons who exploit children by possessing or disseminating this material should be subject to severe criminal sanctions. For these reasons, the Government will modernise and make it absolutely clear that the production, possession and dissemination of this material will not be tolerated. Our criminal law must, and will, contain harsh deterrents in this regard. These are serious offences (Hansard p.1934).
There can be no doubting the gravity of the respondent's offending. The amount of CEM found on the respondent's computer was substantial, and comprised a combination of both still images and videos. While the bulk of the images were at a low level, a significant proportion were not, depicting, as they did, penetrative sexual activity between children and adults. 24 out of the 29 videos showed that kind of sexual activity. In other words, significant numbers of images and videos possessed by the respondent depicted very serious sexual abuse of children by adults.
The evidence before the learned sentencing judge, which she accepted, was that the material on the computer had been managed, suggesting that the respondent's possession of it was calculated and deliberate.
The quantity of the material, its degree of perversion and debauchery, and the respondent's organisation and possession of it in the context that he had distributed CEM to others, compel the drawing of inferences that:
(a)he had a deviant sexual interest in it, despite his denials to the contrary;
(b)the level of interest he had was considerable; and
(c)his interest was not transitory but rather it was ongoing.
I have already referred to the sentencing decisions of this court and its predecessor and the principles which have been laid down. The policy which underpins these principles is well recognised.
Offences relating to CEM are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse: R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 [9]; R v Coultas [2002] WASCA 131; G v The State of Western Australia [2005] WASCA 150; Hill [28].
The prevalence of offending of this type is an issue because CEM is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions. Offences in relation to it are often difficult to detect and investigate.
The major sentencing consideration is general deterrence. The court's duty is to protect children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, CEM. This requires courts to send an unequivocal message that the distribution and possession of CEM will ordinarily, as a matter of fact, be met with immediate imprisonment. Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight: Lee [31].
Of the large number of cases cited in the schedule, a majority of the offenders had pleaded guilty and had good antecedents. In only four cases have terms of immediate imprisonment not been upheld or imposed, namely Liddington, Dragon v The State of Western Australia [2008] WASCA 252, Naysmith and Shelley.
Liddington involved a much smaller quantity of child pornography than the present case (a total of 437 images, plus a number of books and magazines). The appellant in Dragon possessed six images of child pornography in the lower end of the scale of seriousness and was sentenced to a period of immediate imprisonment on another indictment for similar offences. In Naysmith, the appellant had an intellectual disability such that little weight could be given to general deterrence. In Shelley, the appellant voluntarily attended upon the police after being requested by detectives to do so. He brought with him his laptop computer upon which he had CEM in circumstances where he had ample opportunity to conceal it or destroy it before going to the police. The amount of CEM he possessed was, at least in terms of images, much less than the respondent in this case. Further, the appellant was remorseful and had, on his own initiative, successfully embarked on a rehabilitative program. In all of these cases, the offender pleaded guilty.
An examination of the cases confirms that those who commit offences in respect of CEM are, like the respondent, commonly of prior good character, are well regarded by those who know them and have done good work in the community. It is not at all unusual to see an offender who has no prior criminal record and is assessed as having a low risk of reoffending. Offenders are not infrequently people who have standing in the community and have achieved much in their life. These factors can only be given limited weight because of the need for general deterrence.
It is appropriate to observe that in the majority of the cases, offenders have the considerable advantage of a plea of guilty and, not infrequently, remorse. These factors are, of course, absent in the present case. This is not to say that the respondent's choice to go to trial and his stance of innocence after conviction are aggravating circumstances. They are not. However, the respondent cannot call into aid his plea or remorse as mitigating factors.
It must be accepted that the respondent's personal circumstances, taken as a whole, were favourable. One can admire a person of modest beginnings who, through application and ability, becomes successful and well regarded. However, the respondent committed these offences away from the eyes of those who knew him, over what must have been a substantial length of time. They are completely inconsistent with the persona he portrayed to the outside world. Further, his moral culpability for these offences is underlined, given his knowledge and understanding of child protection issues as they relate to his own children.
The sentencing discretion of the primary judge must be respected. It is no easy feat to establish implied error in the making of a discretionary judgment. However, I have been persuaded that such an error has been made with respect to the sentences her Honour imposed on counts 4 and 5. In my opinion, each sentence was, in all the circumstances, manifestly inadequate, particularly having regard to the quantity and nature of the CEM, the vulnerability of the children depicted in the CEM, the prevalence of offending of this nature stoked by the digital revolution and the need to provide general deterrence and thus protect children. While the respondent's personal circumstances are favourable, they cannot, on the facts of this case, have reasonably justified the imposition of a conditionally suspended imprisonment order. The only appropriate sentences, having regard to the seriousness of each offence (as defined in s 6(2) of the Act), were sentences of immediate imprisonment.
The orders made at first instance cannot be justified upon hardship to others. It may be accepted that the immediate imprisonment of the respondent will cause hardship, not just to the respondent's immediate family but also to his parents and his parents‑in‑law. There may also be an impact upon the Badimia people. The general sentencing principle is that hardship to others as a result of a sentence of imprisonment is not generally a mitigating circumstance. However, there are exceptional cases where hardship may be mitigating. This is not one of those cases. The hardship which will be caused to the respondent's immediate and wider family and the Badimia people is the kind of hardship ordinarily encountered when people with family and business responsibilities are imprisoned. The circumstances of this case are not exceptional and cannot justify conditionally suspended imprisonment orders: see Markovic v The Queen (2010) 30 VR 589; (2010) 200 A Crim R 510 [6] ‑ [7] and Abfahr v The State of Western Australia [2013] WASCA 87 [71].

Ground 2 of the appeal has been made out.

Were the sentences imposed on counts 1 ‑ 3 manifestly inadequate? (Ground 1)

The maximum penalty for distributing CEM was also increased in 2010, from 7 years' imprisonment to 10 years' imprisonment.
Although the circumstances of count 1 involved the distribution of only one video file of a low level, the respondent did so to a number of recipients with the plain purpose of acquiring more CEM, as demonstrated by his question, 'Anyone have links?' The question he posed invited the recipients of his email to provide him with internet links to CEM.
The emails which constitute counts 2 and 3 were specifically to 'honeymebee', and not to any wider audience. Nevertheless, they show the respondent's enthusiasm and persistence in acquiring more CEM.
As the different maximum penalties indicate, the distribution of CEM is regarded by Parliament as a more serious offence than mere possession.
Each of the distribution offences needs to be seen in the light of the possession offences. They are not isolated offences. They reveal the extent of the respondent's interest in CEM and his desire to communicate with those who have a like interest in order to acquire more of this type of material.
There are two decisions of this court or its predecessor with respect to the supply or distribution of CEM: see Coultas and Caulfield v The State of Western Australia[No 2] [2011] WASCA 230. But it cannot be doubted that the same general principles that apply to possession offences apply to distribution offences: Caulfield [37]. The ordinary sentence, as a matter of fact, in such cases must be a term of immediate imprisonment.
There is no need for me to repeat what I have already said about the respondent's personal circumstances.
With great respect to her Honour, fines were a manifestly inadequate punishment for each of the counts of distributing CEM in all of the circumstances. Fines did not properly reflect the seriousness of each offence, particularly having regard to the statutory penalty, the circumstances of the commission of each offence, the vulnerability of the child victims and the need for general deterrence. Neither the respondent's personal circumstances nor the impact of a custodial sentence upon others close to the respondent could justify the imposition of fines in this case. In any event, by reason of the terms of immediate imprisonment on counts 4 and 5, the terms of imprisonment on counts 1, 2 and 3 could not be suspended: see s 76(3) and s 81(3) of the Act. In my opinion, only immediate terms of imprisonment were appropriate.
Ground 1 has been made out.

Did the total effective sentence imposed upon the respondent infringe the first limb of the totality principle? (Ground 3)

It follows from what I have said about the individual sentences that were imposed at first instance, that the total effective sentence infringed the first limb of the totality principle. The combination of fines and conditionally suspended imprisonment was an erroneous reflection of the respondent's overall criminality, having regard to all of the circumstances including those referable to him personally.
Ground 3 has been made out.

The residual discretion

I have concluded that the grounds of appeal have been made out and that the individual sentences and the total effective sentence were erroneously lenient. This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient. The respondent did not submit that in the event that the grounds of appeal were made out, this court should invoke the residual discretion and dismiss the appellant's appeal. I am unable to discern any reason why this court should invoke the residual discretion. Error having been established, this court's intervention is now required in this case to correct the sentences that were originally imposed and to maintain proper sentencing standards with respect to offences of possession and distribution of CEM.

Re-sentencing

This court must re‑sentence the respondent according to the legal framework set out between [50] and [58] of these reasons. I have had regard to all of the circumstances of the case, including the respondent's personal circumstances and antecedents. The only appropriate sentence on each count is a term of immediate imprisonment. Having regard to all of the circumstances of the case, including the seriousness of each offence, I would, in respect of counts 1 ‑ 3, impose, in each instance, 6 months' imprisonment. In respect of counts 4 and 5, I would, having regard to all the circumstances of the case, including the seriousness of each offence, impose on each count 2 years' imprisonment. At first instance, the appellant conceded that the sentences for counts 4 and 5 should be served concurrently and I would so order. Having regard to totality, I would order that the sentences on counts 1 ‑ 3 be served concurrently with each other and concurrently with the sentences on counts 4 and 5. Thus, the total effective sentence I would impose upon the respondent is 2 years' immediate imprisonment. I would make a parole eligibility order with respect to the sentences.

Orders

I would make the following orders:
1.The appeal is allowed.
2.The sentences imposed by her Honour Braddock DCJ on 8 May 2014 be set aside. In lieu thereof, the respondent is sentenced as follows:
(a)on each of counts 1 ‑ 3 - 6 months' immediate imprisonment; and
(b)on each of counts 4 and 5 - 2 years' immediate imprisonment.
3.The sentences are to be served concurrently with each other so that the total effective sentence is 2 years' immediate imprisonment.
4.The respondent is eligible for parole.
On the assumption that the respondent has spent no time in custody, the minimum term he will have to serve before he is eligible for parole is 1 year from the date he is taken into custody as a result of the decision of this court.

Schedule

This schedule deals with cases with respect to offences contrary to s 220 of the Criminal Code and its predecessor, s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

Shelley v The State of Western Australia [2014] WASCA 154
Wilhelm v The State of Western Australia [2013] WASCA 273
Godfrey v The Queen [2013] WASCA 247
Downie v The State of Western Australia [2013] WASCA 244
DO v The State of Western Australia [2013] WASCA 218
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
Naysmith v The Queen [2013] WASCA 32
Dartnall v The State of Western Australia [2012] WASCA 251
Phinthong v The Queen [2011] WASCA 192
Smit v The State of Western Australia [2011] WASCA 124
Young v The State of Western Australia [2011] WASCA 13
Hine v The State of Western Australia [2010] WASCA 216
Schaper v The State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270
M v The State of Western Australia [2010] WASCA 77
DAR v The State of Western Australia [2010] WASCA 72; (2010) 199 A Crim R 279
Hill v The State of Western Australia [2009] WASCA 4
Dragon v The State of Western Australia [2008] WASCA 252
The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430
The State of Western Australia v Rock [2007] WASCA 121
Hutchins v The State of Western Australia [2006] WASCA 258
G v The State of Western Australia [2005] WASCA 150
Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435
Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237
R v Coultas [2002] WASCA 131
Pendleton v The Queen [2002] WASCA 4
Lee v The Queen [2000] WASCA 73; (2000) 112 A Crim R 168
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
Kirk v The Queen (Unreported, WA CCA, Library No 980067, 17 February 1998)
R v Liddington (1997) 18 WAR 394; (1997) 97 A Crim R 40