The State of Western Australia v Porter
[2008] WASCA 154
•24 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PORTER [2008] WASCA 154
CORAM: STEYTLER P
McLURE JA
MILLER JA
HEARD: 20 JUNE 2008
DELIVERED : 24 JULY 2008
FILE NO/S: CACR 146 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KURT CHARLES PORTER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY CJDC
File No :IND 1339 of 2007
Catchwords:
Criminal law - Sentencing - Using electronic communication with intent to expose a child believed to be under 16 to indecent matter (four counts) - Using electronic communication with intent to procure a child believed to be under 16 to engage in sexual activity (three counts) - Section 204B(2)(b)(ii) and s 204B(2)(b)(i) of Criminal Code - Offender sentenced to 12 months' imprisonment suspended for 12 months respectively - Whether manifestly inadequate - Whether sentence of imprisonment required
State appeal - Principles - Whether suspended sentence of imprisonment manifestly inadequate - Whether sentence of imprisonment inevitable
Legislation:
Criminal Code (WA), s 204B(2)(b)(i), s 204B(2)(b)(ii)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1
Result:
Appeal allowed
Resentenced to 12 months' imprisonment
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen
Respondent: Ms B J Lonsdale
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: D G Price & Co
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Keating v The State of Western Australia [2007] WASCA 98
R v Chan (1989) 38 A Crim R 337
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Freemantle [2008] WASCA 98
The State of Western Australia v Richards [2008] WASCA 134
Vagh v The State of Western Australia [2007] WASCA 17
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Yates v The State of Western Australia [2008] WASCA 144
STEYTLER P: I have had the advantage of reading the judgment of Miller JA. I adopt his comprehensive recitation of the facts, sentencing remarks and grounds of appeal.
As Miller JA's judgment reveals, the then 24‑year‑old respondent engaged a person (a police officer) who he believed to be a 13‑year‑old girl in a number of sexually explicit internet conversations. The conversations took place over the period 22 January 2007 to 20 April 2007. The 'girl' presented as sexually naïve. By his part in the conversations the respondent intended to procure the 'girl' to engage in sexual activity in the form of masturbation. He believed that she did as he asked. He also exposed himself to the 'girl' on a number of occasions by means of his web camera. On one of these occasions he masturbated to ejaculation. On another occasion he persuaded the 'girl' to telephone him while he masturbated.
The respondent was consequently charged with, and pleaded guilty on the fast‑track to, a number of counts of using electronic communication with intent to:
(a)procure a person believed by him to be under the age of 16 years to engage in sexual activity contrary to s 204B(2)(b)(i) (three counts); and
(b)expose a person believed by him to be under the age of 16 years to indecent matter, contrary to s 204B(2)(b)(ii) of the Code (four counts).
The respondent's antecedents were favourable. Also, psychological reports prepared in respect of him suggested (surprisingly, in the light of the matters referred to by Miller JA in his reasons) that he had no specific interest in underage girls. He was regarded as presenting a low risk of re‑offending. He was sentenced to a term of 12 months' imprisonment on each count, suspended for a period of 12 months.
I need deal only with the ground of appeal (ground 1) that contends that the sentences imposed were manifestly inadequate.
In determining whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive or manifestly inadequate, the sentence must be viewed in the perspective of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337, 342. The court may not intervene merely because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen (2000) 202 CLR 321, 324 ‑ 325.
State appeals are in a special category. The principles applicable to them have been set out in some detail in The State of Western Australia v Collier [2007] WASCA 2500 [20] ‑ [23]. I will not repeat them. Those principles are applicable to this appeal notwithstanding the existence of s 41(4)(b) of the Criminal Appeals Act 2004 (WA). That section was inserted into the Criminal Appeals Act by the Criminal Law and Evidence Amendment Act 2008 (WA), which came into operation on 27 April 2008, after this appeal was commenced: The State of Western Australia v Richards [2008] WASCA 134.
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. The sentences imposed were manifestly inadequate and ground 1 should be upheld.
Like Miller JA, I would set aside the sentences imposed by the sentencing judge and impose, in lieu, a sentence of 12 months' imprisonment to be served immediately, on each count. Those sentences, which should be served concurrently (for totality reasons), reflect the principles relevant to State appeals against sentence and also the application of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (as to which see Yates v The State of Western Australia [2008] WASCA 144). The respondent should be eligible for parole. The sentences should date from the day upon which the respondent is taken into custody for the purpose of serving the term of imprisonment now imposed: see, in this respect, s 41(1)(b) of the Criminal Appeals Act 2004 (WA).
McLURE JA: I agree with Steytler P.
MILLER JA: The respondent was indicted in the District Court at Perth on four counts of using electronic communication with intent to expose a child believed to be under 16 to indecent material, contrary to s 204B(2)(b)(ii) of the Criminal Code (WA) and three counts of using electronic communication with intent to procure a child believed to be under 16 to engage in sexual activity, contrary to s 204B(2)(b)(i) of the Criminal Code.
The respondent pleaded guilty on the 'fast‑track' to all counts and was sentenced by Kennedy CJDC on 16 October 2007 to imprisonment for 12 months on each count, suspended for a period of 12 months. Each sentence was ordered to be served concurrently.
Section 204B was inserted into the Criminal Code by Act No 3 of 2006, s 4. Section 204B(2) (which section incorporates the two provisions under which the respondent was charged in this case) is (relevantly) in the following terms:
(2)An adult who uses electronic communication -
...
(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.
Section 204B(3) repeats these provisions, save that it relates to persons under the age of 13 years and the maximum penalty prescribed is imprisonment for 10 years.
Application of the 'transitional provisions' to s 204B of the Criminal Code
A preliminary question which arises in this case is whether the 'transitional provisions' contained within sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) apply to s 204B of the Criminal Code. The sentencing judge made no reference to the transitional provisions in sentencing the respondent and did not indicate whether or not she considered them applicable to the relevant subsections of s 204B.
The respondent does not raise the issue in the grounds of appeal, but contends in its outline of submissions that, despite the position taken in The State of Western Australia v Collier [2007] WASCA 250, the schedule does not apply to s 204B of the Criminal Code, as the latter provision came into effect after the amendments to the Sentencing Act1995 (WA) contained within the transitional provisions.
In Collier Steytler P (with whom McLure and Miller JJA agreed) took account of the mandatory reduction required by sch 1 of the Sentencing Legislation Amendment and Repeal Act in resentencing the respondent for offences committed against s 204B(3)(b)(i) of the Criminal Code) [48].
By reason of the decision in Yates v The State of Western Australia [2008] WASCA 144 , it is now clear that sentences imposed for offences against s 204B (whether under s 204B(2) or s 204B(3)) attract the one‑third discount required by cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
Principles governing prosecution appeals against sentence
The principles applicable to prosecution appeals have been stated many times. In Dinsdale v The Queen (2000) 202 CLR 321, 340 ‑ 341, Kirby J expressed those principles in the following terms:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' … such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced … The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences … This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.
In this court they were recently re‑stated by Steytler P in Collier [18] ‑ [23]. These principles are applicable to the present appeal, because the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which has done away with the 'double jeopardy' principle and its consequence that when re‑sentencing an offender on a prosecution appeal a sentence will ordinarily be less than the sentence which should have been imposed at first instance is not retrospective in operation. The section applies only to cases in which the sentence appealed dates after 27 April 2008. See The State of Western Australia v Richards [2008] WASCA 134.
The facts of the present case
The facts presented to the sentencing judge by the prosecutor on 16 October 2007 were as follows:
Count 1
On 22 January 2007, the respondent utilised a desktop computer from his home address in Wembley Downs to engage people online through Internet chat rooms. He used the user names aTOOHOT22M, KuRt24M and gRAND^HuSTle. The respondent engaged a police officer (posing as a 13‑year‑old female) in online Internet chat medium IRC, which is Internet relay chat, and Windows MSN Messenger.
The respondent portrayed himself as a 17‑year‑old male. The prosecutor's summary of what was contained in the online conversation on 22 January 2007 was as follows:
The offender ... asked the child persona if she had ever played with herself, and if she had ever rubbed herself before. He then commenced to instruct her on how to do this. He procured the operative to remove her pants and to use two fingers to start rubbing her pussy.
Through this conversation the offender was asking the operative how it felt and suggested that he telephone her to talk her through her actions. He later asked the operative to try putting a finger inside her vagina.
From the outset to the conversation, the respondent was aware that he was communicating with a person who represented herself to be 13 years of age. This is apparent from the following extract:
Session Start: Mon Jan 22 17:16:16 2007
[17:16] Session Ident: KuRt24M ([email protected])
[17:16] <KuRt24M> its me toohot22m
[17:16] <KuRt24M> sorry got d/c
[17:16] <KuRt24M> well r u horny?
[17:16] <sweetjasmine> i dunno , wot doz that mean
[17:16] <KuRt24M> how old r u
[17:16] <KuRt24M> ?
[17:17] <sweetjasmine> 13Session close: Mon Jan 22 17:20:03 2007
An example of what the respondent said to the police officer with whom he was communicating (to whom I shall refer as 'the child') was as follows:
These passages are sufficient to indicate the nature of the respondent's communication with the child on 22 January 2007.
Count 2
On the same day (22 January 2007), the respondent invited the child to view his web camera. He asked her if she wanted him to show himself and she replied, 'Okay'. He then positioned himself in front of his web camera, exposing his erect penis. He placed one hand on his penis and stroked it in front of the camera. He then terminated the camera view and asked the child whether she liked what she saw. She replied that she did. After doing this, the respondent requested that the child delete him from her contact list.
Count 3
On 23 January 2007, the respondent again engaged the child in an online chat forum. The forum on this occasion was Windows MSN Messenger. The respondent asked the child if she would like to try masturbating again and he suggested that he could telephone her to talk her through it. He procured the child to remove her pants and start rubbing herself and explained to her what was happening. An extract which sufficiently indicates the nature of the conversation is as follows:
Count 4
On the same day, and following the conversation to which count 3 refers, the respondent invited the child again to view his web camera while she continued to masturbate. He positioned the camera in such a way as to show his exposed penis. He stroked his penis with one hand until he obtained an erection. He continued talking online with the child, asking if she would suck his penis. He ejaculated in front of the web camera, saying:
Count 5
On 5 February 2007, the respondent again engaged the child on Windows MSN Messenger online chat forum. He asked whether she had been 'horny lately' and inquired whether she had played with herself. He suggested that he and the child telephone each other for the purpose of having phone sex. His words were, 'We shud try it on the fone'. He again asked the child to watch him on the web camera and he exposed his erect penis on the web camera.
Count 6
On the same day (5 February 2007), the respondent deactivated his web camera and instructed the child to telephone him. He provided his contact number. In providing his telephone number, the respondent said, 'But dunt call again this numba aftaok'. An actress then telephoned the respondent and in the course of the call, the respondent told the child persona that he was 'hard'. He breathed heavily and said that he had 'cum'. He asked the child whether she liked what she had previously seen on the web camera. The telephone call was then terminated and the child was told to go back to the computer, and resume the conversation. She did so, saying, 'that was naughty', to which the respondent responded, 'haha it was funny but I was nervis ... I cummd'.
Count 7
On 20 April 2007, the respondent engaged the child again on Windows MSN Messenger online chat forum. He asked the child if she felt like touching herself and encouraged her to masturbate by instructing her how to rub her vagina and place two fingers inside her vagina, moving them in and out. During the course of the conversation, he told the child that he was rubbing himself.
The following extract of the conversation sufficiently indicates the nature of the instructions given:
A 11.30 am on 20 April 2007, police attended at the address of the respondent and executed a search warrant. A computer was located in an upstairs room. The conversation in which the respondent had been engaged with the child that morning was still displayed on the computer screen.
The respondent was taken to the offices of the Child Protection Squad where he engaged in a video record of interview, at the conclusion of which he was charged.
Submissions on behalf of the respondent
Counsel for the respondent accepted the accuracy of the statement of facts presented by the prosecutor. He stressed to the sentencing judge that the respondent had excellent antecedents, with no record of convictions. He made reference to psychological reports and relied upon their conclusions to submit that the respondent did not 'necessarily have any proclivity towards behaviour of or towards an underaged person' (ts 6).
Counsel for the respondent indicated that the respondent had fully co‑operated with investigating officers and given a full account of his offending. This was said to be a manifestation of his remorse and desire to co‑operate with police.
The respondent was described as 24 years of age at the time of the commission of the offences and 25 years of age at the time of sentencing. It was said that on the first day upon which the conversations had occurred, the respondent had resigned from his place of employment and gone home 'full of dread'. It was then that he had gone to the Internet looking in the first instance for jobs. He had gone to a pornography site and then found the contact with the child, in consequence of which the offences had occurred.
By the time of sentencing, the respondent was re‑employed. He was described as 'mild, gentle and polite', and much reliance was placed upon the psychological assessments of him, to which I will turn. A submission was made that a non‑custodial disposition was open, with the possibility of a conditional suspended imprisonment order.
Psychological reports
There were two psychological reports before the sentencing judge. One was from Ms Claire Lynn, a forensic psychologist with the Department of Corrective Services. It was countersigned by the clinical supervisor of offender programmes. Ms Lynn reached the conclusion that the respondent did not hold any specific attitudes towards children, or the victim in this case. She said:
Overall, it appears that Mr Porter disregarded the victim and her age as irrelevant in comparison to his sexual needs at the time. As such it seems that a level of desensitisation or ability to distance himself in this manner (as a likely result of excessive pornography use) probably facilitated his offending as opposed to holding any specific attitudes towards children or the victim.
Ms Lynn concluded that an actuarial estimation of the respondent's risk of reoffending (sexually) was not appropriate 'in light of his offence type and lack of prior offending'. Nevertheless, a review of risk factors suggested that he was a low reoffence risk and unlikely to be a priority for specialist sex offender treatment.
The second psychological report was from Peter J Dunlop, who was commissioned by the respondent's solicitors. He, too, concluded that the respondent did not have a specific sexual interest in underage girls. He said:
Given the above and the absence of any other evidence to the contrary I am of the opinion that Mr Porter's engagement with the female who described herself as 13 years old in the chat room does not reflect a specific sexual interest in underage girls.
Mr Dunlop conceded that the respondent's behaviour and regular use of pornography and chat room contacts as a means of expressing his sexuality did 'indicate a flaw in his sexual development', but was of the opinion that he represented a low risk of reoffending.
These psychological reports are difficult to accept. In particular, the conclusions that the respondent had no specific sexual interest in 'underage girls' sit uneasily with the facts of the case. The transcript of the Internet chat conversations reveals that from the outset, the respondent inquired about the age of the child and when told she was 13 years of age, avidly continued conversations with her, encouraging her to masturbate and to view him on his webcam masturbating. He represented himself as being 17 years of age. The instructions in relation to masturbation give every indication of an interest in communication for sexual purposes with a child.
Neither of the psychologists appear to have read the transcript of the Internet chat conversations. Both psychologists indicate in their reports that they considered the Statement of Material Facts, but there is no reference to the transcripts of the conversations.
In any event, the respondent's behaviour suggests strongly that he was interested in communication of a sexual nature with the child because she was a child.
I made reference to a similar problem with a psychological report in The State of Western Australia v Freemantle [2008] WASCA 98 [51] ‑ [52].
The reports of the psychologists contained material to be considered by the sentencing judge, but the sentencing judge was by no means bound by the contents of them. In my opinion, the conclusions reached about the respondent's lack of interest in underage girls cannot be accepted.
Sentencing comments
The sentencing judge's observations upon sentence were brief. There was no review of the actual facts of the case, and her Honour made an initial observation about the fact that the respondent was talking to a police operative. She said:
In actual fact you were talking to a police operative. Our legislation says that that makes no difference, and the reasons for that are the reasons set out by the prosecutor in this matter when she pointed out to you and to the court the seriousness of these offences, and the difficulties it can create in the community where people engage young people, and how easy it appears to be to do that.
While the legislation says that it makes no difference, the fact is that in your case there was no victim ...
Her Honour also made a finding that the respondent made no attempt to have an actual meeting with the child, although noting that he did have a telephone call with her. In this respect, the sentencing judge was mistaken because she regarded the phone call as having been initiated by the child, not by the respondent. She said:
[T]hough you did have a phone call, although I note that the operative rang you, you did not ring the operative ...
In fact, as I have indicated, it was the respondent who encouraged the child to telephone him and it was in response to his direct request that she do so that the call was made.
The sentencing judge regarded the offences as 'very, very serious indeed', but paid particular attention to matters personal to the respondent, pointing out that he had never been in trouble before, that he was remorseful and that he had pleaded guilty on the fast‑track. She noted also that he was employed and there were a number of reports which suggested that he was going through a period of stress which played on his feelings of inadequacy. By inference, it seems that the sentencing judge took the view that it was because of this that he committed the offences.
The sentencing judge was influenced by the reports of the psychologists, noting that Ms Lynn, said:
The psychologist talks about the desensitisation caused by locking yourself in a room with a computer, and this is an increasing problem in our community, but the psychologist thought it was that, rather than any specific attitude toward children, and you are described as a low risk of reoffending and unlikely to be a priority for specialist sex offender treatment.
Although regarding the matter as serious, the sentencing judge thought that, given the circumstances, an immediate term of imprisonment was not required. She imposed a sentence of 12 months' imprisonment to be suspended for the same period and imposed programme and supervision requirements, indicating that a programme requirement was to be worked out with a Community Corrections Officer.
The prosecutor asked the sentencing judge whether the sentences were 12 months' imprisonment suspended for 12 months on each count and her Honour indicated that they were and were to be served concurrently.
Grounds of appeal
The appellant's grounds of appeal (in relation to which leave to appeal was granted on 5 February 2008) are as follows:
Ground One
1.The learned sentencing Judge erred in law in that the sentence imposed:
(a)failed to adequately reflect the serious nature of the offences and thereby failed to provide adequate punishment for the offending conduct, in particular having regard to:
(i)the age disparity between the child he believed he was dealing with (13 years) and the Respondent (24 years);
(ii)the fact that the Respondent recognised that his behaviour was unlawful, yet continued offending;
(iii)the fact that the offences were committed over a period of time, showing it was not an isolated incident; and
(iv)the fact that the Respondent sent the child he believed he was dealing with live footage of himself masturbating and urged the child to call him so he could engage in phone sex.
(b)failed to adequately reflect the need for both personal and general deterrence in circumstances where there is a need to protect children in the community from sexual exploitation.
(c)was manifestly inadequate having regard to the matters set out in l(a) and 1(b), the maximum sentence prescribed by law for the offences and the standards of sentencing customarily observed with respect to the offences.
Ground Two
2.The learned sentencing Judge erred in law in placing undue emphasis on factors personal to the Respondent and insufficient emphasis on the seriousness of the offences as revealed by the objective and admitted facts.
Ground Three
3.The learned sentencing judge erred in law by placing undue weight on the fact that the victim of the offence 'was a police officer posing as a child, and not an actual child, and thereby failing to give proper weight to the purpose of the legislation.
At the hearing of the appeal, counsel for the respondent indicated that ground 2 was not pressed. This was a reflection of the prosecutor's acceptance of the principle expressed in Vagh v The State of Western Australia [2007] WASCA 17, where McLure JA said:
The assertion in ground 1 that the sentencing Judge failed to give any weight to the specified matters is expressly contradicted by the sentencing Judge's remarks. Further, there is no merit in the alternative claim that the sentencing Judge failed to give adequate weight to those matters. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an (express) appealable error if it amounts to a failure to exercise the discretion actually entrusted to the Court: Dinsdale v The Queen (2000) 202 CLR 321 at 330 approving the statements of Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614. That high threshold is not met in this case. However, the appellant's written and oral submissions were in substance that the total effective sentence of 6 years breached the first limb of the totality principle which requires the judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J. The total sentence must bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. Thus, when considering totality the Court takes into account, inter alia, all mitigatory factors including those relied on by the appellant. However, in cases such as drug trafficking where the dominant sentencing considerations include general deterrence and the protection of the community, mitigatory factors have a diminished weight: Woods v The Queen (1994) 14 WAR 341 at 346; Marchesano (2000) 116 A Crim R 237 at 243; The State of Western Australia v Andela [2006] WASCA 77 at [16] - [17]. [76]
See also Keating v The State of Western Australia [2007] WASCA 98 (Steytler P and McLure JA):
A failure to give adequate weight to a relevant factor which failure does not satisfy the very high threshold test for express error (see Vagh v The State of Western Australia [2007] WASCA 17 at [76]) is a particular of the claim that an individual sentence is manifestly excessive or that a total sentence is disproportionately long. The appellant contends that the sentencing Judge failed to give sufficient weight to the opinions of Mr Cicchini and Dr Patchett that the appellant should continue to receive sex offender treatment in prison, the implication being that there remained a possibility of rehabilitation. The opinion of Professor Thomas‑Peter was that engaging the appellant in treatment made it harder to manage him, was an expensive drain on resources, was unlikely to result in reducing his risk of reoffending to a manageable level and carried the prospect of him being released into the community. This is the only matter on which there was a conflict of expert opinion. On our reading of the sentencing Judge's reasons, she preferred the opinions of Mr Cicchini and Dr Patchett on this subject. The sentencing Judge said she would expect that the appellant would go on, as always, being treated in a humane way with the ability for improvement. However, the experts were united in the view that the appellant was at a very high risk of sexual re‑offending which provided a proper foundation for the sentencing Judge's expectation that he would never be released until he was too physically infirm to be a risk to anyone. We would dismiss ground 2.
Ground 3 is expressed in terms of the sentencing judge 'placing undue weight' on certain facts, but at the hearing counsel for the respondent submitted that the ground really meant that the sentencing judge had taken into account an irrelevant consideration, namely, the fact that the victim was a police officer posing as a child and not an actual child.
Ground 1
This ground contends that the sentencing judge erred in imposing a suspended term of imprisonment on each of the counts. It was submitted that such a sentence failed to reflect the need for appropriate deterrence for the offences committed by the respondent and failed also to reflect the significant age difference between himself and the child. That age difference was 11 years at the time of the offences. Further, it is submitted that the respondent, in the full knowledge that what he was doing was unlawful, continued to offend, and over a period of time which encompassed three months. Particular emphasis is also placed upon the fact that the respondent sent live footage of himself masturbating and urged the child to telephone him so that they might engage in phone sex.
In The State of Western Australia v Collier, Steytler P (with whom McLure and Miller JJA agreed) regarded offences of a similar nature (s 204B(3)(b)(i)) to call for sentences of immediate imprisonment. The offences in that case related to a purported victim under the age of 16 years. The maximum penalty for the offences in question was 10 years' imprisonment and Steytler P placed some emphasis upon this when comparing Queensland cases dealing with like offences [41].
Steytler P reviewed the legislative intention in introducing s204B into the Criminal Code:
There is no doubt that the legislature regards offences of this kind as serious. That is apparent merely from the existence of the penalty of 10 years' imprisonment that has been provided for. Hansard (Western Australia, Parliamentary Debates, Legislative Council, 9 November 2005, 6961) reveals that s 204B was introduced as a measure against an increasing trend of paedophiles using the internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending. Conduct of that kind is extremely serious, given the vulnerability of children and the long-term serious consequences which inevitably result from sexual offending against them. It is fundamentally important to deter potential offenders. [24]
Steytler P also made reference to the firming‑up in recent years of sentences involving sexual offences against children:
This court has stressed that there has, in recent years, been a firming up of sentences in cases involving sexual offences against children as the courts have, over the years, gained a better understanding of the long-term effects of that kind of offending upon the children concerned: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; S v The Queen [2004] WASCA 113; Rogers v The Queen [2004] WASCA 147. [26]
The conclusion reached in the particular case was as follows:
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. [43]
In my opinion, notwithstanding the fact that Collier's case dealt with offences which carried a higher maximum penalty than the present offences, no clearer statement could be made than that people who engage in conduct of the nature engaged in by the respondent in this case can expect to be sentenced to immediate imprisonment.
Steytler P repeated what he had said in Collier's case in The State of Western Australia v Freemantle:
This court has relatively recently (days after the sentence was imposed in this case) made it plain, in The State of Western Australia v Collier [2007] WASCA 250 [43], that adult persons who make use of the internet to locate, and make connection with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. The court also said [24] - [25] that the seriousness of offending behaviour of this kind is underlined by the fact that the maximum penalty of 10 years' imprisonment has been set for the offence of using electronic communication with intent to procure a child, or the person believed to be a child, to engage in sexual activity. The penalty applies whether or not the child is actually procured to engage in sexual activity. The court also pointed out that s 204B of the Criminal Code was introduced as a measure against an increasing trend of paedophiles using the internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending. That underlines the need for deterrence. [8]
Freemantle concerned offences against s 204B(3)(b)(i) and s 204B(3)(b)(ii). It was a case in which the maximum penalty applicable to the offender was 10 years' imprisonment, whereas in the present case it is 5 years. Nevertheless, in my opinion, the difference in maxima does not take away from the general principle that persons who engage in Internet communication with intent to procure children to engage in sexual activity or to expose them to indecent matter can generally expect to receive sentences of immediate imprisonment (see also observations of Miller JA in Freemantle at [59]).
In the present case, a reading of the transcript of the Internet chat conversations reveals that the conduct of the respondent was much more serious than the sentencing judge apprehended. I accept the submission of counsel for the appellant that the transcript reveals a gradual escalation in the respondent's behaviour towards the child and a grooming of her. Although the sentencing judge accepted the psychological assessments of the respondent as 'immature', the transcript of the Internet chat conversations reveals him to be anything but immature. I accept the submission of counsel for the appellant that when the conversations are read in their entirety, they reveal 'persistence, single mindedness and an escalation of offending'. In my opinion, the sentencing judge erred in concluding that sentences of suspended imprisonment were appropriate to the case. Only sentences of immediate imprisonment could have been imposed in the present case.
I would therefore uphold ground 1 of the grounds of appeal.
Ground 3
I have already referred to the sentencing judge's observation about the fact that the respondent was talking to a police operative. The sentencing judge accepted that the legislation provided that 'it makes no difference', but nevertheless found as a fact that in the respondent's case, 'there was no victim'.
Counsel for the appellant argued that under s204B(2)(b)(i) of the Criminal Code, an adult using electronic communication with intent to procure a person he believes is under the age of 16 years to engage in sexual activity means that the question of whether there was an actual victim is entirely irrelevant. In other words, it is the belief of the offender which is critical to the commission of the offence. A similar submission was made in relation to s 204B(2)(b)(ii).
Section 204B(8) provides that for the purposes of s 204B(2) or (3), it does not matter that the victim is a fictitious person represented to the accused person as a real person. This is a provision to facilitate proof of the offence.
Nevertheless, in Collier, Steytler P said:
Also, it is plain from the provisions to which I have referred that the legislature regards an offender's conduct as being no less reprehensible if an offender is communicating with a person believed to be a child, although not actually so, than if communicating with a person who is in fact a child. In my respectful opinion, that is not surprising. The first category of behaviour is no less morally reprehensible than the second: R v McGrath [2005] QCA 463; [2006] 2 Qd R 58 [31] (MacKenzie J with whom the other members of the court were in agreement). [25]
I respectfully agree with Steytler P that communication with a person believed to be a child, although not in fact a child, is equally morally reprehensible as communication with a child.
However, that said, it can be envisaged that in case where there was actually communication with a child (s 204B(2)(a)(i) or s 204B(2)(a)(ii)), the offence might be more serious if the child was traumatised by the events that occurred. A greater sentence might then be imposed than in a case under s 204B(2)(b)(i) or s 204B(2)(b)(ii).
In the present case, the sentencing judge does appear to have been in some confusion about the fact that the child was in truth a police operative. Under s 204B(2)(b)(i) and s 204B(2)(b)(ii), the offence was committed if the offender believed the person to be under the age of 16 years. In this case, he did believe the child to be under the age of 16 years, and it was that belief which constituted the offence. It did not matter that 'there was no victim' (the words of the sentencing judge).
Nevertheless, in an offence under s 204B(2)(a)(i) or s 204B(2)(a)(ii), the fact that a person was actually under the age of 16 years and demonstrated to have been traumatised, or otherwise affected by the offender's conduct, would presumably cause a greater sentence to be imposed than under s 204B(2)(b)(i) or s 204B(2)(b)(ii).
To the extent that the sentencing judge appears in this case to have been influenced by the fact that 'there was no victim', I agree with the submission of counsel for the appellant that she was in error. Ground 3 is made out.
Resentencing
The sentencing judge was clearly in error in imposing sentences of imprisonment to be suspended. She was also in error in taking the view that it was a relevant fact that there was no victim. The section under which the respondent was charged predicated his belief in the fact that the person with whom he was communicating was under the age of 16 years and it was equally morally reprehensible for him to be communicating with a police operative, as it was had he been communicating in fact with a girl under the age of 16 years (see Collier [25] (Steytler P)).
Notwithstanding the fact that the maximum sentence applicable the charges in this case was only 5 years and not 10 years, as it was in the cases of Collier and Freemantle, it seems to me that sentences of imprisonment to be served immediately were inevitable. Section 204B(2) is directed at ensuring that persons who utilise the Internet to access people they believe to be children for the purpose of sexual contact must be severely punished (see Collier [24] (Steytler P)). Only sentences of imprisonment to be served immediately can achieve that end. There will, of course, be some cases in which a sentence other than one of immediate imprisonment will be open (see Freemantle [59] (Miller JA)), but this is not one of them.
Taking into account the principles relevant to prosecution appeals against sentence, I consider that the appropriate sentences that should be imposed in this case are 12 months' imprisonment to be served immediately on each count. These sentences reflect the application of the transitional provisions. Each sentence should be served concurrently. The respondent should be eligible for parole. The sentences should date from the day upon which the respondent is taken into custody for the purpose of serving the sentences.
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