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District Court 18 March 2022

R v Fisher

[2022] NSWDC 98

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCING PRODUCING CHILD ABUSE MATERIAL

Citation: R v Fisher [2022] NSWDC 98
Court: District Court of New South Wales
Date: 18 March 2022
Judge: Wilson SC DCJ

Background

The offender, a 55-year-old man from New South Wales, was sentenced following a police sting operation conducted by the Child Exploitation Internet Unit (CEIU). Undercover officers assumed the online identity of a 36-year-old woman with a nine-year-old daughter. The offender initiated contact with the undercover officer on the social networking site ChatIB in late September 2020, and the communications escalated rapidly into graphic sexual content targeting the fictional child.

The offending occurred between 29 September 2020 and 18 November 2020. During that period, the offender engaged in video calls in which he exposed himself, made explicit statements about sexual acts he intended to perform on the fictitious child, and attempted to incite the supposed mother to produce images of the child. He was arrested on 20 November 2020 and held in custody from that date.

The offender pleaded guilty in the Local Court in November 2021, and again at arraignment in the District Court on the day of sentencing. Critically, no actual child was involved at any point: both the "mother" and the "daughter" were entirely fictitious identities created by police.

  • Whether the absence of an actual child victim reduced the objective seriousness of the offending
  • Whether the standard non-parole periods attached to the relevant offences should be applied, given the objective seriousness of the conduct and the offender's subjective circumstances
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) in the community rather than full-time custody

Decision

The District Court applied the principle from R v Fuller [2010] NSWCCA 192, finding that while the presence of a real child victim may aggravate offending of this kind, the absence of one does not operate as a mitigating factor reducing objective seriousness. The offender's conduct was still viewed as grave, warranting strong denunciation and general deterrence.

On the standard non-parole periods (which ranged from six to eight years across the principal offences), Wilson SC DCJ declined to apply them. His Honour found the offending fell below the mid-range of objective seriousness for these offence types, and that the offender's subjective circumstances independently warranted a lesser non-parole period. Imposing the standard non-parole periods would, in his Honour's view, have produced a sentence disproportionate to the overall offending.

A 25% discount was applied to each indicative sentence to reflect the guilty pleas. The charges on the two Form 1 documents (producing child abuse material and inciting another to carry out a sexual act with a child under ten) were taken into account in respect of the principal offences to which they attached, with the court noting they increased the weight given to personal deterrence and retribution.

The submission that an Intensive Corrections Order was available and appropriate was rejected. The District Court found that the nature of the offending meant that serving the sentence in the community would jeopardise community safety, and that the risk of reoffending was best addressed by full-time imprisonment.

Orders Made

  • Sequence 16 (count 1): indicative term of three years, indicative non-parole period of 18 months (taking into account Form 1 sequence 4)
  • Sequence 17 (count 2): indicative term of three years, indicative non-parole period of 18 months (taking into account Form 1 sequence 6)
  • Sequence 14 (count 3): indicative term of 12 months, indicative non-parole period of six months
  • Sequence 18 (count 4): indicative term of two years, indicative non-parole period of 12 months
  • Aggregate sentence: five years imprisonment commencing 20 November 2020 and expiring 19 November 2025
  • Aggregate non-parole period: two and a half years commencing 20 November 2020 and expiring 19 May 2023
  • Intensive Corrections Order declined

Key Takeaways

  • Following R v Fuller, the absence of a real child victim in an online grooming or child exploitation matter does not reduce the objective seriousness of the offending; it simply means there is no additional aggravating factor arising from actual harm to a child.
  • Standard non-parole periods are not applied mechanically. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), they apply to offences at the mid-range of objective seriousness, and a sentencing court may depart from them where the offending falls below that range or where subjective factors warrant it.
  • Form 1 charges (offences not proceeded upon at conviction but admitted by the offender) informed the sentence by increasing the weight given to personal deterrence and community retribution, even though they do not generate separate penalties.
  • An Intensive Corrections Order is not available as a matter of course for serious child sexual exploitation offences. The District Court refused one here on the grounds of community safety and reoffending risk.
  • Offences under ss 66EB(2), 66DA(c), 66DC(d), and 91H(2) of the Crimes Act 1900 (NSW) carry maximum penalties of between seven and 16 years imprisonment, reflecting the seriousness with which parliament treats child sexual exploitation conducted online.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66EB(2), 66DA(c), 91H(2), 66DC(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Fuller [2010] NSWCCA 192
- Gifford v R [2016] 263 A Crim R 373