Director of Public Prosecutions v Fisher (a pseudonym)

[2024] VCC 957

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER FISHER (A Pseudonym)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Ballarat
DATE OF HEARING:	20 June 2024
DATE OF SENTENCE:	24 June 2024
CASE MAY BE CITED AS:	DPP v Fisher (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 957

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Accused	Ms R. Cashmore	Dribbin & Brown Criminal Lawyers

HIS HONOUR: 

1Peter Fisher[1] you have pleaded guilty to one charge of sexual penetration of a child under the age of 16, maximum penalty 15 years' imprisonment.

[1] A pseudonym.

Circumstances of the offence

2The circumstances of the offence were set out in the prosecution opening, which was read in open court on the plea.  In essence the offending occurred on 11 December 2023.  At that stage you were nearly 28 and a half.  You are now about to turn 29.

3The complainant in the matter was a girl who was about a month short of being aged 14. She was in the care the Department and lived in the regional city that you were temporarily residing in.

4In late November 2023 and early December 2023 you were having difficulties in your marriage. You had separated from your wife and moved out of the family home and were living temporarily with a friend.  On 5 December you commenced a social media exchange with the complainant.  After the initial exchange, you continued exchanging messages between each other.  The messages included request from you that she send you indecent photographs or images, which she declined to do.

5In the initial exchange you had been told by her that she was aged 13.  In some of her social media profiles she claimed, however, that she was aged
18 or 19.  You took no action to verify her true age.

6The social media exchanges between the two of you continued, with you continually asking her to 'hang out' with you.

7On Monday, 11 December, you had a day off work and at 8.40 am you sent her a message suggesting that the two of you should meet up.  It was agreed that you would meet at a hair salon in the town.  The complainant left her residence and walked to the meeting point.  You met her in your vehicle and then proceeded to drive to the house where you were temporarily renting a room from a friend.  Upon arrival you took her into the bedroom and asked her whether she wished to have sex.  She replied, 'I guess'.  You then proceeded to kiss her, rubbed her vagina over the clothing, then removed her pants, proceeded to digitally penetrate her, then removed your own pants and underpants and introduced your penis into her vagina for about five minutes until you ejaculated.  Immediately following the intercourse you drove her back to the rendezvous location.

8Upon her return to her house where she lived, she disclosed the event to a friend of hers over social media and a video call.  The friend checked your social media profile and the complainant confirmed that it was you.

9You were contacted by the friend who the complainant had first complained to by social media.  You acknowledged that the offending had occurred and you acknowledged that you had made a mistake.  You admitted that you knew the complainant's age but not that she was in residential care.  Later that day the complainant disclosed to one of her carers the earlier event.  Again, your social media profile was identified and confirmed and subsequently the matter was referred to the police.  The police became involved later that day and the complainant was the subject of a VARE interview, wherein she confirmed the details of the offending and underwent the following day a forensic medical examination.  Again she confirmed the offending to the examining doctor.

10On 11 December, the day of the event, in social media communications with your wife you had admitted to her that you are in trouble and that:

'So I fucked up, I slept with someone that was apparently 20.  Turns out she is very much not and lives in resi.  I believe it's been reported.  In fact I'll leave when you get home.'

11You were arrested on 13 December.  You undertook an extensive record of interview where you admitted that you had been told by the complainant that she was 13 when she first contacted you.  Further, you did not take any steps to confirm her age but that you did have doubts about her age.  You stated that you had been requested by her transfer $20 to an account the day before so she could get a taxi from her dad's house to her mother's house.  You denied that you asked for any indecent photographs.

12You also said:

'I neglected to not only look out for myself, to look out for this young lady as well, because clearly she is a vulnerable young person, especially being in the care of child protection in a resi unit, so I should have done more.'

Subsequent events

13You were charged on 13 December 2023.

14There was a filing hearing on 14 December 2023 and bail was refused.  At a committal mention on 6 March 2024 the matter was resolved by a plea of guilty to the County Court.

Seriousness of the offence and moral culpability

15This offence covers a wide range of criminality.  An important indicium of seriousness of the offence is the age of the complainant and the age gap between the complainant and the offender.  Here the complainant in this matter was just shy of aged 14 and you were 28 and a half.  This is a very significant gap and goes to the seriousness of the offending.  You were fully aware of her age.

16At the time of the offending you were a married man, you had two children from an earlier relationship not in your custody, two children from your current relationship and one recently conceived.  You therefore cannot invoke considerations of youth or inexperience.

17Next, this was an unprotected act of sexual intercourse with ejaculation and prior uncharged digital penetration, which exposed the complainant to a risk of pregnancy and a sexually transmitted disease.

18Next, there was an element of grooming and premeditation in that in the short period between when you first commenced communication with the complainant over social media you sought to escalate the relationship by seeking from her sexual images.  She declined to provide them to you.  Further, you repeatedly asked her to hang out with you, inviting her over to your house or arranging to meet in a park.  You continued the communication until ultimately on the morning of the offence you communicated with her and arranged to meet and then the offence occurred.  It was the first time the two of you had met.  The complainant indicated in her VARE that she was bored that morning and thus agreed to your request.

19In the record of interview you said that at that time you were in a very poor headspace, as you had been arguing the previous Sunday with your wife.  You were not thinking clearly and after the event you instantly regretted it.  You stated:

'It was purely out of spite just because of what was going on at home and how that was affecting myself.'

20No victim impact statement has been tendered.

21Notwithstanding this, there is a presumption of harm involving premature sexual offending and conduct involving children.  The complainant was in State care at the time.  Although you were not aware of that, on your own admission you took no action to verify her age even though you had been placed on notice by her in the original exchange that she was aged 13.  Given your age at the time, you must bear high moral culpability for this offending.

Prior convictions

22You have admitted a relatively limited prior criminal history that does not involve sexual offences.  You were first before the Magistrates' Court in September 2014 when on charges of criminal damage, careless driving and learner driving without an experienced driver; you were the subject of an adjourned undertaking.  You were back before the Magistrates' Court in March 2015 when you were sentenced to a suspended sentence of three months' imprisonment for wilfully damaging property, contravening a family violence intervention order and unlawful assault.

23You were next before the court on 14 July 2016 on charges of stalking, two charges of unlawfully on property, contravening a conduct condition of bail, contravening a family violence intervention order, unlawful assault and using a carriage service to harass.  You were sentenced to 38 days' imprisonment, being time served, and a 12-months community corrections order.

24Your final appearance was on 16 December 2019 when on charges of reckless conduct endangering serious injury and failing to wear a seatbelt you were sentenced to an aggregate fine of $3,000 and your licence was cancelled and you were disqualified from driving for 20 months.

25As your counsel put on the plea, you successfully completed the prior sentencing dispositions and were involved in a payment plan to pay the final fine.

Personal circumstances

26As noted, you are about to turn 29.  Your personal circumstances are set out in your plea submission and also in the report from a psychologist.  You come from a very difficult and deprived upbringing.  You are of Aboriginal descent.  Your parents separated before you were born.  You were taken out of your parents' care at age three months and were in and out of your mother's care until age six, when your grandparents obtained sole custody of you.  From an early age Child Protection have been involved and you have been the subject of physical and sexual abuse and neglect by both your mother and your stepfather.  You have not had contact with your father for eight years, nor your mother for 13 years.  Your maternal grandparents have been most involved in your upbringing.  You have no biological siblings and a number of half siblings and step siblings, with whom you have no contact.

27You lived with your grandparents on and off until the age of 21.  Prior to this you resided periodically with friends in the local area but denied that you had ever been homeless. At age 21 you commenced residing with a partner in a rental property and then you purchased a home in a small town.

28I turn now to your educational background. You attended a local primary school to Grade 6 and struggled academically and were also the subject of bullying.  You completed Years 7 to 10 at the local college and left at that point, as your ex-partner had fallen pregnant.  You then completed Year 11 under VCAL.  At age 18 you began working in casual roles and found long-term employment in the automotive wrecking industry.  You also worked in a cabinet factory for 18 months, then lost your licence and worked in a local agricultural farm machinery business and also worked with your father-in-law in a tyre franchise in another regional town.  You were working on a farm shortly prior to this offending.  At that stage you were seeking recognition for your prior learning as a heavy diesel mechanic.  This endeavour is incomplete.  You had received Youth Allowance between the ages of 16 and 21 and Jobseeker during COVID.  You are currently working in a factory whilst on remand.  You have not completed any courses on remand.

29You have an extensive relationship history.  You were involved in a relationship when you are aged 18 or 19 that led to the birth of a son who is now aged 11.  You have fortnightly visits to him.  In 2013 you had another stormy relationship with another woman leading to a further son, now aged nine.  You were sentenced to 36 days' imprisonment for breaching an FVIO in relation to that partner.  You had been having supervised visits with your son prior to your remand.

30In December 2016 you entered a relationship with another woman and were married in 2018.  She has two dependents from a previous relationship which she coparents and you share with her three children aged three, 1 and a half and another child born last month.

Matters in mitigation

31Your counsel relied on a number of matters in mitigation.  First, you have pleaded guilty.  The plea of guilty was early and you are entitled to the full benefit for that.  You have facilitated the course of justice and obviated the need for questioning of the complainant and witnesses at a trial.

32I am also satisfied that you are remorseful.  You have admitted the wrongfulness of your conduct right at the very beginning when you were questioned by the police and have not sought to evade responsibility.

33In evidence was a letter from a psychologist, Ms Mattia, who you have been consulting in custody.  You have undertaken seven treatment sessions and she has found that you engage meaningfully.

34Your counsel relied heavily on a psychological report from Ms Fakhr.  This extensive report canvases your personal background and identifies a number of diagnoses that you currently present with and arguably were present at the time of the offending.

35The report also canvases your difficult childhood history and concludes that you were suffering from complex PTSD, as well as an adjustment disorder with mixed anxiety and depressed mood, at the time of the offending.  She is of the opinion that you also have traits of borderline personality disorder.

36The writer also notes that you had ceased taking your medication for depression.  You had been medicated for depression at some time prior to the offending and it is likely that you were suffering from a major depressive disorder at the time of the offending and currently.  In particular the writer outlines her opinions at paragraphs 108 to 112 of her report.  I include the whole of them by reference, but she indicates that:

'His psychopathology has undermined his ability to think clearly, respond calmly and exercise appropriate judgement, thereby contributing to his poor behavioural outcomes.  Further, negative affective states can alter cognition and behaviour by impairing impulse control and decision-making and inhibiting an individual's ability to consider alternative responses.'

37She notes that your mental health had been managed by antidepressant medication, which you ceased about a month prior to the offending.  She notes:

'If this medication were to suddenly cease, this would cause a relapse of depressive and anxious symptoms, as has been the case for Mr Fisher.  This further caused manic symptoms including impulse control issues, racing thoughts and flight of ideas, reckless behaviour, and impairment in his ability to consider his behaviour to be irrational, poor decision-making, and poor insight.'

38She goes on to identify the symptoms of abrupt medical withdrawal.  She notes:

'When an antidepressant is removed or reduced, the brain becomes overwhelmed with serotonin and noradrenaline and there are limited skills available to manage emotions, thoughts or behaviours.'

39She then goes on to say that you were effectively medicating with alcohol and she said:

'This can produce problematic psychological or behavioural changes such as impaired judgement, unusual mood changes, inappropriate behaviour and aggression such as in the current offending.  Substance use is also known to compromise higher executive functions, such as self‑control, self-inhibition, moral reasoning and decision-making.'

40She then opines:

'At the time of the offending, Mr Fisher's capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of his conduct was severely impaired.  The potential for his mental health to continue to deteriorate in a custodial environment remains a concern, as he has had limited treatment or interaction with mental health professionals in the community.  [She then notes that your] risk of general recidivism [is] low to moderate, with his risk increased by psychosocial factors and largely untreated mental health.  [She says that you] require a low to moderate level of intervention to reduce [your] risk of reoffending.'

41She concludes:

'[Your] capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of your conduct was severely impaired.'

42She indicates that you have a low-moderate risk of reoffending and you require access to a sex offender programs as well as multidisciplinary treatment of your PTSD.

43On the plea your counsel tendered a heart-rending letter from your grandmother, who had been awarded permanent care of you from age five and a half.

44She sets out the neglect that you suffered at the hands of your biological parents and the battles that she had in discharging her responsibilities consequent on the failures of your natural parents.  Difficulties continued during access visits until finally, at aged around 11 and a half, your natural parents no longer had any contact with you.  She concludes her letter with the following:

'Peter experienced horrific abuse and neglect while he was in the care of [his parents].  Peter's upbringing was turbulent with the back and forth from my care and his biological parents' care and Child Protection involvement.  Peter received counselling as a child; however, the counsellor advised me that Peter did not have the capacity to deal with the abuse he had faced at the time.

45It does not appear that the psychologist who examined you had access to this material, but there is a cogency in the letter from your grandmother that supports the conclusions of the psychologist that you were the subject of a very blighted and dysfunctional childhood.  Further, this has had a long-term impact on your psychological functioning.

46The psychological difficulties that you have faced on a day-to-day basis are also confirmed in a letter from your wife tendered in evidence.  She indicated that shortly prior to this offending you had disengaged from her and had been unable to handle the everyday pressures of working, finances, parenting and marriage.  You then left the family home, resided in temporary accommodation and began using alcohol as medication.  You and her have had discussions subsequently and she is of the view that you need further assistance to get your life back on track.

47In submissions your counsel relied on the principles of Bugmy v R [2013] HCA 37 that she submitted should be invoked in the sentencing exercise by the court. Further, your counsel called for a reduction in your moral culpability for the offending due to your blighted background. Your counsel also sought to rely on the principles of R v Verdins [2007] VSCA 62 for a reduction in moral culpability and lesser weight to general deterrence.

48The learned prosecutor accepted that there should be some reduction in moral culpability by reason of the principles of Bugmy but noted that it should be limited, due to your failure to continue your medication regime.

49Having heard the competing arguments, I am satisfied that there should be a reduction in your moral culpability.  It is clear from the history outlined by your grandmother in her letter, and the report of Ms Fakhr, that your dysfunctional upbringing has a continuing impact on you, notwithstanding that you lapsed from taking antidepressant medication shortly prior to the offending.  I am prepared to give significant allowance for your difficult upbringing in sentencing.  Further, this calls for less considerations of general deterrence.

50Another matter that I have taken into account is the impact of a sentence of imprisonment upon you.  It is clear from the report that you require considerable psychological and psychiatric treatment to address your long-standing difficulties.

51Periods in custody will exacerbate your condition and make prison more burdensome, notwithstanding that you may be able to access some treatment in a custodial environment.

52Another matter that I take into account in your favour is the burden on you of separation from your wife and three young children, as well is the older children with whom you had been having continuing contact.  This makes imprisonment more burdensome for you than a person who does not have those family responsibilities.

53I have also taken into account your period on remand, which provides less opportunities for programs, and you have the uncertainty until the matter you are the subject of a sentence.

Sentencing submissions

54Your counsel submitted that all sentencing objectives could be met by a combination sentence.  Your counsel urged the court to have you assessed for a CCO.

55The prosecution submitted that the seriousness of the offending here required a head sentence with a non‑parole period.

56Having considered the matter, I regard a combination sentence as outside of the range of applicable sentences here.

57As noted earlier, this was serious offending notwithstanding that a VIS has not been filed on behalf of the complainant.

58The prosecution submitted that considerations of general deterrence, denunciation and protection were important considerations here.  The complainant was in the care of the State.  Although you were not aware of that, the sentence of the court must denounce your conduct.

Comparable cases

59The prosecution referred to the cases of DPP v Spottiswood [2021] VSCA 146 and Roberts v R [2022] VSCA 92 as being of some assistance in providing evidence of current sentencing practices.

60As this offence covers a vast variety of conduct, and bearing in mind that any particular sentence is not a precedent, it is very difficult to identify current sentencing practices.  What is required, however, is consistency of approach.

61The learned prosecutor submitted that this offending should be seen as in the mid-range of seriousness with high moral culpability.  I agree.

62Your counsel also submitted the sentencing statistics, which indicate that there has been some use of combination sentences for this offending.  Notwithstanding this, as I have indicated, I regard the seriousness here as being outside the range of a combination sentence.

Purposes of sentencing

63The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

64In sentencing you for this matter, among other matters, I must have regard to the maximum penalty and also the standard sentence of six years.

65The standard sentence is for a theoretical offence in the middle range of seriousness, having regard only to objective factors and not factors personal to the accused.  It has been described by the court of appeal in McPherson v R [2021] VSCA 51 as an intangible concept, as it is very difficult to identify a notional mid-range given the wide range of sexual misconduct captured by the offence to which you have pleaded guilty. Regard must, however, be had to the standard sentence as a factor in the application of the instinctive synthesis, along with the maximum penalty and the circumstances of the offence and current sentencing practices.

66In sentencing for offences against children, considerations of general deterrence, denunciation and protection of the community loom large.

67As I have indicated, I will allow a moderation in consideration of general deterrence and your moral culpability, having regard to your blighted upbringing and psychosocial condition.  The sentence of the court, however, must still send a signal that children under the age of 16 are not to be the subject of sexual activity with adults and that those found guilty of such conduct can expect heavy penalties regardless of their personal circumstances.

68Having regard to the competing submissions and the purposes of sentencing, including the standard sentence of six months, the maximum penalty and the circumstances of the offence, and your pleas of guilty and the other matters I have canvassed in relation to your personal circumstances, I sentence you as follows.  Could you please stand.

Sentence

69On the charge of sexual penetration of a child under the age of 16 you are sentenced to four years' imprisonment.  I order that you serve a minimum term of two years and three months before being eligible for parole.

70The sentence that I have just imposed is below the standard sentence.  I have arrived at the sentence after considering the objective seriousness of the offence, your personal circumstances, including your mental health conditions and background, your criminal record, your prospects of rehabilitation, your plea of guilty and the impact on you of imprisonment.  I regard your prospects of rehabilitation as good, particularly if you are able to access appropriate treatment in custody and upon release.

71The non-parole period that I have ordered is below the 60 per cent specified under s11A(4) of the Sentencing Act.  For the same reasons that I have imposed a sentence below the standard sentence, I have formed the view that it is in the interests of justice and in particular to encourage you to address your mental health issues arising out of your childhood that there be a longer period during which you will be eligible to serve your sentence in the community.

72Pursuant to s6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.

73I declare that you have served 194 days' presentence detention.

74As a consequence of the conviction, pursuant to the Sex Offenders Registration Act, you will be required to be placed on the sex offender register for a period of 15 years.  The relevant paperwork will be forwarded to you in prison and you will be required to acknowledge that you have received that documentation.

75I will ensure that the medical reports that have been tendered on the plea be provided to the relevant authorities. 

76Any other matters from your point of view, Ms Cashmore?

77MS CASHMORE:  Yes, Your Honour.  I understand that my learned friend had a forfeiture application that may not have been - I'm unsure if it's been filed.  Perhaps he could confirm.

78MR PETRIC:  Yes, there'll be a forfeiture of the offender's phone.

79HIS HONOUR:  Right.  Any objection to that?

80MS CASHMORE:  Yes, Your Honour.  Mr Fisher has sought that his phone not be forfeited.  He's got photos of his children on it and I understand my learned friend's position and that it was related to the offending, but my instructions are to object to the forfeiture of his phone.

81HIS HONOUR:  Mr Petric, is there any way that at least the photos could be captured before the phone is forfeited?

82MR PETRIC:  That would have to be a conversation with the informant, Your Honour.

83HIS HONOUR:  Yes.  I think it's been addressed in previous matters.  I mean a phone now carries a lot of stuff.

84MR PETRIC:  I appreciate that. I'm instructed the order allows for analysis of the phone prior to disposal.

85HIS HONOUR:  Right.

86MR PETRIC:  So perhaps that could allow ‑ ‑ ‑

87HIS HONOUR:  Is that addressed in the wording in the order?  Perhaps if you could - I'll make the relevant order, but if you could just discuss with Ms Cashmore appropriate wording of the forfeiture.

88MR PETRIC:  Certainly.

89HIS HONOUR:  Yes, thank you.  All right.  Well, I'll make the forfeiture order with the appropriate variation in chambers when it's sent to me.  I want to thank all counsel for their assistance in this matter and for the other people who have been on the link in the course of the plea. 

90Is that the end of the circuit matters, Mr Petric?

91MR PETRIC:  It is, Your Honour, yes, insofar as my involvement.

92HIS HONOUR:  Right.  Well, I want to take this public opportunity to thank the circuit prosecutor Mr Petric and his instructing solicitor for what's been a very productive three weeks.  Adjourn the court until 9.30 tomorrow morning.

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