Director of Public Prosecutions v Fisken

[2019] VCC 1572

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON FISKEN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	11 September 2019
DATE OF SENTENCE:	20 September 2019
CASE MAY BE CITED AS:	DPP v Fisken
MEDIUM NEUTRAL CITATION:	[2019] VCC 1572

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:Dalgleish [2016] VSCA 148; Soo [2014] VSCA 304; Garside [2016]
VSCA 74; R v Peter Brown [2018] VSC 742; Connell [1996] 1 VR 436

Sentence:10 years imprisonment; non-parole period of 6 years. s 6AAA: 14
years imprisonment with a non-parole period of 9 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr D. Swan	Victoria Legal Aid

HIS HONOUR: 

1Cameron Fisken[1], you have pleaded guilty to three charges of sexual penetration of a stepchild, one charge of sexual assault of a child under 16 and one charge of possession of child abuse material. 

[1] A pseudonym.

2The child you molested is your stepdaughter, Ava[2].  Your offending occurred between 21 and 26 October 2018.  She was then aged seven years. 

[2] A pseudonym.

3She lived with her mother, who is your wife, your daughter, Rachel,[3] who was then two years old, and you at Surf Beach.

[3] A pseudonym.

4You had known Ava since she was about 12 months old.  She knew you as her father.

5As Ava told her mother, and later, police, and you acknowledge, on 21 October 2018 while you were at home with Ava and Rachel, in the spa bath, you exposed your penis to Ava and showed her photographs of penises on your mobile phone.  After you got out of the spa bath you were in a bedroom with Ava.  There, you showed her a video of a man ejaculating into a woman's mouth.  You told her the fluid was saliva, that people liked having saliva in their mouth and they eat it.  You then put your penis in her mouth.  You stopped when your wife walked into the room, and this conduct constitutes one of the two occasions which are the representative conduct charged in Charge 1.

6Around midday, you sent your wife a text message saying that Ava wanted a day at home without her.  Your wife arrived home around lunchtime.  To her, Ava appeared different. You wife asked Ava what she had done all day and Ava said you had been tickling her, patting her lower tummy area.  Your wife was suspicious there was something wrong.

7On an occasion between 21 and 26 October 2018, when Ava was lying on her bed, you put your tongue and your fingers between the lips of her vagina and that conduct represents the conduct in Charges 2 and 3.

8On 26 October 2018, in the morning, you went into Ava's bedroom. You woke her, exposed your penis, and put it in her mouth, and this is the second occasion which is part of the representative charge, Charge 1.  You also rubbed your penis on the outside of her vagina.  That is the conduct alleged in Charge 4.  You asked her whether it felt nice and afterwards you gave her a $10 note.

9Your wife noticed you had been in Ava's room, whispering to her.  She also noticed, a short time later, when you were in the shower, you had an erection.

10After you went to work, when your wife told Ava she was looking for some money for an outing, Ava went to her room and returned with the $10 note.  She said that she had got it from you and that you had told her not to tell because it would upset her mother.  She said the secret was “something yucky” and when her mother pressed her Ava told her what you had done.

11Your wife telephoned you and confronted you with what Ava had said.  You denied it. 

12When you arrived home, your wife again confronted you with what Ava had told her.  You said you had been in the bath with her and that she had pulled your pants down.  You said that you had shown her a video and put your penis into her mouth to explain oral sex to her.  You said it went too far.

13The next day, on 27 October 2018, your wife reported you to police.  Early, on 28 October, police arrested and interviewed you.  You admitted your sexual misconduct with Ava. 

14You said it started on 21 October when your wife was at work.  You said that Ava had pulled your shorts down, she was curious, so you explained what a penis was.  You said it started out as an education thing and you showed her the video of a woman giving a man oral sex.  You said she asked you if she could try it and you put your penis in her mouth. You said on 26 October when you were in her bedroom, she asked you to rub your penis against her vagina to see how it felt, and you said you did, “rubbing on the edges”.  You then went and had a shower and, after that, gave her $10 for being a good girl during the week.

15You told police that “something was wrong in my head. I could not shut it off… I lost control”.  You said “I wasn’t normal. I felt sick”. 

16You said when your wife challenged you, you “shut down” because you were scared and did not know what to do.  You said that Ava did not know that you were not her father and you loved her like she was your own.  You described both girls, Ava and Rachel, as “absolute angels”. You said you had never had “this feeling” before, and you “didn’t want any of this” and you realised, by your offending, you had lost everything.

17Police seized your phone.  On it there were 595 images of child abuse material, which is the conduct constituting your possession of it on 27 October 2018, Charge 5. 

18The videos and the images have been categorised using the child exploitation tracking system Australia Victim Image Library Scale as follows:

·Category 1, no sexual activity, 178;

·Category 2, solo and sex acts between a child, 76 images;

·Category 3, adult non-penetrative, 20 images;

·Category 4, child-adult penetrative, 40 images;

·Category 5, sadism, bestiality, and child abuse, 281

There were also a larger number of adult pornography images on your phone. 

19After your interview you were charged and remanded in custody.  You spent two days in custody before you were admitted to bail. 

20Your wife's victim impact statement was read to the court.  Its contents are understandably harrowing.  You have devastated the people closest to you.  Your wife and your girls had to leave their home because Ava would not sleep in her bed.  They moved to your wife's parents' home some three hours away.  They have lost the support of the community where they lived for six years and Ava has lost her friends.  Your wife has had to seek a mental health plan to get counselling.

21In addition to the emotional and psychological harm they have also suffered financial hardship because you were the family provider and, because they have had to leave where they lived, your wife has lost her business. 

22Ava had daily breakdowns when she went back to school, and has become angry and unable to regulate her emotions as she tries to understand what has happened to her.  She continues to struggle to understand the offending was not her fault.  Your wife described her as “a shell of the child she once was”.

23You made an offer to plead guilty to these offences on 21 February 2019, at a committal mention, and entered your plea of guilty at a further committal mention on 4 April 2019. 

24You have no criminal history. You are aged 29 years. 

25Your personal circumstances are set out in a report, dated 5 June 2019, of Carla Lechner, clinical psychologist.  You are the youngest of three children.  You grew up in a supportive family and have always had a good relationship with your parents and sisters.  You lived in Langwarrin and attended local schools.  When you were six years old you were diagnosed with ADHD and treated with stimulant medication.  Despite your difficulties, you completed Year 12 and then you completed a motor mechanic apprenticeship. 

26You have been supported in court by your parents, your older sister, Amanda, and your current partner.  I have read the letters that each of them wrote to the court.

27While you have been on bail you have lived with your sister, who is an accountant.  Your former employer sacked you when you were charged with these offences. Since your release on bail you have obtained and maintained employment as a window fabricator and a driver.  Currently you work for casually for three different employers.  Your sister observed you to be unhappy, tired, and stressed for about 12 months prior to your offending.  She wrote you worked long hours for low pay for your on-call work with RACV Total Care on Phillip Island and there were growing pressures in your relationship with your wife, as you felt she undervalued you.  Your sister wrote you are deeply remorseful for what you have done.

28Your parents wrote that they are very sad to be in court in these circumstances but they continue to support and love you.  You worked very hard to overcome your attention deficit disorder and they were very proud of you when you completed Year 12 and, subsequently, your motor mechanic apprenticeship.  According to them, you well understand that you have “wronged” and are “prepared to pay the penalty”.  They describe you as “deeply remorseful… and… committed to a recovery program and making restitution”.  You have sought assistance from a counsellor and from family members to help you address your problems.

29You met your current partner about eight months ago.  Within a fortnight of you meeting, you told her about your offending, how disgusted you were with yourself and, every day, you wish you could take back what you had done.  She described you as “completely ashamed of (your) actions”.  She has seen the recording of your police interview and knows the details of your offending.  She herself was a victim of child abuse.  She has stuck with you and is confident, when you are released from prison you will “continue to head in a positive direction with the continued support of (your) family and friends, all (the) while living with the regret of (your) past actions”.

30You reported to Ms Lechner a “lucky” family life and good relationship with your parents and sisters, which their references and support in court have confirmed. You denied any use of illicit drugs and describe moderate alcohol consumption. 

31When Ms Lechner asked you about your offending behaviour you claimed not to remember the details.  She suspects “rather than having forgotten, (you are) deeply ashamed of (your) actions and (do) not want to remember”. 

32She assessed your risk of sexual reoffending using the recognised Static-99 and SVR-20 assessment tools.  Taking into account both measures, Ms Lechner assessed you as a “low” risk of further sexual offending.  You did not meet any of the risk factors across two tests, apart from:

·    minimising your offending; and

·    having committed multiple offence types, that is digital and oral penetration.

Her qualification to that assessment is her uncertainty as to whether or not you have a sexual deviancy. 

33You said you had a normal relationship with your wife, although it deteriorated after the birth of your daughter, who was sleeping with you both.  You denied a sexual interest in children.  As Ms Lechner said, “this is difficult to believe in the context of your (pedophilic) offending and… possession of child pornography”.  She said you need to learn to manage your sexual impulses and to be cautious about where “curiosity” might lead you.  She encouraged you to “work on (your) memory and endeavour to be open about (your) offending so that (you) can better understand (your) actions and, more importantly, prevent… repeat behaviour.”

34You accept the inevitability of imprisonment where, in Ms Lechner's opinion, you will benefit from treatment that “includes management of any deviant sexual interest that (you) may harbour, management of inhibition of inappropriate sexual orders and impulses in a much better understanding of the impact of (your) actions on your stepdaughter.”

35She said it is not clear whether you are a pedophile or “better described as a ‘regressed child molester’; (that is, a) child sex offender (who) has low self-esteem and poor coping skills, and… (in the context of precipitating stress, turns to a child, who is available,) as a sexual substitute for the preferred peer sex partner”.

36In written and oral submissions, Mr Swan, who appeared on your behalf, relied on the following factors in mitigation of penalty:

·    your lack of any criminal record;

·     your early guilty plea for its utilitarian value, acceptance of responsibility, and remorse;

·    your further remorse, evidenced by your cooperation with police when you were arrested and your expressions of regret to police, family, and your current partner, as well as Ms Lechner;

·    your low risk of reoffending and favourable prospects of rehabilitation; and

·    the extra-curial punishment of the loss of your relationship with your wife, daughter, and stepchild, and the consequent estrangement that your parents will have from them as well.

37Ms Guesdon, who appeared for the prosecution, submitted while you made an early guilty plea you have not fully accepted responsibility for your actions.  While, to police, you admitted your sexual misconduct, you attempted to minimise your responsibility by suggesting you never forced Ava to commit any sexual acts, you never hurt her, and she asked if she could suck your penis and tickle your doodle. By contrast, Ava told police you showed her the video of oral sex and you made her put her mouth on your doodle.

38She submitted that your previous good character is of less weight in child molestation cases and she submitted your prospects of rehabilitation are uncertain, given Ms Lechner's unclear diagnosis as to whether you have a pedophile disorder or were a regressive child molester, the doubt attendant to your claim to have no sexual interest in children, and your failure to take full responsibility for your actions.  She also submitted that protection of the community, in particular children, and general deterrence are primary sentencing considerations.

39As the Court of Appeal explained in the case of Dalgleish [2016] VSCA 148, an act of sexual penetration of a child is, by its very nature, an act of significant violence and there is a presumption of significant harm to the victim.

40Offending by a parent is inherently very serious as it involves an extreme invasion of a victim's person, exploitation of a vulnerable child, violation of societal norms, long-term and severe victim impact, serious breaches of trust reposed in the offender by the child and the spouse/partner, and an undermining of the familial roots of society.

41Factors relevant to assessing the objective gravity of the offending are the nature and extent of the offending conduct, its frequency and duration, the circumstances in which it occurs, the culpability of the offender and the damage to the victim and her family.

Assessment of objective gravity

42Ms Guesdon submitted, taking into account: the nature of your conduct; that you showed Ava the pornographic video; and that you attempted to conceal your offending by telling her not to tell her mother and giving her a $10 note. In that regard you told police you gave her that money because she had been good during the week - she believed you gave it to her for putting her mouth on your penis.  I am inclined to accept her explanation as more likely but I can make no further finding on that point.

43Also taking into account that you took 13 photos of Ava in the spa bath, two of which were with her sister, some of which were with Ava's body without her head, including  close-up images of her vagina, and a photo in the master bedroom showing a child's hand touching an erect penis. 

44Also taking into account that your offending only ended when she told her mother, who reported you to police - whether or not that was the cause or coincidental I am unable to decide - and, while brief, your offending was not a single occurrence. 

45Taking all those factors into account Ms Guesdon submitted the objective seriousness of your offending on Charges 1, 2, 3 and 4 is mid-range.

46She submitted while the short duration of your misconduct might fit the description of low end, Ava's vulnerability as a seven-year-old takes it beyond such a label. 

47Mr Swan submitted that it was low to mid-range offending having regard to the absence of aggravating features such as physical harm, violent or threatening behaviour, and the small number of episodes, three, perpetrated over a short period of time, six days.

48There are enormous differences between the types and periods of conduct that fall within this category of offending (see Soo [2014] VSCA 304, per Santamaria JA (Weinberg and Whelan JJA agreeing), at [35]).

49I accept the short duration of your offending puts it at the lower end of objective seriousness but I also accept:

·telling Ava not to tell her mother about what happened;

·showing her the pornographic video; and

·taking photographs of her, naked;

increased the objective seriousness of this offending.

50While it is always difficult to grapple with terms such as low, mid and high end, I accept your offending falls at the low – mid level of offending of this type. In reaching that conclusion, as s.5A(3) of the Sentencing Act requires me to do, I have had regard only to the objective features of your offending and have disregarded your personal circumstances.

Principles governing sentencing for child pornography offences

51Possession of child abuse material is also grave offending.  In Garside [2016] VSCA 74 at [19] – [25] the Court of Appeal observed it is not a victimless crime as it creates a market for the continued corruption and exploitation of children and children are sexuRachel abused in order to supply the market. As the Court stated, relevant to the assessment of the objective seriousness of the offending are:

·    the nature and content of the material;

·    the number of images possessed;

·    whether they were possessed for the purpose of sale or further distribution;

·    whether the offender will profit from the offence;

·    where the possession of the child pornography was for personal use, the number of children depicted and thereby victimized; and

·    the length of time for which the material was possessed.

52I have not viewed any of the child abuse images. However, taking into account the number of images, significant but not large, their description, that you had them only for personal use, and you are to be sentenced for possession of them on a single date, I accept the prosecution's characterisation of low end seriousness for your offending on this charge.

Additional conclusions

53I accept:

·    you are genuinely and profoundly remorseful for your offending, and, when you were asked about your offending behaviour, your reluctance to accept full responsibility, to police, and your inability to remember with Ms Lechner, was due to your deep shame for your actions;

·    you were having difficulties at work and in your relationship with your wife when you offended, and while this could never be any excuse, I find it is more likely you offended because of the combination of opportunity and stress; and

·    having regard to all I have read and heard about your offending and your personal circumstances, and notwithstanding the limitations Ms Lechner acknowledged, I accept her ultimate opinion you are a relatively low risk of further sexual offending and that your prospects of rehabilitation are favourable;

and I take those matters into account in moderating the sentences which I would otherwise impose.

54I must also take into account, in accordance with established legal principles, general deterrence and protection of the community are primary sentencing considerations for sexual offending involving child abuse, and limited weight is to be given to your prior good character.

55A number of statutory sentencing principles are applicable in your case.  The maximum penalty for Charges 1, 2 and 3, sexual penetration of a stepchild, is 25 years’ imprisonment.  The legislature has prescribed a standard sentence of 10 years.  The court must make a mandatory order for imprisonment (s 5(2G) of the Sentencing Act).

56The maximum penalty for the charge of sexual assault of a child under the age of 16 years, Charge 4, is 10 years' imprisonment. Parliament has prescribed a standard sentence of four years for that offence. 

57The maximum penalty for possession of child abuse material is 10 years' imprisonment. 

Standard sentences

58The standard sentence represents the sentence for an offence in the middle of the range of objective seriousness.  It does not have determinative significance in the sentencing exercise. It is a legislated guidepost.

59Having regard to the statutory provisions in the judgment of Champion J in R v Peter Brown [2018] VSC 742, I have taken the applicable standard sentences as one of the sentencing factors relevant to the “intuitive synthesis” and have used them, with the maximum penalties prescribed, as “legislative guideposts”. Considerations of factors personal to you and your offending remain of equal importance in the sentencing exercise.

60The sentence I will impose in respect of each charge of sexual penetration of a stepchild and sexual assault of a child under 16 is lower than the applicable standard sentence.  I have identified and considered all relevant factors in assessing sentence, including the standard sentence, the objective seriousness of your offending, and the matters available to you in mitigation to determine the appropriate sentences in your case.

Serious sexual offender provisions

61Upon conviction and imprisonment on Charges 1 and  2 you fall to be sentenced as a serious sexual offender on Charges 3, 4 and 5. 

62I must regard the protection of the community as the principal purpose for which the sentence on Charges 3, 4 and 5 is to be imposed (s 6D(a) of the Sentencing Act) and may impose a sentence longer than that which is proportionate to the gravity of the offence. The prosecution does not seek a disproportionate sentence in your case. 

63I do not consider you a danger to the community.  I am satisfied, in the circumstances of your case, the principal purpose of protection can be achieved without the imposition of a disproportionate sentences on Charges 3, 4 and 5 (Connell [1996] 1 VR 436).

64Section 6E of the Sentencing Act prescribes that sentences imposed on 3, 4 and 5 are to be served cumulatively on other sentences imposed unless I otherwise direct.  In that behalf, I must have regard to the principles of totality and proportionality to avoid the imposition of a crushing sentence upon you and to ensure the overall sentence is not excessive relative to your total criminality. 

65Please stand, Mr Fisken.  By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you.

66On Charge 1, sexual penetration of a stepchild, you are convicted and sentenced to eight years and six months' imprisonment.

67On Charge 2, sexual penetration of a stepchild, you are convicted and sentenced to eight years' imprisonment, nine months of which is to be served cumulatively on the sentence imposed on Charge 1.

68On Charge 3, sexual penetration of a stepchild, you are convicted and sentenced to eight years' imprisonment. In relation to Charge 3, and the sentence of eight years' imprisonment I impose, I direct that three months of that sentence be served cumulatively on the sentences I have imposed on Charges 1 and 2.

69On Charge 4, sexual assault of a child under 16 years, you are convicted and sentenced to three years' imprisonment and three months of that sentence is to be served cumulatively on the sentences imposed on Charges 1, 2 and 3.

70On Charge 5, possession of child abuse material, you are convicted and sentenced to two years' imprisonment, three months of which is to be served cumulatively with the sentences imposed on Charges 1, 2, 3, and 4. 

71Your total effective sentence is 10 years' imprisonment and, to mitigate the punishment and promote your rehabilitation, I fix a minimum non-parole release period of six years.  I declare you have served 11 days of your sentence by way of pre-sentence detention.

72Pursuant to s.6AAA of the Sentencing Act I declare but for your plea of guilty I would have sentenced you to 14 years' imprisonment and fixed a non-parole period of nine years. 

73Pursuant to s.78(1) of the Confiscation Act I order the forfeiture and disposal of a towel which was seized from your home and also your mobile phone. 

74I order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth for a sample for placement on the database on the grounds the seriousness of the circumstances of your offending warrant the order. I must inform you that if at the time of the request for a sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample that will be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.

Sex Offender Registration

75The offence of sexual penetration of a child is a Class 1 offence under the Sex Offenders Registration Act.  The offences of sexual assault of a child under 16 and possession of child abuse material are Class 2 offences. Under the Act you are now a registrable offender and you must comply with the reporting conditions of Part 3 of the Act for the rest of your life.  You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal circumstances during that time.  It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting obligations. 

76Shortly, my associate, Ms Phillips, will give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations.  When she gives you that notice she will ask you to sign an acknowledgment that you have received it.  You may have a seat, Mr Fisken.

77Are there any matters arising, Ms Guesdon?  Thank you.  Mr Swan?

78MR SWAN:  No, Your Honour.

79HIS HONOUR:  Thank you.  Mr Swan, the court acknowledges the dignified and respectful attendance of Mr Fisken's family and his partner on the sentencing hearing and today.

80MR SWAN:  Yes, thank you, Your Honour.

81HIS HONOUR:  Ms Guesdon, was Mrs Fisken on video link today or no?

82MS GUESDON:  No, she couldn't get here by 10 o'clock, she had another engagement, but we will tell her.

83HIS HONOUR:  All right.  I believe I made a similar comment in respect to her at the time of the sentencing hearings so there is no need for me to say any more. We will adjourn the court sine die. 

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