Fisher (a pseudonym) v The King

[2025] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0175

PETER FISHER (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms.

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 25
JUDGMENT APPEALED FROM:	[2024] VCC 957 (Judge Murphy)

APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sexual penetration of child under 16 years – Total effective sentence 4 years’ imprisonment – Non-parole period 2 years and 3 months – Whether sentence was manifestly excessive particularly considering Bugmy –Offending objectively serious – Powerful mitigating features including mental impairment, difficult childhood, early guilty plea and remorse – Arguable that head sentence is beyond range – Leave to appeal granted.

Bugmy v The Queen (2013) 249 CLR 571, considered; R vVerdins (2007) 16 VR 269, referred to.

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Counsel
Applicant:		Ms B J Goding
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

1. The applicant pleaded guilty in the County Court at Ballarat to one charge of sexual penetration of a child under the age of 16 years. He was sentenced in accordance with the table below.

Charge on indictment	Offence	Maximum Penalty	Sentence	Cumulation
1	Sexual penetration of a child under 16 years[2]	15 years’ imprisonment	4 years’ imprisonment	N/A
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		2 years and 3 months’ imprisonment
Pre-sentence Detention Declared:		194 days
Section 6AAA Statement:		Total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years
Other relevant orders		1. Forfeiture of property in schedule. 2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is 15 years.

[2]Contrary to s 49B(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

1. The applicant seeks leave to appeal against this sentence.[3] The solitary ground of appeal is expressed as follows:

   The sentence imposed on charge 1 and the non-parole period are manifestly excessive in all the circumstances, and particularly in light of the application of the principles in Bugmy v The Queen (2013) 249 CLR 571.

   [3]An application for an extension of time in which to lodge notice of application for leave to appeal was granted administratively.

Circumstances of the offending

1. The circumstances of the offending were accurately set out by his Honour in his careful sentencing remarks. No dispute is taken with them in this application. I shall reproduce his Honour’s remarks concerning those circumstances:

   In 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.

   In 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.

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

   On 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.

   Upon 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.

   You 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.

   On 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 [sic]. I believe it’s been reported. In fact I’ll leave when you get home.

   You 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.

   You 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 [sic] unit, so I should have done more.

   …

   You were charged on 13 December 2023.[4]

   [4]DPP v Fisher (a pseudonym) [2024] VCC 957, [4]–[13] (‘Reasons’).

Reasons for sentence

Moral culpability

1. After summarising the offending, the judge noted that the applicant pleaded guilty at a committal mention, and the judge then proceeded to deal with the applicant’s moral culpability. In short, his Honour found:

   (a)the age discrepancy is an important factor in determining the level of criminality. Here, the applicant was 28½ years old and the complainant was ‘just shy’ of 14 years;

   (b)the applicant was fully aware of the complainant’s age and he was a mature husband and parent who could claim neither youth nor inexperience as mitigating factors;

   (c)‘there was an element of grooming and premeditation’ to this offending.[5] The applicant, over social media, sought sexual images from the complainant, sought to ‘hang out’ with her and persisted in this request until the morning of the offence when he arranged to meet with her;[6]

   (d)there is a presumption of harm involving sexual offending upon children;

   (e)the complainant resided in state care at the time, although the applicant was not aware of this.

   [5]Reasons, [18].

   [6]Ibid.

2. The judge concluded that the applicant must bear ‘high moral culpability’ for this offending.[7]

Prior criminal history

[7]Reasons, [21].

1. His Honour noted that the applicant had a ‘relatively limited prior criminal history that [did] not involve sexual offences’.[8] In 2015 he was sentenced to a suspended sentence of three months’ imprisonment for wilfully damaging property, contravening a family violence intervention order (‘FVIO’) and unlawful assault.[9] In 2016 he was sentenced to 38 days’ imprisonment (‘time served’) and a 12-month community corrections order (‘CCO’) for stalking, unlawfully being on property (two charges), contravening a conduct condition of bail, contravening a FVIO, unlawful assault and using a carriage service to harass.[10] Finally in 2019, he was convicted of reckless conduct endangering serious injury and failing to wear a seatbelt; he was sentenced to an aggregate fine of $3,000, his licence was cancelled and he was disqualified from driving for 20 months.[11]

   [8]Ibid.

   [9]Ibid.

   [10]Reasons, [23].

   [11]I have not included irrelevant and minor offences heard in the Magistrates’ Court between 2014 and 2019.

2. The judge noted that the applicant had ‘successfully completed the prior sentencing dispositions’ and was paying the final fine on a payment plan.[12]

Personal circumstances

[12]Reasons, [25].

1. The judge then turned to the applicant’s personal circumstances. As these were the focus of defence submissions on the plea and are the centrepiece of this application for leave to appeal, I shall reproduce his Honour’s comprehensive summary of those circumstances.

   As 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.

   You 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.

   I 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.

   You 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.

   In 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, one and a half and another child born last month.[13]

   [13]Reasons, [26]–[30].

2. The judge summarised the matters put in mitigation. In short form they were:

   (a)a very early plea of guilty entitling ‘full benefit’;

   (b)remorse evidenced from the plea and from the applicant’s immediate admission of the wrongfulness of his conduct;

   (c)his meaningful engagement with his treating psychologist, Ms Mattia — he has seen her on seven occasions whilst in custody;

   (d)the extensive psychological assessment of Ms Rebecca Fakhri which canvasses the applicant’s difficult childhood history and makes a number of diagnoses including, at the time of offending, complex PTSD and adjustment disorder with mixed anxiety and depressed mood. There were also ‘traits of borderline personality disorder’;[14]

   (e)the psychological opinion of Ms Fakhri set out in edited form in the judge’s reasons. It is convenient to reproduce some of that report:

   Emotional dysregulation inherent in [the applicant’s] comorbid mental health conditions impairs problem-solving and healthy information processing and can lead to an increase in negative emotions and a decrease in prosocial responses. 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.

   His mental health was previously managed by antidepressant escitalopram, which [the applicant] ceased in November 2023, approximately one month prior to the offending without advice from his GP. Antidepressants and other psychotropic medications work by increasing the levels of chemicals in the brain referred to as neurotransmitters, which are linked to mood and emotions. If this medication were to suddenly cease, this would cause a relapse of depressive and anxious symptoms, as has been the case for [the applicant]. 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.

   Symptoms of abrupt medication withdrawal (in this case Antidepressant Discontinuation Syndrome) also include nausea, tremors, anxiety, agitation, headaches, irritability, aggression, sleep disturbances, or decreased concentration, and it is expected that the longer the period of time that one has been on antidepressants predicts the severity of withdrawal effects. 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.

   With the absence of his psychotropic medication, [the applicant] began drinking alcohol more than usual to manage his distress. Though he was not under the influence of alcohol at the time of offending, he had been drinking alcohol the night prior. 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.

   At the time of the offending, [the applicant’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. His risk of general recidivism was rated as low to moderate, with his risk increased by psychosocial factors, and largely untreated mental health. Keeping in mind his C-PTSD and MDD, [the applicant] would require a low to moderate level of intervention to reduce his risk of reoffending, based on his criminogenic risk factors.[15]

   [14]Reasons, [34]–[35]; Psychological report of Mr Rebecca Fakhri dated 12 April 2024, [104]–[106] (‘Psychologist Report’).

   [15]Psychological Report, [108]–[112] (citations omitted).

3. The judge then referred to an emotionally charged letter from the applicant’s grandmother and primary carer from the age of five and half:

   She 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:

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

   It 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.

   The 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.[16]

   [16]Reasons, [44]–[46].

4. His Honour noted that defence counsel had relied on the principles found in Bugmy v The Queen[17] and R vVerdins[18] and contended that both sets of principles ought to operate to diminish moral culpability and lessen the need for general deterrence. The judge accepted these contentions. The judge also accepted that a term of imprisonment would have an adverse effect on the applicant’s mental health.

   [17]249 CLR 571; [2013] HCA 37.

   [18](2007) 16 VR 269; [2007] VSCA 62.

5. It was also accepted that the burden of imprisonment would be greater as a consequence of the applicant’s separation from his wife and children.

Sentencing principles

1. After reviewing the parties’ sentencing submissions the judge noted that he derived little assistance from comparable cases and then turned to the purposes of sentencing. His Honour recited the purposes of sentencing, stated he had regard to the maximum penalty and the standard sentence correctly, noted their relevance to the instinctive synthesis and stated that ‘[in] sentencing for offences against children, considerations of general deterrence, denunciation and protection of the community [looms] large’.[19]

   [19]Reasons, [66].

1. His Honour stated that he allowed ‘a moderation in consideration of general deterrence and … moral culpability’.[20] He continued:

   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.[21]

   [20]Reasons, [67].

   [21]Ibid.

This application

1. The only ground on this appeal is manifest excess and it is linked to the principles in Bugmy v The Queen.[22] After anxious consideration, I have determined to grant leave to appeal. While I agree with the judge that the offending is objectively serious with a number of aggravating features including some grooming, the vulnerability of the young complainant and the age discrepancy between the participants, there were some quite powerful mitigating features. These included the applicant’s early plea, and the judge’s satisfaction that ‘there should be a reduction in [the applicant’s] moral culpability’ arising from his very deprived upbringing and that he was prepared to give ‘significant allowance’ for this.[23] The judge also noted that the need for general deterrence was moderated arising from this consideration. It seems his Honour also considered certain of the limbs of Verdins[24] to be engaged.

   [22](2013) CLR 571; [2013] HCA 37.

   [23]Reasons, [49].

   [24](2007) 16 VR 269; [2007] VSCA 62.

2. Bearing steadily in mind the maximum penalty (15 years’ imprisonment), the standard sentence (6 years’ imprisonment) and the aggravating and mitigating factors I have mentioned in these reasons, I am of the view that it is reasonably arguable that the head sentence of 4 years fails to strike an appropriate balance of these considerations and that the sentence is beyond range as a consequence. In particular, I am unable to discern from the sentence imposed much evidence of the diminution in moral culpability and moderation of the need for general deterrence adverted to by the judge in his reasons for sentence.

Conclusion

1. I will order that leave to appeal be granted.

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