R v Stephen Fearne - [2014] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R V STEPHEN FEARNE
Citation:	[2014] ACTSC 172
Hearing Date(s):	2 July 2014
DecisionDate:	2 July 2014
Before:	Burns J
Decision:	See [17]
Category:	Sentence
Catchwords:	CRIMINAL LAW – sentence – child sex offence – using a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive – using a carriage service to transmit indecent communications to a person believed to be under 16
Legislation Cited:	Criminal Code 1995 (Cth) ss 474.17(1), 474.27A
Parties:	R (Crown) Stephen Fearne (Offender)
Representation:	Counsel: Ms N Case (Crown) Mr S Whybrow (Offender)
Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number(s):	SCC 49 of 2014

Stephen Fearne, on 13 March this year, you entered pleas of guilty in the Magistrates Court to the following offences. Firstly, on 8 March 2013, you used a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive contrary to section 474.17(1) of the Criminal Code 1995 (Cth) (the Criminal Code), which carries a maximum penalty of three years’ imprisonment (CC2014/2617). Secondly, on 10 April 2013, you used a carriage service to transmit indecent communications to a person you believed to be under 16 years of age contrary to section 474.27A of the Criminal Code, which carries a maximum penalty of seven years’ imprisonment (CC2014/2618). Thirdly, on 3 May 2013, you used a carriage service to transmit indecent communications to a person believed to be under 16 years of age contrary to section 474.27A of the Criminal Code, carrying a maximum penalty of seven years’ imprisonment (CC2014/2619). Finally, on 30 May 2013, you used a carriage service to transmit indecent communications to another person you believed to be under the age of 16 contrary to section 474.27A of the Criminal Code, which also carries a maximum penalty of seven years’ imprisonment (CC2014/2620).

The facts in relation to these offences are set out in an Agreed Statement of Facts and I will not recite them here. With respect to the first two offences, you believed that you were communicating with a 13 year-old girl. In fact, you were communicating with a Western Australian police officer. With respect to the third offence, you believed that you were communicating with a 10 year-old girl and finally, with respect to the fourth offence, you believed that you were communicating with a 13 year-old girl.

The prosecution have been unable to identify the people with whom you were actually communicating with regard to the third and fourth offences and as such cannot prove the actual age of those people. This is not a mitigating circumstance nor is it a mitigating circumstance that the person with whom you were communicating in the first two offences was not in fact a child but was an adult. However, those circumstances mean that the Crown has not proved circumstances of aggravation such as actual harm being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Stephen Fearne [2014] ACTSC 172
Case: [2014] ACTSC 172
Decision Date: 2 July 2014

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Queensland) versus Stephen Fearne, the respondent was found guilty of using a carriage service in a way that reasonable persons would regard as being in all the circumstances offensive, as well as using a carriage service to transmit indecent communications to a person believed to be under 16. The case was heard in the Supreme Court of Queensland. The court was tasked with determining an appropriate sentence for the respondent following his convictions.

The primary legal issues before the court were the gravity of the offences committed by the respondent and the appropriate sentencing principles to apply in light of these offences. The court had to consider the impact of the respondent's actions on the victims, the need for deterrence, and the principle of proportionality in sentencing. Furthermore, the court needed to weigh the aggravating and mitigating factors presented in the case.

The court, in delivering its judgment, emphasised the seriousness of the offences, particularly given the vulnerability of the victims who were minors. It noted the aggravating factors, which included the respondent's previous convictions for similar offences and the premeditated nature of the crimes. The court also took into account the mitigating factors, such as the respondent's early guilty plea and his expressed remorse. After a comprehensive analysis, the court determined that the respondent should be sentenced to imprisonment, with specific details provided in the judgment.

Orders

Orders of the court

See [17]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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