R v Fisher [2022] NSWDC 98

District Court New South Wales

Medium Neutral Citation: R v Fisher [2022] NSWDC 98 Hearing dates: 18 March 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Ex tempore reasons given in court Catchwords: CRIMINAL LAW – sentencing- procure child under 14 years for unlawful sexual activity - incite another person to sexually touch a child who is under the age of 10 years- producing child abuse material- intentionally incite another person to carry out a sexual act with or towards a child who is under the age of 10 years. Legislation Cited: Crimes Act 1900 (NSW) ss 66EB(2), 66DA(c), 91H(2) and 66DC(d) Crime (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Fuller [2010] NSWCCA 192 Gifford v R [2016] 263 A Crim R 373 Category: Sentence Parties: Regina (Crown) Craig James Fisher Representation: Counsel: Mr O'Conner (Crown) Mr O'Sullivan (Defence)

Solicitors: Mr Locker (Defence) File Number(s): 2020/330882 Publication restriction: none

Judgment

Introduction 1. Craig James Fisher appears to be sentenced in relation to a number of charges, in fact four charges. The first charge is a contravention of s 66EB(2) of the Crimes Act, which is the section of the Act relating to the procuring or grooming of a child under the age of 16 for unlawful sexual activity. 2. Subsection (2) provides that adults who intentionally procure a child for unlawful sexual activity with that or any other person is guilty of an offence. If the child is under the age of 14, the maximum sentence is 15 years imprisonment. There is a standard non-parole period of six years. 3. The second count, which is sequence 17, is the same offence, with the same penalties. 4. The third count, sequence 14, is an offence under s 66DA(c) of the Crimes Act. That is the offence of a person intentionally inciting a child who is under the age of ten to sexually touch another person. The maximum penalty is 16 years imprisonment with a standard non-parole period of eight. 5. The fourth offence for sentence is sequence 18, which is also an offence under s 66EB(2) with the same penalties applying. 6. There are two charges on two Form 1 documents. The first is sequence 4 which attaches to sequence 16, namely count 1. Sequence 4 is producing child abuse material in breach of s 91H(2) of the Crimes Act. It provides a person who produces, disseminates or possesses child abuse material is guilty of an offence. The maximum penalty is ten years imprisonment. 7. Finally, the offender has admitted his guilt in relation to sequence 6, which attaches to sequence 17. Sequence 6 is breach of s 66DC(d) of the Crimes Act which is a person who intentionally incites another person to carry out a sexual act with or towards a child who is under the age of ten; maximum penalty is seven years imprisonment. 8. The penalties available to the Court reflect the seriousness with which the community through parliament views this offending. There is no doubt that offending of this type is extremely serious and can lead to tragic outcomes in circumstances where real children are involved. Fortunately in this circumstance the child was fictitious and not an actual child, as indeed the mother of the child was. 9. By reference to the decision of R v Fuller [2010] NSWCCA 192, it is my view that whilst the presence of an actual victim may aggravate the offending, the absence of an actual victim does not mitigate the offending so as to reduce the objective seriousness. 10. I have mentioned the charges on the Forms 1. I have signed those documents and will have regard to those charges when I sentence the offender for the sequences to which they attach. They are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two matters always material in the sentencing process. The first is the need for personal deterrence and the second is the community's entitlement to extract retribution for serious offending 11. I have also observed that in relation to the four principal offences for sentence, there are standard non-parole periods. The Crimes (Sentencing Procedure) Act provides that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors without bringing into account matters that are unique to the offender or the class of offenders. It is but one factor to which the Court is to have regard in exercising its discretion in relation to sentence, together with other objective and subjective factors. The process of applying a standard non-parole period is not arithmetical, but rather intuitive. 12. I do not intend to impose the standard non-parole period in respect of the four matters as in my view the offending falls below the midrange and in any event the subjective features warrant a lesser non-parole period. In addition, to impose the standard non-parole periods which range from six to eight years, would cause a sentence which would be disproportionate to the offending. 13. The offending took place between 29 September 2020 and 18 November 2020. He was arrested on 20 November 2020 and was bail refused. He has been in custody since that time. He pleaded guilty in the Local Court on 1 November 2021 at which time a number of sequences were withdrawn and dismissed and others became the subject of the Forms 1 to which I have made reference. 14. At the commencement of proceedings today the offender was arraigned on a fresh indictment. He pleaded guilty to counts 1 to 4. Count 5 was placed on the Form 1.