R v Fearne [2014] ACTSC 172

Commonwealth Director of Public Prosecutions (Crown)

1. 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).

2. 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.

3. 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 caused to any of the people you communicated with. Nevertheless it is clear that by engaging in this type of conduct, there was a risk of harm being occasioned to children.

4. The admitted facts in relation to the first offence reveal offending, in my opinion, towards the bottom of the range of such offences. The facts in relation to the second offence are more serious and reveal explicit conversation including suggestions that the young female you believed you were talking to engage in sexual activity and the provision to her of sexually explicit images. In my opinion, this reveals offending towards the lower end of the middle range of such offences. The facts relating to the third offence have the same quality as those for the second offence but this offence is somewhat more serious because of the age of the person that you believed you were speaking to, being 10 years old. The facts in relation to the fourth offence reveal offending similar to that in the second offence.

5. I note that you have no previous convictions which entitles you to a degree of leniency in these proceedings. A Pre-Sentence Report was tendered which I take into account other than that portion which deals with your attitude to these offences.

6. I note that you have been assessed as being at low risk of general reoffending and the author of the Report assessed you as being at moderate risk of reoffending in relation to sexual offences partly because of your supposed minimisation of your behaviour by blaming your victims for engaging in sexual conversation. I am not satisfied that this second assessment is reliable as it appears to me to be based in large measure on material which was not before the court.

7. I note that the author of the Report assessed you as being suitable for periodic detention. In the course of the sentence hearing, you gave evidence in which you spoke of your remorse for your conduct and your understanding and acknowledgement that what you had done was wrong. You denied sexual attraction to female children saying, "I didn't think of that person as a child at the time". I understand that in saying this, you were not suggesting that you did not believe that the people with whom you were communicating were under 16 years of age; rather, I understand you would have been speaking of these communications as depersonalised in the sense that they were not actually present with you. In my opinion, this is consistent with the opinions expressed in the reports of Professor Mullen and Dr Barry. I will now turn to those reports.

8. Professor Mullen provided a report dated 3 May this year. He notes no evidence of you accessing child pornography but does record a history of you having access to general pornography. In his opinion your sexual history provides no basis for concluding that you have a sexual attraction to female children. He considers that you have shown remorse unconnected with contact with the criminal justice system by removing the computer which you used in your offending and placing it in the garage so as to place it outside of temptation.

9. Professor Mullen was of the opinion that you lack insight into your own psychological functioning and that of others. However, he was of the opinion that you do not display paedophilic indicators or evidence of any such tendencies. You also do not display any obvious antisocial traits. He expressed the opinion that you need to continue psychological counselling.

10. Dr Barry provided a report dated 2 June this year in which he expressed the opinion that your conduct suggested a fantasy being acted out rather than intentional predatory conduct. He expressed the view that you have gained insight into your conduct over the period that you have been treated by him and also its potential impact on potential victims during the time that you've attended counselling. He also said that you had expressed remorse. He formed the view that you were at low risk of recidivism.

11. I note that you are 28 years old, you are married and have a 12-month-old son. I also note that you entered pleas of guilty to these charges at an early opportunity although when first spoken to by police during the execution of the search warrant at your home, you denied the allegations. I accept your evidence that at that time you panicked and tried to avoid the consequences of your actions. However, I am satisfied that shortly thereafter, it became clear to you that you needed to cooperate in relation to what you had done and to provide the truth about your actions.

12. I accept that your pleas demonstrate remorse and also have a significant utilitarian value. Whilst I accept that the Crown case against you was strong, I do not go so far as to say that it was overwhelming. In my opinion, the otherwise appropriate sentences should be reduced by 25 per cent in order to reflect your pleas.

13. I accept that you are remorseful for your actions. Not only is that demonstrated in your pleas, you also demonstrated remorse in your evidence. The evidence of your wife and the testimonials provided by others also speak of your remorse. I do not accept the suggestion made by the Crown that you do not have an understanding of the seriousness of these offences or the potential harm you may have caused. I am satisfied that you have demonstrated such an understanding which is referred to in particular in the report of Dr Barry.

14. I note that you have the continuing support of your family and your employer with whom you have been frank about your offending. The continuing support of your family and your continuing employment are circumstances likely to assist you in avoiding reoffending. It is clear in my view that you were sexually aroused by your participation in these offences but I am not satisfied that they reveal a fixed sexual attraction to female children. I note that you have voluntarily undertaken counselling with Dr Barry and others to deal with your offending and to avoid its repetition. Not only does that demonstrate remorse, it is also relevant to the issue of personal deterrence in sentencing.

15. In sentencing you, I take into account that these offences all occurred over a three-month period. It is of some significance that many weeks went by between individual offences. In the light of your remorse and your willing acceptance of appropriate treatment and the contents of the reports that have been put before me, I consider that you have good prospects for rehabilitation and that personal deterrence should not figure prominently in any sentence for these offences. Nevertheless, it must be accepted that these are serious offences and that any sentence I pass must be such as to deter others from committing this type of offence.

16. It has been accepted by counsel, and I think rightly so, that these offences call for a term of imprisonment. The Crown has suggested that a fulltime term of imprisonment is warranted. In my opinion, sentences of imprisonment to be served by way of periodic detention or partly by way of partly of periodic detention and partly by way of suspended sentence will be adequate to address the requirements of sentencing and at the same time acknowledge your prospects for rehabilitation.

17. Mr Fearne, you are convicted and sentenced as follows:

a) With respect to the charge of using a carriage service in a way that reasonable persons would regard as being offensive on 8 March 2013 (CC2014/2617), I record a conviction and you are sentenced to six months' imprisonment commencing today and expiring on 1 January 2015. I order that sentence by served by way of periodic detention.

b) With respect to the charge of using a carriage service to transmit indecent communications on 10 April 2013 (2014/2618), I record a conviction and you are sentenced to 12 months' imprisonment commencing today and expiring on 1 July 2015 which will be wholly suspended and there will be a recognisance to be of good behaviour for a period of three years with conditions that:

i. firstly, you are to accept the supervision of ACT Corrective Services for that period of three years or such lesser period as deemed appropriate by your supervising officer and that you comply with all directions of Adult Corrections; and

ii. secondly, you are to undertake such assessments, counselling or treatment for sex offending or in relation to relationship counselling as directed by ACT Adult Corrections.

c) With respect to the charge of using a carriage service to transmit indecent communications on 3 May 2013 (CC2014/2619), I record a conviction and you are sentenced to 14 months' imprisonment commencing on 2 January 2015 and expiring on 1 March 2016. That sentence will be wholly suspended and there will be a recognisance to be of good behaviour for a period commencing on 2 January 2015 and expiring on 1 July 2017.

d) With respect to the charge of using a carriage service to transmit indecent communications on 30 May 2013 (CC2014/2620), I record a conviction and you are sentenced to 12 months' imprisonment commencing 2 July 2015 and expiring on 1 July 2016. That sentence will be wholly suspended and there will be a recognisance to be of good behaviour for the period commencing 2 July 2015 and expiring on 1 July 2017.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.