R v Fisher

Agreed facts

1. The statement of agreed facts is lengthy. Its contents are disturbing as is this offending. Conduct of this type calls for strong denunciation and requires general deterrence.
2. The offender was born 5 October 1965.
3. The Child Exploitation Internet Unit, CEIU, investigates the sexual exploitation of children that is facilitated through the use of internet and telecommunication devices. It is through that process that the offender became discovered by the police. Police were performing covert online duties and assumed identities referred to in the facts as CEIU 16. That is the identities were referred to as a 36 year old female with a nine year old daughter.

Facts relating to Sequence 16

1. The following facts relate to sequence 16, procuring a child under 16 for unlawful sexual activity.
2. On 29 September 2020 police logged into the social networking site ChatIB, using the identifier previously referred to. The offender, using the username 'Aussie Joe', initiated conversation with the police introducing himself as Craig, 54 from New South Wales. The police officer introduced herself as Josie, 36 from New South Wales.
3. The offender disturbingly then said to the police officer, "Have you touched some of your children maybe". The police officer stated she had a nine-year-old daughter and asked the offender if he had any children. The offender replied by stating, "Love to be with you and share yours".
4. The offender then enquired of the police as to whether they had access to Skype or Gmail and the police officer said they had access to Skype. The offender then asked if he could add the police officer to Skype and the police then provided an email address for the Skype account. On 29 September 2020 (the same date) a Skype chat then took place.
5. The police officer informed the offender that she sometimes showered with her daughter, causing the offender to make statements which are offensive and disturbing, about the genitalia of the child and mother engaging with the child in the shower. The police officer asked the offender if he was serious about this and he replied, "I'm serious". The offender then suggested that the police officer/mother and her daughter shower together. He then enquired as to how the daughter would engage with his penis and specifically enquired of the mother whether she would like the daughter to touch his penis in front of the mother.
6. The offender then engaged in a video chat at which time he exposed his penis to the police officer and then enquired whether she liked seeing him, in particular by reference to his penis. He then stated that he would like to be in the shower with the mother and fictitious daughter with him engaging sexually with the mother and the daughter engaging sexually with his penis. He then made a statement about the daughter engaging with him by performing fellatio and he enquired as to whether he might be able to speak with the daughter. He then enquired as to whether he could be sent a photograph.
7. The conversation on that day ended with the mother stating that she was about to go to pick up the fictitious child, I assume from school, to which the offender replied inviting the mother to think of him engaging in cunnilingus with the fictitious daughter. The fictitious mother said, "Is that what you are going to do" and his response was, "Yes" and he further said that he intended to rub his penis over the child's vagina.
8. The next event occurred on 1 October 2020, again a Skype chat. The offender initiated the conversation. There was then a sexualised discussion between the fictitious mother and the child, again referencing showering together. Again, the police officer enquired of the offender, "Are you for real about all this stuff". He replied, "Yes". During the conversation the offender engaged the video chat feature and again exposed his penis.
9. Those are the facts relating to sequence 16 being count 1 on the indictment.

Facts relating to Sequence 4

1. The following facts relate to sequence 4, which is the charge on the Form 1 attaching to sequence 16, being incite production of child abuse material.
2. The offender asked the fictitious mother what the daughter was wearing and the mother indicated that she was wearing a white dress. The offender then instructed the fictitious mother to "Lift the dress up and take a photo of panties" and the fictitious mother stated that she did not want to send photos of her daughter.
3. The offender then went on to describe a fantasy in which the daughter interrupted the mother performing oral sex on the offender and the daughter then asked to touch part of his genitals before then performing oral intercourse on him. The fictitious mother then said that she thought she heard the fictitious daughter's door. The offender then suggested that he remain "on cam" so "she might catch us".
4. The next exchange occurred on 7 October 2020 at which time the police initiated a conversation with the offender via Skype. The fictitious mother told the offender that she had mentioned him to her daughter, to which the offender replied, "She might be shocked if she sees us chatting and I'm naked". The offender said to the mother that she will need to tell him what to do and that he had never done this before.
5. The mother stated that her daughter was next to her and wanted to say hi. The offender replied by saying, "Okay I'll leave my underpants on". He then had a discussion with the person whom he believed to be the daughter. He said to the daughter, "I'd love to see you one day if your mum lets me" and he asked where the mother was. The daughter replied the mother had gone to the bathroom and the offender replied, "Tell her I'm getting ready to have a shower, would she like to see me now". The offender asked, "Would you too?" and offered to turn his cam on for the daughter to see him.
6. The mother then stated that she had to run to the toilet and the offender replied, "I just said to the princess I'm getting ready for a shower [and] to ask you if you both wanted to see me". The offender stated that he would have his underpants on first and would take them off if the daughter was okay with it. The mother said she would ask the daughter if she wanted to see mummy's friend and then stated, "She just nodded 'yes'".
7. The offender engaged the video chat feature and the mother stated: "She's asking where your face is, haha". The offender replied, "Hi, this is me in my pants before I shower". The mother replied, "She's asking why you keep touching your undies". The offender replied, "Tell her it feels good" and "Does she want to see why it feels good". The mother then said to the offender, "She nodded" and asked the offender if he wanted to speak to her daughter alone "for a bit". The offender said yes.
8. The offender then said, "Do you want me to take my pants off" and the daughter replied, "Um, I don't know, you mean your rude bits". The offender then exposed his penis to the nine-year-old fictitious chid and commenced masturbating. The daughter asked what he was doing and he replied, "It gets bigger if you play with it". The daughter then asked, "How can I play with it though" to which the offender again replied referencing showering together. At paragraph 18 of the statement of agreed facts the conversation is set out in detail. I do not propose to read the detail.
9. At paragraph 19 of the agreed facts the offender suggested to the child that she might like to perform fellatio on him as well and that her mother would show her how. Again, returning to the subject of showering together the offender asked the child if she wanted to. The daughter asked the offender, "Would you really want me to touch it", referencing his penis and the offender replied "Yes" and "maybe I can touch and tickle your rude bits".
10. The offender then stated, "Your mum might bend over and I put my thing inside her rude bits" and then asked the nine year old "Would you like to see that". The offender then stated that he would kiss the nine-year-old child and touch her rude bits too.
11. The fictitious mother then resumed speaking to the offender. He asked to see her breasts. The mother said she was not ready to send a photo of her daughter but would send a photo of her. The offender then enquired of the mother as to whether he did the right thing masturbating in front of the child. The mother replied that she did not seem to mind. The offender then suggested to the mother that she take her pants off and let her daughter see her digitally penetrating herself. He then enquired as to whether it "turned you on", referencing the daughter viewing the offender's penis. He stated "I think she liked the sound of the three of us playing in the shower". The conversation was then terminated by the police officer.
12. The next chat occurred on 26 October 2020 via Skype. It was initiated by police. The offender enquired as to whether the mother had spoken to the child about their previous chat.

Facts relating to Sequence 6

1. The following facts relate to sequence 6 on the Form 1, being incite sexual acts towards a child under 10 in breach of s 66DC(d), which is to be taken into account in relation to sequence 17.
2. On 3 November 2020 police initiated a conversation with the offender via Skype. Police asked the offender, "Is this all just like fantasy talk or do you actually want to meet us". The offender replied, "I want to be with you both". The offender sent the fictitious mother an image of him ejaculating and stated, "Look what happened last night thinking about you both".
3. He again enquired as to the daughter's reaction to seeing him naked and whether she had stated she likes seeing it. The fictitious mother replied saying that her daughter was smiling so she thought her daughter really did like it.
4. The offender told the police officer, the fictitious mother, that she should let her daughter see her touch herself and that she should tell her daughter she is thinking about him. The mother asked the offender what he would like to be doing and he replied, "Lying on your bed naked while you pick the princess up and I'd be a surprise for her when she gets home". He then suggested that the mother and daughter would remove their clothes and he said, "Let's all be naked and lay on the bed and cuddle". He then made a suggestion about an interaction with the daughter.
5. The offender said that he wanted to speak to the mother and daughter on the phone and asked if the daughter would like to talk to him on the phone while she watches him "like this". Again, that is a reference to him masturbating. The mother said she would ask the daughter if she would be comfortable with that. The offender stated the mother and daughter should take off their clothes while they talk to him.

Facts relating to Sequence 17

1. The following facts relate to sequence 17, being procuring a child under 16 for unlawful sexual activity in breach of s 66EB(2).
2. On 5 November 2020 a telephone call occurred. At 3.24pm the police officer (fictitious mother) telephoned the offender on a number the offender provided following a request from the offender to speak with the mother via telephone. The mother asked, "So like are you serious? You want to come down and like meet us" and the offender replied, "Yeah" and "Well you've seen how hard you make me". The mother stated it would be good to see the offender in person and stated, "So you're not just playing around, you're like you really want to do this" and the offender replied, "Yeah well like I've shown you, you've seen all of me. She's seen my face…" and then there is further reference to the fact that she saw his penis.
3. The offender then suggested putting on his cam so that the mother could see him while he spoke to the mother. However, she said that she was unable to get a good phone reception in front of her computer. The mother asked, "What else are you thinking that we'll do when you come visit". The offender replied, "Let's just meet and get naked and see what happens". The mother replied, "With just me or" and the offender replied, "We'll start off with just you and then we'll see if someone might come and join us". The mother then asked, "Like what sort of stuff would she join in with". The offender replied, saying that they could all be naked and experiment. He suggested to the mother that she might perform fellatio on him in front of her daughter.
4. I do not intend to read out the balance of paragraph 29 as in my view the conversation which took place is plainly offensive and is extremely disturbing.
5. The offender then instructed the mother to take her top and her pants off and sit in her bra and underwear and touch herself. He directed her to rub her vagina and insert her finger. He said, "I'd like the princess to walk in and see you do that". He suggested, "Maybe you should call out to her". The mother replied, "I'll just talk to you a little longer first". The mother then said somebody was knocking at the door and she terminated the call.
6. On 5 November 2020 the police officer resumed speaking to the offender via Skype. The offender again instructed the mother to remove her clothes and let her daughter see her. The fictitious daughter was said to be playing with her neighbour in her room. The video chat feature of the device was then engaged. The offender asked, "Are the neighbours kids young girls" and the mother replied, "Yeah one is Princess' age and the other is seven". The fictitious mother asked, "Are you thinking about them" and the offender replied, "All of us naked together now on the bed". He then said words to the effect that there would be four vaginas to look at, touch and lick. He then suggested that he would rub his penis over their vaginas before performing cunnilingus on them.
7. The police officer then asked the offender, "So when are you going to do this for real". The offender stated, "Let's talk, I'd like to talk to the princess" and "wish she was watching now". The mother said she was playing, otherwise she would get her in and that, "If you're keen, I'm not working next Thursday" and the offender replied, "Okay I'd like to see you both. Can you send me a photo". The police (mother) stated she did not send "pics of princess on the internet in case they were shared". The offender asked if the children could see the mother's screen and enquired as to what the daughter would say if she witnessed the offender ejaculating. That call was terminated by police.
8. On 10 November 2020 the fictitious mother initiated a further conversation via Skype. There is reference to it being a nice day and it would have been good to be at the beach, the offender stating, "See both you beautiful girls in some hot bikinis". The offender then asked the fictitious mother, "Do you both want to see me naked", indicating that he would be on the cam. The fictious mother said that her daughter had said yes.
9. The mother then asked the offender if he would like to speak to her daughter via telephone. The offender said yes. The offender engaged the video chat feature and exposed his penis to the mother and the daughter. The offender asked what they were wearing. The mother replied that the daughter was wearing a summer dress. The offender asked whether she was wearing panties and she replied that she was and the offender responded by saying: "I'd love to be standing there like this now" referencing him standing naked with an erect penis. The mother then said that her daughter was ready and would call the offender and the offender said, "Are you going to watch me while she calls". The mother said "Yes".
10. On 10 November 2020, the same day, at 3.46pm the fictitious daughter telephoned the offender. The offender asked her whether she liked seeing him on cam. The daughter replied, "Yeah I've never seen one of them before" and later asked what he was doing with his penis. He replied to the effect that he was playing with it because it makes it feel good and that he was thinking about the nine-year-old child and her mother. There is then some reference to ejaculating.
11. The offender said, "I'd like to see you and your mum" and asked if the daughter wanted him to come and visit. The daughter replied "Yes" and the offender said: "would you like me to be like I am now with no clothes on" and suggested "maybe you and your mum and me all with no clothes on". He then instructed the child to put down the phone and return to the mother to watch him on the web cam.
12. On 10 November 2020 during a Skype chat the offender stated words to effect "I'm going to ejaculate". The mother indicated that her daughter was present. The offender then ejaculated while visible on camera and asked: "You like". The mother replied to the effect the daughter enquired about the act. The fictitious mother stated that the daughter had asked when the offender was going to visit. The offender replied: "I'd like to see you both first. It's good talking to you but I'd like to see you". The fictitious mother then sent a photograph of herself.
13. The offender asked the mother where she lived. She indicated Westmead. The offender said that he lived on the Central Coast and enquired as to what nights were best for them. The offender suggested meeting during the day and "picking princess up from school together". The police suggested meeting the Friday the following week, 20 November 2020, and stated "The thought of that makes me quite excited". There was then further discussion about ejaculating and ejaculant. Paragraph 42 of the facts set out some further discussion as to what the offender wanted to do with the fictitious mother and child upon meeting them.
14. On 12 November 2020 the fictitious mother initiated a conversation with the offender via Skype. He told her that he worked in a mining and management job as a purchasing manager. He confirmed that he was not working the following Friday the 20th and that date was then confirmed. The offender said that he should drive down and meet her after work somewhere tonight, that is, 12 November 2020 and she indicated that she was going to be working in the morning and declined that offer.
15. The offender then engaged the video chat feature and exposed his erect penis to the mother and stated: "That's how much I'm thinking about you right now". The mother then stated: "What else are you thinking about", the offender replied: "Being naked with both of you and both of you sucking me". The offender then asked the fictitious mother about the child performing fellatio upon him and what would happen if he ejaculated in her mouth. The police asked: "Would you want to do that", the offender replied, "might just happen". The police mother replied whether he would warn her first as she might get a shock.
16. The offender then asked if the daughter liked him ejaculating the other day and the mother replied she asked "is there a baby in there". The offender instructed the mother to get naked in front of her daughter or get her in underwear with her. There is then reference to further sexualised behaviour to which I do not intend to make detailed reference.
17. The offender asked the mother to send him a photo, which she did. There was then references made by him to the photograph and various body parts of the fictitious mother. He again suggested coming down to Sydney that night which the fictitious mother rejected as she was working in the morning.
18. On 17 November 2020 there was a further Skype chat initiated by the offender. He stated, "I have something to show you". He then engaged the video chat and exposed his penis to the fictitious mother. It ended with the fictitious mother stating, "I can't wait until Friday". The offender asked whether the mother could talk to her on the phone and watch him and the mother said that she had a man over to fix her washing machine. There was then further sexualised discussion.
19. The police officer then asked, "So are we all good for Friday". The offender replied, "Let's talk tonight all of us on cam". The mother said "How though" and the offender replied "Chat". The fictitious mother said that her mother was coming over for dinner that night. The offender suggested speaking with the nine-year-old child if the mother went to the bed and the child was still awake. When the mother replied that the child did not have a phone the offender stated: "I wasn't serious anyway". That chat was then terminated.

Facts relating to Sequence 14

1. A further chat occurred on 18 November 2020 initiated by the police via Skype. He suggested, "maybe you should take some clothes off too". The police officer then asked whether he was really coming on Friday and he replied "Yes". He then instructed her to get undressed. She replied, "I just want to make sure this is actually happening before we go any further". The fictitious mother enquired about the time of the meeting on Friday. He said, "When do you want me". She said that she had taken a day off and suggested they spend the day together. The offender replied, "I could be there 5 in the morning, be there naked when she wakes up". The mother stated, "Maybe not that early. I'd like to get her off to school" et cetera.
2. The offender then asked whether the child was present and that he was actually excited to go on cam for her. The police officer suggested the offender arrive at 9.30 to 10am on Friday. There was then reference to the daughter performing fellatio.
3. The offender enquired of the child whether her mother was dressed. The daughter said that she was. The offender instructed the mother to get undressed. The daughter then said that her mother had bra and undies on. There was then talk about the mother touching herself and a conversation with the fictitious daughter about that. The daughter said to the offender, "She's touching her rude bits". The offender instructed "Take her pants off" and the daughter indicated that the mother was not wearing pants. The offender instructed "No bra" and the daughter replied words to the effect "she just took that off too". The offered then asked the daughter whether she enjoyed watching her mother touch herself and the daughter replied: "Um, I don't know. I think so".
4. The offender then suggested to the fictitious nine-year-old child that maybe she should get undressed with her mother. The daughter replied, "Oh okay". The offender then said "Touch mummy's nipples, are they hard". The daughter replied, "They're pointy like she's cold". The offender asked whether they felt good. The daughter replied "They're hard". The mother indicated the daughter was a bit shy and was sitting on a chair next to her. The offender enquired as to whether the daughter had removed her clothing and the mother said "She's still got her undies on but that's it".

Facts relating to Sequence 18

1. The following facts relate to sequence 18 being procuring a child under the age of 16 for unlawful sexual activity in breach of s 66EB(2).
2. The offender stated to the mother "See if she will touch your vagina". The mother replied, "She put her hand on it and she's giggling". The offender then said, "Tell her to put her fingers inside you". The mother replied, "She's a bit nervous now". The offender then stated, "Maybe if you put your hands in her pants" and instructed the mother to touch her daughter's vagina. The mother then said, "She said that tickles". The offender then said, "Good" and "Maybe take her pants off, spread her legs". The mother replied saying her daughter's legs were spread. The offender then asked whether the mother would perform cunnilingus on the daughter and the mother replied, "Not sure really". There was then further discussion about sexual interaction between the parties.
3. Next the offender enquired of the mother as to whether her daughter would like to perform fellatio upon him. There was then further discussion about that subject matter. The mother said the daughter was getting a bit bored and she was hungry and the offender replied words to the effect "Get her to kiss your vagina". The mother said the daughter was getting a bit cranky and wanted some food.
4. The offender later called the mother and asked, "How did you feel playing with yourself naked in front of her and her touching you". The mother replied "Exciting". The offender replied words to the effect, "I think she could put her whole hand in you".
5. The offender sent a message to the mother later that evening, 18 November 2020 saying that he would not come down on Friday 20 November 2020, stating "I want to wait until we see each other on cam and talk to you both on cam".

Facts relating to Arrest and ERISP

1. The offender was arrested 20 November 2020 at his home in Killarney Vale. He was cautioned by police and taken to Wyong Police Station. He engaged in an interview with the police officer on that occasion.
2. The agreed facts then move to the ERISP conducted by the police with the offender in which the offender made a number of admissions. He also provided some information which was false, including that it was the mother who commenced the conversation about the daughter and that he also did not believe that it was real and that he had no intention of attending Westmead for the purpose of engaging in sexual activities with the mother and the child. The details of what was said in the interview are paragraph 64(a) through to (ee) of the agreed facts.

Criminal record

1. Annexed to exhibit A is the criminal record of the offender which is entirely without any offences. He is a person who is entitled to a finding of good character and leniency which may flow from that. His corrective services record do not identify any infringements while in custody.

Report of Psychiatrist

1. The offender relies upon a report by Dr Christopher Bench (psychiatrist) dated 11 March 2022 (exhibit 1).
2. That report provides information about the offender's background and his childhood, both of which were generally unremarkable. He was married for a period of three years but did not have children.
3. He told Dr Bench that he does not want to touch any kids, does not want to meet kids and does not have any attraction to kids or anything like that. That statement appears to be well at odds with two facts: one, this offending and, secondly, the fact that earlier in the year 2020 the offender was engaged in conversations with a girl whom he understood to be 18 or 19 at first, but later discovered she was just 14 years of age. The sexualised talking continued notwithstanding that fact for a period of time.
4. The offender was medically retired in August 2020. He was suffering high levels of stress and turned to alcohol. He told Dr Bench that his libido was impaired and: "I needed something to get me going. That was probably why I came up with all these ridiculous things and came out with crazy things to get excited".
5. That was a reference to the online chatting with the undercover police officer. He told Dr Bench that he did not intend to meet up with the mother and daughter, however it seems from the evidence to which I have already made reference that the reason he did not is because he had not received a photograph or image of the child.
6. The offender has been in custody throughout the period since bail was refused. He was diagnosed with COVID-19 in January 2022. He described his recent mood as okay, a little bit anxious and said his libido is intact. Whilst he acknowledged that he used to fantasise about sex with children, he asserts that he no longer does. Dr Bench diagnosed an adjustment disorder with depressed and anxious mood in partial remission. That condition appears to be related to the cessation of the offender's employment in 2020.
7. Dr Bench expressed the opinion that the offender's paedophilic interests at the time of the offending "was the most significant factor contributing to his engagement in the index offences". He recommended the offender participate in the sex offender treatment program which I note he has not yet done due to conflicts between work times in custody and the availability of such programs.

Submissions

1. I am assisted by submissions from both the Crown and counsel for the offender MFI 1 and 2 respectively. There is not much by way of difference between the approach to sentencing contended for by the parties. It is conceded that the s 5 threshold is crossed and that the offender ought to be sentenced to imprisonment there being no other alternative sentence which would be reasonable in the circumstances.
2. It is further conceded that there should be some limited degree of accumulation in respect of the various offences. I acknowledge the offending represents a course of conduct over a period of just under two months. I accept the Crown's submission that deterrence is essential in cases such as this. It is also essential to make the offender accountable and to denounce the abhorrent conduct in which he engaged.

Objective seriousness

1. Whilst the Crown submitted, as Mr O'Sullivan submitted for the offender, that the fact that an actual child was not involved reduced the objective seriousness of the offending, I do not accept that submission.
2. I am mindful of the remarks by the Court of Criminal Appeal in the matter of R v Fuller [2010] NSWCCA 192 where McClellan CJ at CL with the other judges agreeing stated at [35]: "The sentencing judge identified the lack of an actual victim as a mitigating factor although an offence may be more serious when communication is made with an actual chid and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent on making communication with young persons for sexual purpose. Although the presence of a actual victim may aggravate the offence, the absence of a victim will not mitigate it".
3. I adopt that approach in this matter.
4. I also note the observations of Ward JA, as she then was, in the matter of Gifford v R [2016] 263 A Crim R 373 at [106] where her Honour stated: "It is clear from Fuller that this is a serious offence, whether or not the communications led to actual sexual activity. The fact that there was no meeting with the victim (and that CLC did not actually send the requested nude photograph) does not lessen the objective seriousness of the offence. It merely means that the potential harm is not greater than that contemplated by the offence itself. While I would not accept that the fact of there being no meeting had only peripheral relevance in the present case, it does not lead to the conclusion that there was error in the assessment of objective seriousness of the offence. There were (and were conceded to be) grossly sexual and indecent communications to teenage girls. The relevance of harm lay in the impact of the communications themselves."
5. Returning to the Crown submissions, MFI 1, it was submitted that the offending in respect of sequence 16, being count 1, fell just below or around the middle range of objective seriousness for offending of that type. The Crown relied upon the following factors in order to characterise the objective seriousness in that fashion: 1. the period of the offence, that is, just under two months; 2. the nature of the unlawful sexual activity; some reference has been made in my summary of the agreed facts to the nature of the sexual activity, the full details are set out in the statement of agreed facts. It is plain that what was contemplated, or at least discussed, was digital and penile penetration of the child as well as the child performing fellatio upon the offender. 3. the age of the child; in a provision that allows for the offence to be satisfied if the child is under the age of 14 years the fact that this child was just nine years of age is a relevant factor to determining the objective seriousness. 4. the applicant, that is, the offender envisaged participating with the mother and child in sexual activity with the child; 5. the fifth matter referred to by the Crown and adopted by me is the age gap between the offender, being 54 to 55 years of age, and the child, being just nine years of age.
6. I accept the characterisation of the objective seriousness provided by the Crown and find that in respect of sequence 16 it falls just below the midrange.
7. In respect of the offence on the Form 1 attaching to sequence 16, namely sequence 4, I also accept the Crown's submission that it falls at the lower end of the scale of objective seriousness.
8. Sequence 17, again an offence under s 66EB(2), picks up most of the matters considered in relation to sequence 16 and in addition the fact that a plan was in fact made to meet up with the mother and nine year old child, although it did not come to fruition. I accept the Crown's submission that it falls just below the midrange of objective seriousness.
9. Attaching to sequence 17 on a Form 1 is sequence 6 being inciting another to do a sexual act on a child under ten years of age. Having regard to the facts relating to that matter I find that it falls at the lower end of the scale of objective seriousness.
10. Sequence 18 is another s 66EB(2) offence and relates to the conduct of the offender on 18 November 2020. This offence occurred during part of a Skype chat the subject of other charges. The nature of the unlawful sexual activity is referred to in the facts and will not be repeated; I have had regard to that matter in determining the objective seriousness. The offender encouraged the mother to perform sexual acts upon her child. I have also had regard to the factors to which reference was made in respect of sequence 16 in concluding that the objective seriousness of sequence 18 is just below the midrange.

Aggravating and mitigating factors

1. The Crown submitted there were no aggravating factors; I accept that submission and make that finding.
2. In respect of mitigating factors the Crown conceded the absence of previous convictions, the fact that a person was of good character and the guilty plea as mitigating factors under s 21A(3) of the Act.
3. The question of remorse, which may also be a mitigating factor, is problematic in the sense that the offender expressed in his evidence regret for the offending, however, there is a sense of lack of insight into the offending portrayed both in his evidence and also in the history provided to Dr Bench. I do not accept that the offender realises the effects of his offending and what could have been the potential effects on a real child, had a real child been the subject of the offending.
4. In those circumstances, notwithstanding the fact that the offender has expressed regret and apologised, I decline to find as a mitigating factor remorse.
5. The Crown submitted there should be some partial accumulation between offences and in respect of sequences 14 and 18 the sentence should be concurrent; I accept that submission.

Submissions for the offender

1. I have read and had regard to the submissions on behalf of the offender, MFI 2.
2. I accept that the offender is to be sentenced for his conduct and the consequences of his conduct. I accept that in this case there were no deleterious consequences arising from the conduct as it involved a fictitious mother and child. For reasons I have already given I reject the submission by counsel for the offender that the objective seriousness is moderated by the fact that the offences involved a fictitious child.
3. In my opinion this is a case in which a finding of special circumstances ought to be made by reason of the following factors: 1. first time in custody; 2. his time in custody has been onerous by reason of the COVID‑19 virus; 3. he requires an additional period on parole in order to seek the treatment recommended by Dr Bench.

Sentence

1. I intend to impose an aggregate sentence. Before doing so I am required to provide indicative terms and, in offences which have standard non-parole periods, indicative non-parole periods. I do so as follows: 1. In respect of sequence 16, after a reduction of 25% for the guilty plea and taking into account sequence 4 on the Form 1, I provide an indicative term of three years imprisonment and an indicative non-parole period of one and a half years. 2. In relation to sequence 17, after a reduction of 25% for the guilty plea and taking into account sequence 6 on the Form 1 I provide an indicative term of three years imprisonment and an indicative non-parole period of 18 months. 3. In relation to sequence 14 I provide an indicative term of 12 months imprisonment and an indicative non-parole period of six months. 4. In relation to sequence 18 I provide an indicative term of two years imprisonment and an indicative non‑parole period of 12 months.
2. Mr Fisher, you are convicted of the offences to which you have pleaded guilty, namely, procuring a child under the age of 14 for unlawful sexual activity in breach of s 66EB(2) of the Crimes Act. You are further convicted of another offence of the same charge. Next you are convicted of intentionally inciting a child under the age of ten to sexually touch another in breach of s 66DA(c) of the Crimes Act 1900 and, lastly, you are again convicted of a further offence under s 66EB(2) of procuring a child under the age of 14 years for unlawful sexual activity.
3. In respect of those convictions you are sentenced to a term of imprisonment of five years commencing 20 November 2020 and expiring 19 November 2025. I impose an aggregate non-parole period of two and a half years commencing 20 November 2020 and expiring 19 May 2023.
4. Mr Fisher, do you understand the sentence? You will be eligible to be released on 19 May 2023.
5. Counsel for the offender submitted that, if available, the term of imprisonment could be served by way of an Intensive Corrections Order (ICO). I do not accept that submission. The nature of this offending is such that serving the sentence in the community would jeopardise community safety. Further, I find that the risk of reoffending is best addressed by way of a full-time custodial sentence.

I certify that the previous 106 paragraphs are an adapted version of the Remarks on Sentence of his Honour Judge D Wilson SC given in Gosford District Court on 18 March 2022. H Place Associate

Amendments 04 April 2022 - Typographical correction made 05 April 2022 - Cover page updated 05 April 2022 - [106] added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2022