STATE OF TASMANIA v JAMES MICHAEL FITCH 29 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
James Fitch, you plead guilty to two counts of rape, two counts of involving a person under the age of 18 in the production of child exploitation material, one count of indecent assault and one count of production of child exploitation material. Your crimes were committed between November 2018 and February 2019 against three young women all of whom you contacted using the internet on the social media platform Snapchat. You were aged 33 at the time. Snapchat allows communication of videos, photographs or text with other users who agree to a “friend” request. In the normal course, communications on Snapchat are temporary and disappear after a limited time. You created multiple accounts using false names and identities, both male and female. You used these false accounts to trick young women into communicating with you. Initially unknown to the victims, you had installed a recording program on your phone which allowed you to covertly record the images you were sent without the knowledge of the sender. Through cruel and calculated psychological pressure and intimidation, mostly threats of disclosure of the images you had secretly recorded, you forced them to create more sexual images or perform sexual acts with you.
Your first victim was then aged 13. I will call her Peta. Peta agreed to your Snapchat friend request initially believing you were a school friend. When she realised that was not so, you pretended to be a boy aged about 18. Knowing her age you, after a time, asked her to send nude images. She initially refused but eventually was persuaded by your persistent requests. What then occurred is the basis of the first count of involving a young person in the production of child exploitation material. On consecutive nights she sent images of her breasts. When she declined to send more images you pressured her by threatening that you would harm yourself by overdose or cutting if she did not agree. You made threats that you would kill yourself. You sent photos of your erect penis. She relented and sent a further image of one of her breasts. You sent more images of your erect penis. When she told her friend what was happening she was referred to the school counsellor and the police were notified.
Your second victim was aged 16. I will refer to her as Kaitlyn. Kaitlyn did not know you but agreed to your Snapchat friend request made under the false name and identity of George Johnson, a 19 year old male. After a time you introduced sexualised language and suggestions into the conversations which then progressed to general and specific requests for pictures and videos of an explicit nature. She sent images of her naked breasts, bottom and vagina including of her masturbating which you secretly recorded on your mobile phone. That is the second count of involving a person under the age of 18 years in the production of child exploitation material. By means of a separate identity, this time a female named Lily Jones, you suggested to Kaitlyn that George Johnson had provided travel and money in return for sexual favours. When Kaitlyn became concerned and ceased contact you used the Lily Jones character to threaten that George Johnson would punish her if she did not agree to do as he said. You then threatened to post her nude pictures on line unless she sent a video of her breasts. You then informed her that she must perform sexual acts with another man or you would publish the images. You demanded that she meet this man at a park near a rural town. For fear that the images would be published, and believing that she had no choice, she complied. Pretending to be someone else you met her and, knowing her age, you insisted that George Johnson required that she perform oral sex on you. You took her to a public toilet where she did so until you ejaculated. That is the first count of rape. You then required her to allow you to lick her vagina. That was a sexual assault. You filmed the sexual acts on your mobile phone. That is the basis of the charge of producing child exploitation material. Even after Kaitlyn left the park and went home, you, as George Johnson, sent her a message via mobile phone indicating that she had not complied with your direction to have vaginal sexual intercourse with the man and that she would have to meet again for that purpose, including with a sex toy. You again threatened publication of the images unless she complied. In panic Kaitlyn told a friend, and her mother and the police were notified.
Your third victim was aged 17. I will call her Lisa. Again, she did not know you but agreed to your Snapchat friend request made in the name Lily Jones. As Lily Jones you told her that you knew someone, a John Seymour, who would pay her a large amount of money for nude photos and videos. Posing as John Seymour you persuaded her that you could help her ambitions to be a model which would be enhanced by more erotic photographs. You pretended to organise a photo shoot but told her that you wanted her to have sex with the photographer and film it. You offered her increasing amounts of money as an inducement, eventually $120,000 for which she would also “suck the photographer’s penis.” She agreed. You arranged for her to attend at an appointed time at a reserve near Launceston. You promised to pay half the money once she arrived. You sent her a photo of a document purporting to be a bank transfer. You then turned up posing as the photographer. You persuaded her to remove her clothing and be photographed. You rubbed oil on her. After travelling to a different location you persuaded her to masturbate in the water for the purposes of the photographs. You then told her that John Seymour had said she had to suck his penis. She complied and you filmed it on your phone. You were not wearing a condom and you ejaculated into her mouth. That is the second count of rape. Two days later you, as John Seymour, sent her an image of a transfer of the remaining $60,000. In fact, both bank transfers were forged by you with the intention of inducing her to participate in the sex acts you demanded. You later falsely claimed the photographs you took were accidentally destroyed and that another photoshoot would be required. When she refused you offered first offered more money, then demanded that unless she had sex with a man of your choice or you would punish her by publishing the photos on Facebook and to her parents. She reported the matter to the police.
You were identified by photoboard and when the Snapchat accounts were traced to you. Your home was searched in March 2019. The police found the phone with the saved communications and images and the memory card with the photographs. Once you were charged you quickly indicated that the factual allegations were not disputed. Some delay occurred while legal analysis was undertaken to determine the proper charges to be prosecuted. Your bail was voluntarily revoked on 9 May 2019 and you have been in custody since then.
You are now aged 35. Your prior convictions are limited to driving offences. You were married with one child of whom you were the primary carer. You became socially isolated and faced psychological difficulty, but no mitigation arises from that for crimes as abhorrent as these. Your relationship is now ended and you have not seen your child since going into custody. Your early admissions and plea of guilty are the only mitigating matters. By pleading guilty you have facilitated justice. More importantly, the complainants became aware at an early stage that they would not be required to suffer the anxiety, indignity and humiliation of having to give evidence or fear that they would not be believed. As a result of the plea I will reduce the head sentence and allow the earliest eligibility for parole.
I take into account the matters referred to in s 11A of the Sentencing Act 1997 to the extent that they are relevant. You did not resort to actual or threatened force to achieve your aims, but your crimes were calculated, cruel and predatory. You went to considerable lengths to deceive and manipulate these young women, taking advantage of their youth and vulnerability. The anguish you caused must have been especially traumatic. For one of your victims you created the terrible dilemma of having to choose between disclosure of the images you tricked her into sending or participation in sexual acts. Having taken advantage of that dilemma in the most degrading and heartless way, you almost immediately tried to do so again. For another you tricked her into sexual acts, again in a most humiliating and degrading way, before again attempting to take advantage of the threat of the publication of images. The filming of these sexual acts was especially demeaning. I have impact statements from two of them which describe the terrible psychological effect your crimes have had on them. Those impacts are likely to be lifelong. I have no impact statement from Kaitlyn, but the nature of your conduct towards her was such that the psychological damage you inflicted is likely to be profound.
The only appropriate sentence is a very substantial term of imprisonment. Before allowance for totality and the pleas of guilty I would have imposed the following separate sentences. For the crime committed against Peta, I would have imposed a term of imprisonment of one year. For the crimes against Kaitlyn I would have imposed a term of imprisonment of 5½ years. For the crimes against Lisa I would have imposed a term of imprisonment of 4 years. The final sentence I impose is to be a just reflection of the totality of your criminal conduct. A modest reduction is to be made for totality, but it is also important to vindicate and reflect the separate harm done to each victim, reflect your overall criminality and to make clear to you and others the likely consequences of conduct of this nature.
James Fitch, you are convicted on each count. I order that the Samsung Galaxy mobile phone and the Lexar 32 GB memory card seized during the search of your home on 14 March 2019 are forfeited to the State. I make an order under the Community Protection (Offender Reporting) Act 2005 directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for a period of 15 years from your release. I impose one sentence. You are sentenced to imprisonment for 9 years from 9 May 2019. I order that you not be eligible for parole until you have served half of that term.