Director of Public Prosecutions v Wesley Fischer

[2020] VCC 305

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT HORSHAM
CRIMINAL JURISDICTION

CR 19-02077

DIRECTOR OF PUBLIC PROSECUTIONS

v

WESLEY FISCHER

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Horsham
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2020
CASE MAY BE CITED AS:	DPP v Fischer
MEDIUM NEUTRAL CITATION:	[2020] VCC 305

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Carnal knowledge of a girl between 10 and 16 years – delay in complaint – marital relationship – good prospects of rehabilitation

Legislation Cited:     Sentencing Act 1991 (Vic) – Sex Offenders Registration Act 2004
Cases Cited:
Sentence:                 12-month adjourned undertaking;

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Redmond Casey, the Office of Public Prosecutions
For the Accused	Mr N. Graham

HIS HONOUR

1Mr Wesley Fischer, you have pleaded guilty to one charge of carnal knowledge of a girl between 10 and 16 years.  The indictment is drafted on a between dates basis being between 1 March 1978 and 31 March 1978. Further, the charge is a representative charge of your conduct between those dates.

2Your offending occurred some 42 years ago when you were aged 21 years. 

3The maximum penalty for this offence in your circumstances is 10 years' imprisonment.

4You are presently 63 years of age and are without prior or subsequent convictions of any kind.  Tendered as Exhibit A and read aloud in court was the summary of prosecution opening. 

5At the time of your offending the complainant was 14 years of age.  You are six years and seven months older than the complainant.  You first met the complainant when she was 13 years of age as each of your parents shared an interest in citizen band radio and were members of the local 'CB club.'

6You and the complainant quickly developed a relationship.   Around the end of 1977 or early 1978 when the complainant was 14 years of age her parents decided to move to Perth.  They told the complainant that they were only taking her younger brother with them and had signed papers with the school so she no longer had to attend.  As the complainant had nowhere to live your parents agreed to let her stay with your family.  The complainant was still aged 14 when she moved into your parents' home.

7Between 1 March 1978 and 31 March 1978 the complainant and you engaged in sexual intercourse from time to time,  as a result of which the complainant became pregnant.  In around July 1978 your parents decided that the complainant should live with her own parents in Perth.  The complainant travelled to Perth and moved in with her mother, father and younger brother.  After being in Perth for a week or two the complainant found out that she was pregnant.  On 4 December 1978 the complainant gave birth to your son, Carl Fischer. 

8While residing in Perth the complainant stayed in regular contact with you and you both considered that you were still in a relationship.  Five months after giving birth to your oldest boy Carl the complainant moved back to Horsham and continued her relationship with you.  On 24 November 1979 when the complainant was aged 16 you and she were married in Horsham.

9You and the complainant went onto have two more children during the course of your marriage, your second son being born on 9 November 1980 and your third son being born on 27 January 1983.  You and the complainant remained married until approximately January 1988.

10On 2 June 2017 some 27 years or so after the breakdown of your marriage the complainant made a statement to the police.  On 23 June 2017 you were interviewed under caution, during which your attitude could be described as churlishly uncaring.

11On 5 November 2018 pursuant to an order of the court you provided a forensic sample for DNA analysis.  Following the outcome of the DNA analysis you were charged on 15 April 2019.  The matter resolved as a plea on or about
16 October 2019 at a committal mention.  Accordingly your plea must be regarded as being entered at an early stage and you are entitled to the benefits that flow to you from your plea, namely that it is some evidence of your remorse and that it has utilitarian benefit.  Upon sentence you will become subject to the provisions of the Sex Offender Registration Act 2004 (the Act), for a period of 15 years.

12The complainant provided a victim impact statement to the court.  She laments, with justification, the loss of her teenage years and the free life others experienced in their early twenties.  From the age of 14 or 15 she was a mother and took on the responsibility of a child as a child.  She was married at 16 and had two further children from whom she appears to be estranged. This loss of the freedom of youth because of your exploitation of her youth has marked her life until the present time and will do so into the future.

13Mr Graham, solicitor who appeared on your behalf, emphasised the delay in bringing this prosecution and the blameless life that you have lived from the age of 21 to your now 64th year.

14During the between dates on the indictment your father became concerned about the complainant's abandonment by her parents.  Your father located the complainant’s parents via the Salvation Army and organised for the complainant to travel to Western Australia and her reconciliation with her parents.  As I have earlier stated you remained in contact with the complainant and each of you regarded your relationship as still on foot despite her being in Western Australia.

15Sometime after the complainant travelled to Western Australia and subsequent to the birth of your first son you hitchhiked to Perth and remained there for a few weeks to visit the complainant and your son.  Sometime thereafter the complainant returned to Horsham and later you married.

16Mr Graham on your instructions painted a very different picture to that represented in the victim impact statement.  You and your wife, the complainant, married with her parents' reluctant permission when she was 16.  The marriage lasted something in excess of eight or nine years and two further children were born of the marriage.  To your mind the marriage was a happy one and tendered as Exhibit 1 were photographs from your wedding and family photographs depicting a happy mother and children.  It must be recognised that these images are but snapshots in time but represent to my mind two people making the best of their lot in life.

17Further Mr Graham informed me that it was not until some weeks immediately prior to the complainant taking the three children away from the family home that you became aware of a change in your wife's general demeanour, now in hindsight consistent with depression.  Mr Graham submitted upon instructions that contrary to the contents of the victim impact statement your wife returned the three children to you approximately a month after she had separated from you and at the time she indicated to you that she was unable to cope with the three children.  From that time you were the sole carer for your three sons and the complainant had no further contact with the children.

18In respect to the allegation in the victim impact statement that shortly after separation you took the three children away from her and to Queensland,
Mr Graham submitted upon instructions that you did take the three children to Queensland but that this trip occurred some 16 months after separation. You were away from Horsham for approximately 4 months and returned and have lived in the matrimonial home in Drung ever since. 

19Since leaving school you have always worked, initially on your parents' farm and thereafter as a motor mechanic for some years although you have no formal qualifications in that trade. 

20For the last 23 years you have operated a successful glass tinting business.  The mandatory application of the provisions of the Sex Offender Registration Act for a period of 15 years in respect of you is likely to have an adverse effect on your business.  As an example, one of your more recent jobs was at a school.  This type of work in all probability will be unavailable to you in the future.

21In the unusual circumstances of this case it is unfortunate that sentencing judges do not have a discretion to exempt certain offenders from the application of the Act.  If there were such a discretion in all likelihood I would have exercised it in your favour. 

22You have had three relationships in your 63 years.  The second relationship produced two children, both daughters, being Charlie aged 20 who resides with you and Erica aged 16.  You are presently in a relationship of 10 years standing and enjoy a loving relationship with your partner's daughter and her children who refer to you as 'grandpa Wes', see Exhibit 2, a bundle of references.

23In the balance of the references you are described as respectful, caring and supportive of others and in particular your children and grandchildren of which there are 12 aged between three and 17 years. 

24As a young man you entered into a forbidden relationship with a 14 year old girl.  The pair of you subsequently married and lived as a married couple for something in excess of eight or nine years during which two further children were born to the marriage.  Some 29 years after separation and in light of all that had passed, the complainant went to the police and you were subsequently charged.  Now some 42 years after the event you come before the court as a man of mature years and of impeccable character.

25You entered your plea at the earliest opportunity.  In my view there is no prospect that you will reoffend in any way in the future.  In my opinion the delay of 42 years when combined with your conduct during those years and my assessment of your prospects of reoffending, despite the seriousness of your offending, move me to place you on an adjourned bond without conviction for a period of 12 months.  Are you prepared to enter into such an undertaking?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  Then my associate will prepare that document and I will have you sign it in due course, and I will also.  In addition the order of the court will be signed and made available to the Crown and to Mr Graham so that you have access to a copy of the court order setting out my order today.

28What is going to happen, Mr Fischer is this, that my associate Mr Kelly will bring you two documents.  The first one is the adjourned undertaking and it is for you to sign so that you understand that it is for a period of 12 months, that you must be of good behaviour during the period of the undertaking and that you just attend before the court if called on to do so during the period of the adjournment.

29The second set of documents is a set of documents that relates to your obligations under the Sex Offender Registration Act.  You are asked to sign the last page merely as an acknowledgment that you have received these documents.  So Mr Kelly will bring those to you now.  Do you wish to assist your client in respect to this matter, Mr Graham.

30MR GRAHAM:  Yes, Your Honour.

31HIS HONOUR:  I have signed the order of the court and what will happen now is that Mr Kelly will make two copies of each of those documents, one for the Crown and one for Mr Graham on your behalf.  If you could copy those now please, Mr Kelly.

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