FAJ v The Queen

[2011] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0085

FAJ	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 March 2011
DATE OF JUDGMENT	13 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 137
JUDGMENT APPEALED FROM	R v FAJ (Unreported, County Court of Victoria, Judge Rizkalla, 5 March 2010)

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CRIMINAL LAW – Sentence – Multiple counts of indecent act with a child under 16 and sexual penetration of a child aged between ten and 16 – Admissions and pleas of guilty – Sentenced to total effective sentence of imprisonment for six years and six months – Non parole period of three years – Whether sentencing judge treated representative counts as rolled up counts – Whether sentences manifestly excessive – Whether sentences on representative counts inconsistent with those imposed for discrete counts – Totality – Aggravating features – R v Jones [2004] VSCA 68, R v CJK (2009) 22 VR 104, R v Abbott (2007) 170 A Crim R 306 and DPP v OJA (2007) 172 A Crim R 181 applied – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Anthony Isaacs, Criminal Lawyer
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I have had the advantage of reading in draft the reasons for judgment of Harper JA.  For the reasons his Honour gives, I too would dismiss the appeal.

WEINBERG JA:

1. I agree with Harper JA.

HARPER JA:

1. At the beginning of the year 2000, the appellant was employed as the manager of a suburban supermarket.  He was then 33 years old. 

1. At the same time, three boys, two aged 15 and one aged 14, were employees of the supermarket.  The appellant was their manager, while they were students, employed on a casual basis.  He was therefore their senior in age and in status.  He stood in a position of trust in relation to them.  Between New Year’s Day and the following 17 March, however, he committed with each of them numerous acts of indecency and sexual penetration.

1. The appellant was interviewed by the police nine years later, on 29 January 2009.  He made full admissions, and was subsequently presented on nine counts.  Counts 3, 6 and 9 – each of which allege sexual penetration of a child under the age of 16 – were pleaded as single occasions of offending.  Each of the six remaining counts were pleaded as being representative.  Counts 1, 4 and 7 alleged that the appellant took part in an indecent act with a child under the age of 16.  Counts 2, 5 and 8 alleged the sexual penetration of a child under that age.  At the time of their commission, each offence carried a maximum penalty of 10 years’ imprisonment.     

1. The first complainant, to whom I shall refer as AB, recalls an evening during which he and the other two complainants (CD and EF) were in…