CRIMINAL LAW – Appeal – Sentence – Child sexual offending (6 charges, 4 victims) – Common assault (adult victim) – Child complainants aged between 8 and 16 – Representative charges of carnal knowledge – Pleas of guilty – Total effective sentence 17 years and 4 months’ imprisonment, non-parole period 13 years – Whether manifestly excessive – Predatory conduct over six years – Grooming – Breaches of trust – Violence – Very high culpability – Severe and permanent harm to victims – Limited mitigation apart from applicant’s age – Limited relevance of prior good character – Sentences within range – Leave to appeal refused – Sentencing Act1991 s 5AA.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr M Phillips
Victoria Legal Aid
For the Respondent
Ms G A Coghlan
Ms A Hogan, Acting Solicitor for Public Prosecutions
MAXWELL P
KAYE JA:
The applicant pleaded guilty in the County Court to six charges of sexual offending, and one charge of common assault. The offences were alleged to have been committed in the period between 1976 and 1982. He was sentenced to a total effective term of 17 years and 4 months’ imprisonment, with a non-parole period of 13 years.
That sentence was comprised as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Carnal knowledge of a girl of or above the age of 10 and under the age of 16, contrary to Crimes Act 1958 s 48(1)
(Representative charge)
10 years
6 years and 6 months
3 years and 6 months
2
Indecent assault of a female, contrary to Crimes Act 1958 s 55(1)
10 years
4 years
1 year
3
Indecent assault of a female, contrary to Crimes Act 1958 s 55(1) & (3)
10 years
4 years
1 year
4
Gross indecency with a girl under 16, contrary to Crimes Act 1958 s 69(1)(a) & (b)
2 years
10 months
6 months
5
Carnal knowledge of a girl under the age of 10, contrary to Crimes Act 1958 s 46
(Representative charge)
20 years
10 years
Base
6
Common assault contrary to common law
At large
18 months
10 months
7
Indecent assault, contrary to Crimes Act 1958 s 44(1)
5 years
18 months
6 months
Total Effective Sentence:
17 years and 4 months’ imprisonment
Non-Parole Period:
13 years’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:
731 days
6AAA Statement: 21 years’ imprisonment with a non-parole period of 17 years’ imprisonment
Other relevant orders:
· Pursuant to s 6F, sentenced as a Serious Sexual Offender in respect of charges 1, 2, 3, 4, 5, 7
· Forensic sample order
· Life…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fichtner v The Queen [2019] VSCA 297
Case
[2019] VSCA 297
Decision Date
CaseChat Overview and Summary
In the case of Fichtner v The Queen, the appellant was convicted of multiple charges related to child sexual offences and a common assault against an adult. The appellant pleaded guilty to six charges involving four victims, all of whom were children aged between 8 and 16 years. The court sentenced the appellant to a total effective term of imprisonment of 17 years and 4 months, with a non-parole period of 13 years. The appellant sought leave to appeal against the severity of the sentence.
The central legal issue was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was unduly harsh, considering his age and the availability of limited mitigating factors. The court had to consider the severity of the crimes, the nature of the offending which involved predatory conduct over a six-year period, the use of grooming and breaches of trust, the use of violence, and the very high culpability of the appellant. The court also weighed the severe and permanent harm caused to the victims and the limited mitigating factors presented.
The court found that the sentence was within the appropriate range for the crimes committed. The appellant's conduct was predatory, involving multiple victims over an extended period. The court recognised the severity of the harm caused and the high culpability of the appellant. While the appellant's age and prior good character were considered, they were found to be of limited relevance. The court concluded that the sentence was not manifestly excessive and refused leave to appeal. The decision was made under the provisions of the Sentencing Act 1991.
No specific orders were made beyond the refusal of leave to appeal against the sentence.