Fisher (a pseudonym) v The King - [2025] VSCA 131

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0175

PETER FISHER (A PSEUDONYM)[1]	Appellant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	NIALL CJ and JANE DIXON AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2025
DATE OF JUDGMENT:	12 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 131
JUDGMENT APPEALED FROM:	[2024] VCC 957 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 years – Total effective sentence 4 years’ imprisonment – Non‑parole period 2 years and 3 months – Whether sentence manifestly excessive considering Bugmy – Offending objectively serious – Powerful mitigating factors including mental impairment, childhood deprivation, early guilty plea and remorse – Head sentence is beyond range – Appeal allowed – Resentenced to 3 years’ imprisonment and a non‑parole period of 18 months.

Crimes Act 1958, s 49B(1).

Bugmy v The Queen (2013) 249 CLR 571; Bouris v The Queen [2021] VSCA 245; DPP v Nwigwe [2022] VSCA 14; DPP v Spottiswood [2021] VSCA 146; Roberts v The King [2023] VSCA 92, considered.

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Counsel
Appellant:		Ms BJ Goding
Respondent:		Mr J Shaw
Solicitors
Appellant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ

JANE DIXON AJA:

On 20 June 2024 in the County Court at Ballarat the appellant pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.[2] On 24 June 2024, he was sentenced to 4 years’ imprisonment. A non‑parole period of 2 years and 3 months was set. The maximum prescribed penalty for the offence is 15 years’ imprisonment. It is a standard sentence offence, with the standard sentence being a term of imprisonment of 6 years.
[2]Contrary to s 49B(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
Pursuant to a grant of leave to appeal, the appellant advances a single ground of appeal, expressed as follows:
The sentence imposed on charge 1 and the non‑parole period are manifestly excessive in all the circumstances, and particularly in light of the application of the principles in Bugmy v The Queen (2013) 249 CLR 571.

Circumstances of the offending

The circumstances of the offending were set out by the judge in his sentencing remarks.[3] In his reasons for granting the application for leave to appeal against sentence, T Forrest JA reproduced those remarks in full.[4] A very brief precis follows.
[3]DPP v Fisher (a pseudonym) [2024] VCC 957, [4]–[13] (Judge Murphy) (‘Reasons’).
[4]Fisher (a pseudonym) v The King [2025] VSCA 25, [3] (T Forrest JA).
At the time of the offence, the appellant was nearly 28 and a half years old; the complainant was 13 years of age and was in residential care. The…

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.

Continue reading Fisher (a pseudonym) v The King

Details

AGLC: Fisher (a pseudonym) v The King [2025] VSCA 131
Case: [2025] VSCA 131
Decision Date: 12 June 2025

CaseChat Overview and Summary

The appeal before the court was brought by Fisher, referred to as a pseudonym, against The King, the respondent. The appeal concerned the sentence imposed on Fisher for the crime of sexual penetration of a child under 16 years. Fisher had been sentenced to a total effective sentence of four years' imprisonment, with a non-parole period of two years and three months. Fisher contended that the sentence was manifestly excessive, especially in light of the case of Bugmy v The Queen. The court was required to determine whether the sentence was manifestly excessive and whether the offending was objectively serious, while also considering the powerful mitigating factors presented.

The court noted that the offending was objectively serious but acknowledged the significant mitigating factors presented, including Fisher's mental impairment, childhood deprivation, an early guilty plea, and remorse. The court considered the relevant cases of Bugmy v The Queen, Bouris v The Queen, DPP v Nwigwe, DPP v Spottiswood, and Roberts v The King. The court found that the head sentence was beyond the range of sentences typically imposed for such offences. The court was persuaded that the sentence was manifestly excessive, taking into account the mitigating factors.

The appeal was allowed, and Fisher was resentenced to three years' imprisonment, with a non-parole period of 18 months. The court determined that this sentence was more appropriate, considering all the circumstances of the case and the principles set out in Bugmy v The Queen. Fisher's appeal was thus successful, resulting in a reduced sentence that more accurately reflected the mitigating factors present in this case.

Orders