Fisher (a pseudonym) v The King - [2025] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0175

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

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms.

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 25
JUDGMENT APPEALED FROM:	[2024] VCC 957 (Judge Murphy)

APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sexual penetration of child under 16 years – Total effective sentence 4 years’ imprisonment – Non-parole period 2 years and 3 months – Whether sentence was manifestly excessive particularly considering Bugmy –Offending objectively serious – Powerful mitigating features including mental impairment, difficult childhood, early guilty plea and remorse – Arguable that head sentence is beyond range – Leave to appeal granted.

Bugmy v The Queen (2013) 249 CLR 571, considered; R vVerdins (2007) 16 VR 269, referred to.

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Counsel
Applicant:		Ms B J Goding
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

The applicant pleaded guilty in the County Court at Ballarat to one charge of sexual penetration of a child under the age of 16 years. He was sentenced in accordance with the table below.

Charge on indictment

Offence

Maximum Penalty

Sentence

Cumulation

1 Sexual penetration of a child under 16 years[2] 15 years’ imprisonment 4 years’ imprisonment N/A

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 3 months’ imprisonment

Pre-sentence Detention Declared: 194 days

Section 6AAA Statement: Total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years

Other relevant orders
1. Forfeiture of property in schedule.

2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is 15 years.

[2]Contrary to s 49B(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

The applicant seeks leave to appeal against this sentence.[3] The solitary ground of appeal is 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.
[3]An application for an extension of time in which to lodge notice of application for leave to appeal was granted administratively.

Circumstances of the offending

The circumstances of the offending were accurately set out by his Honour in his careful sentencing remarks. No dispute is taken with them in this application. I shall reproduce his Honour’s remarks concerning those circumstances:
In late November 2023 and early December 2023 you were having difficulties in your marriage. You had separated from your wife and moved out…

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 25
Case: [2025] VSCA 25
Decision Date: 6 March 2025

CaseChat Overview and Summary

The case before the court involved Fisher, who was appealing against his sentence for sexually penetrating a child under the age of 16. The trial judge had sentenced Fisher to a total effective term of four years imprisonment, with a non-parole period of two years and three months. Fisher sought leave to appeal, arguing that the sentence was manifestly excessive, particularly in light of the decision in Bugmy v The Queen. Fisher contended that while his offending was serious, there were powerful mitigating factors, including his mental impairment, difficult childhood, early guilty plea, and remorse, which warranted a lesser sentence.

The court was required to consider whether the sentence was manifestly excessive and whether the head sentence was beyond the range of appropriate sentences for the offence committed. The court needed to weigh the seriousness of the offence against the mitigating factors presented by Fisher. The court had to determine if the mitigating factors were so compelling that they warranted a reduction in the sentence, particularly in light of the Bugmy decision, which emphasised the need to consider the individual circumstances of the offender.

The court acknowledged the seriousness of Fisher's offending but found that the mitigating factors presented a strong case for a reduction in the sentence. The court noted that Fisher's mental impairment, difficult upbringing, early guilty plea, and remorse were significant mitigating factors that warranted consideration. The court found that the sentence imposed was arguably beyond the range of appropriate sentences for the offence committed, taking into account the Bugmy decision. Consequently, the court granted leave to appeal, allowing Fisher to challenge the sentence on the basis that it was manifestly excessive.

The court ordered that leave to appeal be granted, and the case was remitted to the Court of Appeal for further consideration of the sentence. The court emphasised the importance of considering the individual circumstances of the offender, particularly in light of the Bugmy decision, and directed that the appeal be heard with due regard to the mitigating factors presented by Fisher.

Orders