Fowles v The Queen - [2011] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0254
GREGORY BARRY FOWLES	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HANSEN JA and WHELAN and ROSS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2011
DATE OF JUDGMENT:	19 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 206
JUDGMENT APPEALED FROM:	DPP v Fowles (Unreported, County Court of Victoria, Judge Pullen, 15 July 2010)

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CRIMINAL LAW – Sentence – Six counts of indecent assault – Two adult victims – Co-workers – Crown concession total effective sentence of four years’ imprisonment with non-parole period of two years manifestly excessive – Re-sentenced to total effective sentence of 27 months’ imprisonment with non-parole period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R McCloskey with Mr J Tran, solicitor	Coolabah Law Chambers
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

I will ask Whelan AJA to deliver the first judgment.

WHELAN AJA:

On 15 July 2010 the appellant was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years for six offences of indecent assault. The appellant was granted leave to appeal these sentences on 18 February 2011.

The offences concerned assaults by the appellant upon two adult female co-workers. At the time of the assaults the appellant was employed as a chef at an hotel.

I do not intend to go through the facts relevant to the offences or to go through the various matters relevant to mitigation because on the hearing of the appeal it was accepted that, with one minor possible qualification, the sentencing judge had set out all of the relevant matters in her reasons for sentence, and that she had not overlooked anything or mischaracterised anything.

The possible qualification concerned the sentencing judge’s description of one offence. The description she gave in her reasons did not precisely reflect the particular victim’s evidence-in-chief, although counsel for the appellant told the Court on the hearing of the appeal that the sentencing judge’s description was consistent with the evidence of the victim in cross-examination. In any event, nothing turns upon that difference.

Counsel for the Crown conceded that there had been sentencing error. On each of the six counts, a sentence of 16 months’ imprisonment had been imposed which, after directions as to concurrency and cumulation, resulted in the total effective sentence already referred to. In the Crown’s written submission, the concession was made that the sentence was manifestly excessive. A table of sentences for the offence of indecent assault committed upon an adult imposed in

the County Court in the period 2008 – 2010 was produced by the Crown. That table revealed that a majority of offenders were not sentenced to an immediate term of imprisonment. A copy of that table is annexed to these reasons. In oral submissions, counsel for the Crown submitted that it had also been an error to impose the same sentence on all six offences when…

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 Fowles v The Queen

Details

AGLC: Fowles v The Queen [2011] VSCA 206
Case: [2011] VSCA 206
Decision Date: 19 July 2011

CaseChat Overview and Summary

The case of Fowles v The Queen involved the defendant, Fowles, who was convicted on six counts of indecent assault against two adult victims, who were his co-workers. The matter was heard in the High Court of Australia. The primary focus of the appeal was the appropriateness of the sentence handed down by the lower court, which the Crown later conceded was manifestly excessive.

The court was required to determine whether the original sentence of four years’ imprisonment with a non-parole period of two years was appropriate given the circumstances of the case. The legal issues included the principles of sentencing in criminal law, particularly those relating to indecent assault, and whether the original sentence was disproportionate in light of the Crown’s concession. The court also needed to consider the principle of parity in sentencing, ensuring that similar offences are treated similarly unless there are compelling reasons for variation.

The High Court found that the original sentence was indeed manifestly excessive. The court emphasised the importance of proportionality and the need to avoid unnecessary hardship on the defendant. It noted the Crown’s concession and the principle that the total effective sentence should reflect the seriousness of the offence while also taking into account any mitigating factors. The court re-sentenced Fowles to a total effective sentence of 27 months’ imprisonment with a non-parole period of 15 months, finding this to be a more appropriate reflection of the seriousness of the offences and the need for general deterrence and denunciation. The court’s decision highlights the importance of judicial review in ensuring that sentences are fair and proportionate.

Orders