R v Fidler - [2006] VSCA 17

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 122 of 2005

THE QUEEN

v.

BENJAMIN JOHN FIDLER

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JUDGES:

CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

6 February 2006

DATE OF JUDGMENT:

7 February 2006

MEDIUM NEUTRAL CITATION:

[2006] VSCA 17

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Criminal Law – Sentence – Rape and Indecent assault – Sentence of 4 ½ years, non parole period of 2 ½ years not manifestly excessive – Protection of the community – Specific deterrence – Whether affected by reporting conditions imposed under Sex Offenders Registration Act 2004 – Sentencing Act 1991, s.5(2BC).
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APPEARANCES: Counsel Solicitors

For the Crown Mrs C. Quin S. Carisbrooke Acting
Solicitor for Public Prosecutions

For the Applicant Mr G. Meredith Victorian Legal Aid

CHARLES, J.A:

On 2 February 2005 the applicant pleaded guilty in the County Court at Bendigo to a presentment alleging two counts of indecent assault (Counts 1 and 3) and one count (Count 2) of rape. He admitted two prior convictions driving offences. On 29 April 2005 he was sentenced on Counts 1 and 3 to 12 months' imprisonment and on the count of rape to three years and six months' imprisonment. Cumulation of six months was ordered in relation to each of Counts 1 and 3, making a total effective sentence of four years and six months. The judge fixed a non‑parole period of two years and six months. The maximum penalties for the offences were for rape 25 years and for indecent assault ten years' imprisonment respectively.
The applicant sought leave to appeal against sentence and on 16 September his application under s.582 of the Crimes Act 1958 for leave to appeal was dismissed. He elected to appeal to this Court, and now seeks leave to appeal on the grounds that:
1.The sentence on Count 2, the total effective sentence and the non‑parole period are manifestly excessive.
2. The judge erred in failing to have regard to the likelihood that the conditions imposed under the Sex Offenders Registration Act 2004 (“the S.O.R. Act”) reduced the risk of reoffending and, as a result, the weight to be accorded to protection of the community and specific deterrence.
The facts giving rise to these offences were as follows. The victim (M) in July 2003 began working for the first time at a country restaurant, he then being 16 years' old. He met the applicant who was working as a cook and who befriended him. M told the applicant that he was 16 and the applicant asked M if he would "root a 22‑year‑old woman". When M said that he would, the applicant said that he would arrange for M to have sex with such a woman "free of charge". The next week the applicant told M that he had arranged a woman for him on a particular night, and when they finished work at the restaurant he and M left the restaurant on foot. The applicant told M that he should masturbate before having sex…

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 R v Fidler

Details

AGLC: R v Fidler [2006] VSCA 17
Case: [2006] VSCA 17
Decision Date: 7 February 2006

CaseChat Overview and Summary

The case of R v Fidler involved the appellant, who was convicted of rape and indecent assault. Fidler appealed against the sentence imposed by the trial judge, arguing that the sentence of 4 ½ years, with a non-parole period of 2 ½ years, was manifestly excessive. The matter was brought before the court, which was required to determine whether the sentence was appropriate under the circumstances, and whether it was affected by the reporting conditions imposed under the Sex Offenders Registration Act 2004.

The primary legal issue before the court was whether the sentence and non-parole period were manifestly excessive, taking into account the need for specific deterrence and the protection of the community. The court needed to consider the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing as outlined in the Sentencing Act 1991. Additionally, the court had to examine the effect of the reporting conditions on the sentence and whether they were relevant to the assessment of the sentence's excessiveness.

The court found that the sentence and non-parole period were not manifestly excessive, as they appropriately balanced the need for specific deterrence, the protection of the community, and the appellant's individual circumstances. The court noted that the reporting conditions did not impact the assessment of the sentence's excessiveness, as they were not a form of punishment but rather a means of ensuring public safety. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court. The sentence and non-parole period imposed by the trial judge remained in place.

Orders