William John Fleming v The Queen
[2016] VSCA 242
•7 October 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0135
| WILLIAM JOHN FLEMING | Applicant |
| v | |
| THE QUEEN | Respondent |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
---
| JUDGES: | WEINBERG JA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | No oral hearing | |
| DATE OF JUDGMENT: | 7 October 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 242 | 1st revision: 10 October 2016, [19] |
| JUDGMENT APPEALED FROM: | DPP v Fleming (Unreported, County Court of Victoria, Judge M P Bourke, 14 April 2016) | |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Indecent assault of a female under 16 – Carnal knowledge of a girl under 10 – Total effective sentence of three years and six months’ imprisonment with a non-parole period of 18 months – Whether failure to take appropriate account of applicant’s age at time of offending – Whether manifest excess – No reasonable prospect of sentence imposed being reduced – Leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
The applicant, now aged 66, pleaded guilty in the County Court at Melbourne to six charges of indecent assault of a female (charges 1, 2, 4, 5, 6 and 7). These charges were brought pursuant to ss 55(1) and (2) of the Crimes Act 1958 (pre-dating the amendments introduced by the Crimes (Sexual Offences) Act 1980). He also pleaded guilty to one charge of carnal knowledge of a girl under the age of 10 years (charge 3). That charge was brought pursuant to s 46 of the Crimes Act 1958 (also pre-dating the amendments introduced by the Crimes (Sexual Offences) Act 1980).
The victims of the applicant’s offending were three of his younger sisters, DG, PW and JM. The events that gave rise to these charges all took place between 1966 and 1974.
The applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1. Indecent assault
(DG)
3y 3m - 2. Indecent assault
(DG)
3y 9m 4m 3. Carnal
knowledge girl under 10 (PW)
20y 2y 6m Base 4. Indecent assault
(JM)
5y 12m 4m 5. Indecent assault
(DG)
5y 6m - 6. Indecent assault
(JM)
5y 12m 4m 7. Indecent assault
(PW)
5y 8m - Total Effective Sentence 3 ½ y Non-parole period 18 m Pre-sentence detention declared: Nil s. 6AAA statement: 6 y, NPP 4y Other relevant orders: s. 464 ZF sample order.
Sex Offender Registration Act registration for life.
The proposed grounds of appeal
By notice dated 18 July 2016 the applicant seeks leave to appeal against sentence on the following grounds:
1.The judge erred in failing to give appropriate effect to the fact of the appellant’s age at the time of the offences: the learned sentencing judge did not give effect to the fact that if the appellant had been sentenced at the time of the offences, he would have been sentenced as a child or a young offender.
2.The individual sentences, the total effective sentence and the non-parole period are manifestly excessive and offend the principle of totality, particularly in view of the following matters:
(a) the lack of relevant prior history;
(b)the fact the applicant committed the majority of the offences (in particular the most serious charge of carnal knowledge) while still a child;
(c)the fact that the offending was committed by a child or very young man in a household where sexual abuse was being openly perpetrated by the father;
(d)the extraordinary delay of 40-50 years between the events themselves and their prosecution;
(e)the fact that, while there were subsequent convictions of a similar character, by the time the applicant was dealt with he had not offended for nearly 25 years;
(f)the reasonably good prospects for the applicant’s reform;
(g)the fact that the applicant had the continuing support of his family;
(h)and in all these circumstances the Court placed too great an emphasis upon considerations of general deterrence and harm to the victims.
Circumstances surrounding the offending
The applicant was the oldest of ten children. The family often moved home, essentially in order to facilitate the father’s employment. Conditions at home were entirely dysfunctional. Many of the children, including the three complainants in this case, suffered physical, emotional and sexual abuse at the hands of their father, grandfather and an uncle (all of whom are now deceased).
The applicant’s father and mother were both alcoholics. When the father drank, he became very violent towards the mother and the children.
During his interview with police, the applicant said ‘there was rampant incest right through the family, and I don’t just mean siblings, I mean cousins, and, you know, uncles and aunts and all sorts of stuff.’ It seems that the children were introduced to sex at a young age and, as put by the trial judge in his sentencing remarks, ‘sexual activity between the children became normalised’.
Offending against DG – Charges 1, 2 and 5
DG was born in April 1955. She was the fifth sibling.
Charges 1 & 2
Between April and December 1966, when DG was aged 11, she began to develop breasts. One day, she was playing hide and seek with her brothers and sisters around the family’s property. The applicant, who was then aged between 15 and 16, lay down next to her as she was hiding and began to touch her breasts (charge 1 — indecent assault — sentence: three months).
The applicant also digitally penetrated DG. She told him to stop, pulled away from him and stood up. The applicant ceased what he was doing, as other children playing hide and seek at the time ‘found’ them (charge 2 — indecent assault — sentence: nine months).
Charge 5
One night, about three years later, in 1969, DG ran away to escape the constant abuse that she was suffering at home. At that time, the applicant was serving in the Australian Army, and may have been overseas.
As a result of leaving home, DG was placed in foster care. At the same time, some of her sisters were placed in State care, overseen by the Department of Human Services.
At some stage between April and December 1970, when DG was 15 years old, she visited her sisters, accompanied by the applicant. He was then aged 20, and married.
The applicant and his wife took his sisters to the beach. As they were playing hide and seek, the applicant came over to where DG was hiding and began touching her breasts. She told him to stop and go away, pushed his hands away from her and moved away from him (charge 5 — indecent assault — sentence: six months).
Offending against JM (Charges 4 & 6)
JM was born in September 1957. She was the seventh sibling of the family.
Charge 4
Between January 1967 and March 1968, when JM was aged about 10, she playfully jumped into bed with some of her siblings. The applicant, then aged 17, also got into the bed and attempted to have penile-vaginal sex with her (charge 4 — indecent assault — sentence: 12 months).
Charge 6
In 1975, when JM was aged 17, she and a boyfriend arranged to meet friends in order to go swimming. The friends did not come. JM found herself alone with the applicant, who, by then, was in his mid-twenties. They were near bushland at the time. The applicant attempted, unsuccessfully, to insert his fingers under her bathers in order to penetrate her vagina (charge 6 — indecent assault — sentence: 12 months).
Offending against PW (Charges 3 & 7)
Charge 3
Between January 1967 and August 1968, when PW was aged between 8 and 9, and before she was placed in State care, she was, at one stage, in the backyard of the family home. For whatever reason, she was lying on her back when the applicant, then aged between 17 and 18, got on top of her and had penile sex with her (charge 3 — carnal knowledge — sentence: two years and six months).
The Crown case was that this was not an isolated incident. As such, charge 3 should be viewed as a representative charge, reflecting a number of acts of sexual penetration.
On this and other occasions when the applicant had sexual intercourse with PW, he would cuddle her and tell her that he loved her. He would also, from time to time, give her money, and tell her that this was their secret.
Charge 7
Between 1974 and December 1975, PW, then aged 16 or 17, went to stay with the applicant, who was at that stage aged in his mid-twenties. As previously indicated, he was by then married.
PW was seeking employment at the time. She was applying for various jobs and attending interviews in the city.
At that time, PW noticed that she had developed blisters on her leg. On that occasion, she lay on the bed as the applicant checked them. He then lay next to her, naked from the waist down. He rubbed her leg and touched her other leg with his exposed penis (charge 7 — indecent assault — sentence: eight months).
Record of Interview
The applicant was arrested and interviewed on 20 March 2014. The catalyst for the complainants having finally reported the offending is unclear. However, it may have been related to the death of one, or both, of the parents.
When asked by police about the time that he had lived with his sisters at the family home, the applicant said ‘I don’t… remember a lot about the years at [the family home] really…I have a notoriously poor memory if you like – yeah.’
When further asked whether he had ever had sex with PW, he said ‘not that I remember’.
When the basis of charge 6, involving JM, was put to him, he said ‘I s’pose there’s that possibility’. He told police that his psychologist had said to him ‘that I do black out stuff’.
Subsequent offending
In 1994, the applicant received a wholly suspended sentence of imprisonment of two years on two charges of sexual penetration. The victim in that case happened to be his niece, the daughter of DG. The niece was aged 11 or 12 at the time.
Applicant’s submissions
In relation to both grounds 1 and 2, the applicant submitted that the sentencing judge had failed to give sufficient weight to the applicant’s childhood, and circumstances, at the time he committed these offences by way of mitigation. This was said to be evident from the judge’s sentencing remarks. His Honour directed his attention to general deterrence and punishment, as follows:
Sexual offending against children is despicable offending. Your sisters wanted, they needed your support and protection. You betrayed them. Such offending is now seen as very serious and significant community problem [sic]. You offended against a young vulnerable niece in the early 1990s. Your offending and its circumstances make relevant considerations of deterrence, particularly general deterrence, your moral culpability, [sic] that I sentence to condemn the offending and the need for proportionate punishment. General deterrence is important to protect our vulnerable young from sexual exploitation, often occurring within secrecy of their homes.
The applicant submitted that remarks of that kind were not appropriately directed to a child offender, as the applicant would have been had he been sentenced at the time of his offending. It was further submitted that the passage of time did not render such remarks appropriate.
The applicant pointed to this Court’s comments in R v Boland:
Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.[1]
[1](2007) 17 VR 300, 304 per Nettle JA (‘Boland’).
The applicant also submitted that the environment in which he had grown up was a ‘model of blatant sexual abuse of one’s family’. The applicant had not known any other ‘normality’. He submitted that it was difficult to find, in the sentencing remarks, any appropriate recognition of his dysfunctional background, which ought to have been a significant mitigating factor, and further submitted that the sentence itself did not reflect any such recognition.
The applicant next submitted that, as documented in a Forensicare report submitted at trial, he presented as being a low risk of reoffending. He submitted that, given that 23 years had passed since his most recent, and subsequent, offending, the principles in three cases, R v Nutter,[2] R v Better,[3] and R v Sherritt[4] should have been applied.
[2]Unreported, Victorian Court of Appeal, Charles and Callaway JJA and Vincent AJA, 8 November 1995.
[3][2003] VSCA 71 (‘Nutter’).
[4][2015] VSCA 1 (‘Sherritt’).
The applicant further submitted, with reference to his good character, that he had, since the offending in this case, served in the Australian Army for 21 years. He had worked as a chef, and later established his own successful kitchen design business. He had maintained a marriage of 44 years, and had had five children. Two of his children had died in tragic circumstances. In addition, he was caring for another son who had developed an acquired brain injury.
The applicant argued that, if he had been charged with these offences at or about the time they were committed, his conduct would have been viewed through the lens of his own victimhood. In context, that meant that his sexual abuse of his sisters was ‘normal and apparently sanctioned’, within his family milieu.
Finally, the applicant submitted that the sentencing judge appeared to have been ‘overwhelmed’ by the evidence of the harm that he had done to the victims. He argued that it was ‘impossible’ to disentangle the harm that he had caused them by his actions from that which had been brought about by the sexual predation of his father, and other members of the family.
Respondent’s submissions
The respondent submitted that the sentencing judge had correctly applied the principles laid down in Boland, Nutter and Sherritt. It was submitted that these cases could be distinguished on the basis that the applicant’s subsequent offending against his niece, in the 1990s, indicated that he most definitely had not ‘led a blameless life’. When that particular offending occurred, the applicant was aged 44.
The respondent further argued that the applicant had been an adult at the time that some of the offending took place. He was aged 19 or 20 when the offence that gave rise to charge 5 was committed. He was aged in his mid-twenties when the offences giving rise to charges 6 and 7 were committed.
Additionally, the most serious offending, the repeated acts of carnal knowledge giving rise to charge 3, took place when the applicant was aged between 16 and almost 18. It was submitted that a charge of that gravity, committed against a girl aged only 8 or 9, would almost certainly not have been dealt with in the Children’s Court at the time.
The respondent submitted that, whilst the cases to which the applicant referred clearly established that the applicant’s age at the time of the offending had to be taken into account, they did not dictate that any great leniency had to be afforded. They most certainly did not establish that the individual sentences imposed in this case, still less the total effective sentence, were wholly outside the range.
The respondent noted that, in Boland, the offender in that case received a three year term of imprisonment, with the balance suspended, having already spent a year in prison. In R v Better,[5] a similar sentence was imposed with all but 223 days suspended. The fact that those sentences were regarded as appropriate in the very different circumstances that prevailed in those cases said nothing about whether the sentences imposed in this case were excessive.
[5]Unreported, Victorian Court of Appeal, Charles and Callaway JJA and Vincent AJA, 8 November 1995.
The respondent further submitted that the applicant had not displayed any remorse for his actions, as found by the sentencing judge. Had he done so, that would, no doubt, have impacted upon the sentence imposed.
The respondent also noted that the sentencing judge had been somewhat guarded about the extent to which he accepted that there had been rampant violence and sexual abuse in the family home.
The respondent next submitted that the sentencing judge had been entitled to give some effect to need for general deterrence, as well as the requirement that there be just punishment. In particular, it was submitted that his Honour had been entitled to take into account the devastating impact that the applicant’s offending had had upon his sisters, as demonstrated by the victim impact statements. It was unnecessary for his Honour to have attempted to untangle the consequences that flowed specifically from the applicant’s offending to the harm done to the victims by the actions of others.
The respondent noted that his Honour had recognised the ‘difficult sentencing task’ that lay before him. It was open, in the circumstances, to conclude that nothing other than an actual custodial term was appropriate. The judge had referred to all relevant mitigating circumstances, including the many years that had passed between the commission of these offences and when the applicant was finally brought to book.
Finally, it was submitted that, although the applicant was sentenced as a serious sexual offender in relation to charges 3 to 7, the degree of cumulation was modest. It did not reflect any more than that the offending related to different victims, and took place at different times.
Conclusion
In my opinion, there is no reasonable prospect, within the meaning of s 280(1) of the Criminal Procedure Act 2009, that if leave to appeal were granted this Court would impose a less severe sentence than that which was imposed below.
The applicant offended against his three sisters over a significant period of time, and, when they were all very young indeed. In the case of PW, she was aged only 8 or 9 when he repeatedly sexually penetrated her. That was egregious and utterly contemptible offending. Despite what may have been going on at home, and what other members of his family may have been doing, the applicant must have known full well just how disgraceful, and destructive, his conduct was.
I can see no basis upon which it can reasonably be argued that the sentencing judge fell into any error of a kind that could have vitiated the exercise of the sentencing discretion. His Honour adverted to all relevant matters, both aggravating and mitigating, when he synthesised the appropriate disposition of this case.
In the circumstances, I would refuse leave to appeal.
- - - - -
0
2
0