William John Fleming v The Queen - [2016] VSCA 242

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)

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing
DATE OF JUDGMENT:	7 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 242	1^st revision: 10 October 2016, [19]
JUDGMENT APPEALED FROM:	DPP v Fleming (Unreported, County Court of Victoria, Judge M P Bourke, 14 April 2016)

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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.

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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…

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 William John Fleming v The Queen

Details

AGLC: William John Fleming v The Queen [2016] VSCA 242
Case: [2016] VSCA 242
Decision Date: 7 October 2016

CaseChat Overview and Summary

William John Fleming sought leave to appeal against the sentence imposed on him following his conviction for indecent assault of a female under 16 and carnal knowledge of a girl under 10. The case was heard in the High Court of Australia. Fleming was sentenced to a total effective term of three years and six months’ imprisonment, with a non-parole period of 18 months. His application for leave to appeal centred on two main grounds: first, that the sentencing judge failed to take appropriate account of Fleming’s age at the time of offending, and second, that the sentence was a manifest excess.

The court considered whether the sentence was unjust due to the failure to consider Fleming's age at the time of the offences and whether the sentence was manifestly excessive. In addressing the first issue, the court found that the sentencing judge had adequately considered Fleming’s age, noting that the age had been a mitigating factor in the sentencing process. Regarding the manifest excess argument, the court held that the sentence was not manifestly excessive, given the gravity of the offences and the need for general deterrence. The court further concluded that there was no reasonable prospect that the sentence imposed would be reduced on appeal.

As a result, the High Court refused Fleming’s application for leave to appeal against his sentence. The reasoning and outcome underscore the court's focus on the severity of the crimes and the importance of deterrence in sentencing.

Orders