Director of Public Prosecutions v Fisher

[2025] ACTSC 442

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Fisher

Citation: 

[2025] ACTSC 442

Hearing Date: 

23 September 2025

Decision Date: 

29 September 2025

Before:

McWilliam J

Decision: 

Offender convicted and sentenced to a term of imprisonment for one year, 10 months and 28 days, with a drug and alcohol treatment order imposed for the remainder of the sentence.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – where offending drug-related – drug and alcohol treatment order imposed

Legislation Cited: 

Criminal Code 2002 (ACT) ss 45A, 310

Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 161D

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 37(2)(a), 63, 64, 80O, 80S, 80T, 80

Cases Cited: 

Cranfield v The Queen [2018] ACTCA 3

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Fisher [2023] ACTSC 29

DPP v JJ (No 2) [2024] ACTSC 74

DPP v Scott [2024] ACTSC 378

DPP v Sullivan (No 3) [2025] ACTSC 134

Hili v The Queen [2010] HCA 45; 242 CLR 520

Laipato v The Queen [2020] ACTCA 35

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99

MT v The Queen [2021] ACTCA 26; 17 ACTLR 22

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

R v Fisher (No 2) [2011] ACTSC 100

R v Fisher (No 3) [2011] ACTSC 111

R v Fisher [2011] ACTSC 56

R v Kilic [2016] HCA 48; 259 CLR 256

R v Lindsay [2020] ACTCA 25

R v Miller [2019] ACTCA 25; 279 A Crim R 232

R v Nicholas; R v Palmer [2019] ACTCA 36

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v White [2023] ACTSC 35

Smith v The Queen [2011] NSWCCA 163

Parties: 

Director of Public Prosecutions

Dennis John Fisher ( Offender)

Representation: 

Counsel

H Robinson (ACT DPP)

S Lynch ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aboriginal Legal Service ( Offender)

File Number:

SCC 103 of 2024

McWILLIAM J:         

1․Dennis John Fisher is before the court for sentence, having pleaded guilty to one count of aggravated robbery by joint commission, contrary to s 310 of the Criminal Code 2002 (ACT) (Code) by virtue of s 45A of the Code (CAN 539/2024). This offence carries a maximum penalty of a $400,000 fine, imprisonment for 25 years, or both.

2․The robbery is aggravated by virtue of being committed in company with three co-offenders, being Brett Scott, Danielle Towney and Dennielle Kimmins (the co-offenders).

Facts

3․The conduct is set out in a Statement of Facts as well as in CCTV footage which was tendered in the proceeding.  At about 4:50pm on 19 November 2023, the offender, along with the co-offenders, attended an address in Lyneham by car, in the belief that an individual lived in that residence who would be able to sell them heroin.

4․Mr Scott exited the vehicle and approached the residence. The victim, who was not the individual the offenders were looking for, was inside his residence and heard a knock at the front door. He opened the door and observed Mr Scott there. Mr Scott stated, “we know there’s heroin here. Where’s the heroin”. The victim informed Mr Scott that there was no heroin at the residence. 

5․Ms Kimmins then approached the front door, and said words to the effect of:

“You all good Brett, where's Trin? Where's Trin? I seen her here the other day. How do you know her full name then? I said Trin, how do you know her name’s Trinity? He's a lying cunt cos I've seen her here, promise ya. Hey just walk in there, even Mouse told me she comes here”.

6․While Ms Kimmins was speaking, the offender exited the vehicle and sat on the fence at the edge of the property line. Mr Scott and Ms Kimmins then forced their way into the residence. At the same time, the offender walked towards the front door and Ms Towney got out of the car and ran towards the front door.

7․Once inside, Ms Kimmins physically attacked the victim. The offender and Ms Towney both entered the property. None of the offenders had permission to enter the residence.

8․While inside the residence, the offenders started throwing items around the property and again asked for heroin. The victim was forced to the back of the hallway, and was verbally threatened by Mr Scott. Ms Kimmins and Ms Towney assaulted the victim a number of times.

9․During the incident, the offender exited and re-entered the residence several times, taking items from the residence to the vehicle. These included a case of alcoholic ginger beer and a large silver travel case containing two Pioneer 100 Compact Disc Jockeys and a Four Channel Mixer.

10․Mr Fisher was arrested on 28 November 2023 in relation to this offending.

The court’s task

11․The court’s task is well-established. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting an offender’s rehabilitation. Those considerations have been taken into account in the reasoning that follows.

12․The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

13․As I have stated in other cases but repeat here for the benefit of the particular offender involved, the requirement to consider the nature and circumstances of the offences includes consideration of the objective seriousness of the offence.  A number of general principles guide that assessment.  They are as follows:

(a)There is a theoretical spectrum from the least serious instance of the offence to the most serious.  That spectrum takes into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

(b)In assessing the nature of the crime, the court takes an objective approach, in the sense that the court does not consider matters personal to the offender and determines the seriousness ‘wholly by reference to the nature of the offending’: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

(c)The maximum penalty for an offence also provides a yardstick against which to assess the objective seriousness of the offences before the court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

(d)The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

14․It is also preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156]. I have discussed features of the offence that may be relevant in DPP v JJ (No 2) [2024] ACTSC 74 (JJ (No 2)) at [59], and similar features were identified more recently in DPP v Sullivan (No 3) [2025] ACTSC 134 (Sullivan) at [22]-[23]. Here, the findings as to the seriousness of the offending have already been discussed in DPP v Scott [2024] ACTSC 378 (Scott) at [103]-[104]:

103․ The offending involved an invasion of the victim’s home, a place where the victim was entitled to feel safe: R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [116], citing DPP v Brooks [2005] VSCA 31 [22].

104․ Whilst none of the offenders were armed, the offender was in company with three other offenders. As the prosecutor submitted, the victim was significantly outnumbered by the offenders. It is apparent from the fact that the offenders arrived together and demanded heroin from the victim that the offending involved a degree of planning. Actual force was used against the victim, who sustained injuries including scratches and bruising, and psychological harm. Although the offender did not himself physically assault the victim, the offender threatened the victim with reprisals if he reported the matter to police.

15․The offender here did not participate directly in the attack on the victim but nevertheless did actively participate in the theft and made a threat of reprisal.  I accept the characterisation of the offender’s involvement as being broadly similar to that of the co-offender sentenced in Scott.

Victim impact statements (s 33(1)(f) of the Sentencing Act)

16․There was a victim impact statement before the Court. In it, the victim expresses the ongoing effects of the events of 19 November 2023, including always living in fear for his safety, and feeling angry and frustrated. The victim struggles from post-traumatic stress disorder and is still affected on a daily basis. 

17․As I have said above, the offender here was not directly involved in the assault on the victim, noting that the degree of responsibility in the offending is a relevant consideration: s 33(1)(i) of the Sentencing Act.  I will return to that matter below.  Nevertheless, it is clear that the impact caused trauma which is significant and ongoing, and I consider the actions of the offending to have been life-altering for the victim.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

18․The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act. 

19․The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, being the statutory matters set out in s 35(2) of the Sentencing Act.  Some of those matters are addressed separately elsewhere in these reasons, such as the seriousness of the offence and the impact of the offence on the victim.

20․Utilitarian value is a primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49].

21․Here, the offender pleaded guilty in the Supreme Court at call over, following a criminal case conference and prior to a trial date being set. The offender submitted that a discount between 15% and 20% was appropriate. The prosecution conceded that a discount of at least 15% is appropriate.  Applying R v Nicholas; R v Palmer [2019] ACTCA 36 at [52] and having regard to the circumstances of this offender (which may include how any discretionary discount will affect the ultimate disposition of the sentence), I accept that 15% is the appropriate discount here.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

22․The offender is a 36-year-old Aboriginal man. The material before the court sets out the offender’s subjective circumstances.  It included:

(a)a neuropsychological report by Dr Sally McSwiggan dated 15 July 2024;

(b)a psychiatric report by Dr Gerald Chew dated 29 January 2023;

(c)various ACT Health psychiatric assessments between 2006 and 2010;

(d)the DASL Suitability Assessment dated 21 August 2025; and

(e)the Drug and Alcohol Treatment Assessment reported dated 10 September 2025.  

23․Without detailing the offender’s family background, which has been explained in detail in the reports, there is no doubt that the offender’s formative years display a history of social disadvantage. The offender has a lengthy criminal history in this jurisdiction (see R v Fisher [2011] ACTSC 56; R v Fisher (No 2) [2011] ACTSC 100; R v Fisher (No 3) [2011] ACTSC 111; and DPP v Fisher [2023] ACTSC 29 (DPP v Fisher)), which Berman AJ noted in DPP v Fisher ‘is not surprising given his upbringing and his psychiatric state.’  The offending itself occurred while the offender was on parole (conditional liberty), which does not influence the objective seriousness but is relevant to determining the appropriate sentence: Smith v The Queen [2011] NSWCCA 163 at [26]. The offender’s drug addiction is dealt with separately below.

24․Returning to the offender’s degree of responsibility and moral culpability, the offender has been assessed by a neuropsychologist, who determined that the offender has impaired cognitive functioning, along with chronic and severe substance use disorder. He has also been diagnosed by a psychiatrist with schizophrenia, epilepsy, intellectual disability and substance use disorder.  I accept the offender’s submission that, as noted by Berman AJ in DPP v Fisher at [24], the offender’s moral culpability is ‘considerably reduced’.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

25․I have taken into account R v White [2023] ACTSC 35 at [52] and the cases discussed in JJ (No 2) at [109]-[111]. Ensuring consistency in sentencing practice relates to the consistent application of relevant legal principles rather than binding the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. Current sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83].

Parity

26․The case of most direct relevance in this regard is that of one of the co-offenders, being Brett Scott. He was sentenced to two years and three months’ imprisonment, ultimately to be served by way of a drug and alcohol treatment order: Scott at [153].

Pre-sentence custody

27․As at the date of sentence, the offender has spent 314 days in custody referable to this offending. This will be taken into account by way of backdating, pursuant to s 63 of the Sentencing Act.

Parole time credit

28․There was a potential additional issue canvassed during the hearing as to whether the offender’s parole is to be cancelled and whether s 161D of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) obliges the court to redetermine parole time credits, a matter that was discussed in Sullivan at [82]-[118]. It is unnecessary to set out the provision because here, the parties agreed that the circumstances of this case were distinguishable from those existing in Sullivan as the parole order in respect of this offender has since expired. Such an issue does not arise, and the case is distinguishable from Sullivan on the facts.

Disposition

29․The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act.  It was accepted here that such threshold was crossed.

30․The real issue was whether a drug and alcohol treatment order should be imposed.

31․I have taken into account the relevant sentencing purposes.  The time that the offender has already spent in full-time custody referable to the offending has achieved the objectives of personal deterrence, punishment and denunciation, as well as recognising the considerable harm and impact visited upon the victim.  The lengthy period in custody may also be seen to give effect to general deterrence.  Further effect will be given to general deterrence and denunciation through the length of the total effective sentence to be imposed and ensuring that it is proportionate to the gravity of the offending.

32․That means that the court’s focus at this point turns to rehabilitation and how best to protect the community in the longer term. 

33․I have considered the objects of a Treatment Order set out in s 80O of the Sentencing Act as follows:

(a)facilitating the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime;

(b)reducing the offender’s dependency on alcohol or a controlled drug;

(c)reducing the health risks associated with such dependency;

(d)assisting the offender’s integration into the community; and

(e)promoting community safety by reducing re-offending.

34․The offender’s drug use has been detailed in the reports.  He has expressed a strong desire to rehabilitate, and he believes he is at a point now where he can succeed.  This is critical in determining the most appropriate course for the offender.  It is notoriously difficult to manage drug addiction and the offender’s attitude and timing play a big role in their success.  The participant must be psychologically ready for what will be a rocky journey.  Plainly though, removing the criminogenic risk factors of the offender’s drug use must be given immediate priority.  It is through rehabilitation that the long-term protection of the community will be best promoted.  

35․I am otherwise satisfied of the formal requirements for a Treatment Order:

(a)On the reports provided to the court, the offender is both eligible and suitable for a Treatment Order: ss 80S and 80T of the Sentencing Act.

(b)There was a degree of correlation between the offender’s dependency on drugs and his offending: s 12A(2)(a)(i) and (ii) of the Sentencing Act.

(c)The offender has consented to the Treatment Order, having been given a clear explanation of what it involves (confirmed at the hearing): s 12A(2)(c) of the Sentencing Act.

(d)The offender will live in the ACT for the duration of the sentence except as directed by the court: s12A(2)(a)(iii) of the Sentencing Act.

(e)There are no concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act.

36․I conclude that a Treatment Order is appropriate for this offender: s 12A(2)(b) of the Sentencing Act.  It recognises that this offender needs support and targeted intervention in order to prevent him from continuing on a recidivist criminal path.

37․It is not necessary to set a non-parole period because the making of a Treatment Order means that the sentence becomes an “excluded sentence of imprisonment” under s 64 of the Sentencing Act.

Orders

38․The orders of the Court are:

(1)For the offence of aggravated robbery contrary to s 310 of the Code by virtue of s 45A of the Code (CAN 539/2024), the offender is convicted and sentenced to a term of imprisonment of two years and three months, reduced to one year, 10 months and 28 days on account of his guilty plea, to commence on 19 November 2024 and conclude on 16 October 2026.

Drug and Alcohol Treatment Order

(2)A Treatment Order under s 12A of the Sentencing Act is made for Dennis John Fisher in respect of the eligible offence of aggravated robbery (CAN 539/2024), for which he has been convicted and for which he has been sentenced to a term of imprisonment of one year, 10 months and 28 days.

(3)The conviction and sentence imposed for the said eligible offence is hereby incorporated into the Treatment Order in the Custodial Part of the Order.

(4)A Treatment Order is made for one year and 18 days from today, 29 September 2025 to conclude on 16 October 2026.

(5)The Treatment and Supervision Part of the Treatment Order is for one year from today, 29 September 2025 until 28 September 2026.

(6)The Custodial Part of the Treatment Order for the eligible offence will be suspended under s 80W of the Sentencing Act from today, 29 September 2025, until 16 October 2026.

(7)Under s 80ZA of the Sentencing Act, Mr Fisher is required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the CSA Act from the day after the end of the Treatment and Supervision Part of the Treatment Order, 29 September 2026, until the end of the total sentence that is the subject of the Treatment Order, 16 October 2026.

(8)A probation condition is imposed that Mr Fisher accept supervision by the Commissioner of ACT Corrective Services or their delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.

(9)For the Treatment and Supervision Part of the Treatment Order:

a.The core conditions of the Order set out in s 80Y of the Sentencing Act are hereby imposed.

b.Mr Fisher is to travel to Canberra Recovery Hub (CRH) on 30 September 2025 and admit himself to the drug rehabilitation day program at that facility by 9:45am.

c.Mr Fisher is directed to complete the drug rehabilitation day program at CRH or any other program of intervention, treatment or counselling he is directed to complete, including urinalysis or case management that may be required by any member of the Treatment and Supervision Team.

d.Mr Fisher is to obey all reasonable directions of any person in charge of the program and all the rules of the program and the facility, which may include directions about where he resides, with whom he associates and his attendance from time to time.

e.Mr Fisher is not to leave his approved place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT Policing.

f.Should Mr Fisher leave or be discharged from the day program before completing it, he is to report to ACT Corrective Services by 4:00pm on the next business day with a view to having his Treatment Order reviewed.

g.Mr Fisher is not to consume or use alcohol, cannabis, illicit drugs, or prescription drugs not prescribed to him.

h.Mr Fisher is to comply with any directions of the court from time to time about attendance at court in person or by electronic means.

(10)Pursuant to s 12A(6) of the Sentencing Act, I direct that written notice of the order, together with a copy of these orders, be given to the offender.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate:

Date: