Director of Public Prosecutions v Fisher
[2023] ACTSC 29
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Fisher |
Citation: | [2023] ACTSC 29 |
Hearing Date: | 31 January 2023 |
Decision Date: | 31 January 2023 |
Before: | Berman AJ |
Decision: | (1) On count one, aggravated burglary, Mr Fisher is sentenced to imprisonment for 18 months to date from 20 July 2022 to 19 January 2024. (2) On count three, damage property, he is sentenced to imprisonment for a period of 12 months to date from 20 July 2023 to 19 July 2024. (3) On the common assault transfer charge, he is sentenced to imprisonment for three months to date from 20 July 2022 to 19 October 2022. (4) The overall sentence is one of two years' imprisonment from 20 July 2022 to 19 July 2024. (5) I set a non-parole period of one year to date from 20 July 2022 to 19 July 2023. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – damage property – joint commission – common assault – imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Criminal Code 2002 (ACT) s 312 |
Parties: | Director of Public Prosecutions (DPP) Dennis John Fisher (Offender) |
Representation: | Counsel C Wanigaratne (DPP) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service NSW/ACT (Offender) | |
File Numbers: | SCC 199 of 2022 SCC 200 of 2022 |
Berman AJ:
An appropriate sentence in any criminal matter is one which properly reflects both the offence and the offender. In this case, the offence was a serious one causing significant harm, but the offender's decision to commit the crime was one which was affected by the circumstance that he was mentally unwell. These two factors pull in different directions.
The facts
The offender, with two other men, went to a home unit in Griffith, ACT which was occupied by two people. The men were intent on gaining access to the premises, intending to cause harm to those who were inside. It was night and the people inside were asleep. At about 2:50am, the men approached the unit and smashed the sensor light at the front of the premises. The offender was not disguised, but the men with him were.
They gained access to the unit in a rather spectacular way. They threw a bicycle through one of the living room windows. It smashed, with the glass from the window falling inside the living room. The men then climbed through the broken window, entering the living room.
Unsurprisingly, the noise that that must have generated woke those inside. One of the occupants immediately recognised the offender because she was his ex‑partner.
The offender walked straight towards the other occupant of the premises, a man, and tried to kick him. He jumped back, then kicked the offender in the chest which knocked the offender back a little. The offender then used his arms with closed fists to throw a couple of swings at the man, but they did not make contact.
What I just described is a charge of common assault, which is an offence against s 26 of the Crimes Act 1900 (ACT). The offender has pleaded guilty to that offence, and it has been transferred from the Magistrates’ Court.
While this was happening, the other two men were busy. They too adopted fighting positions around the man inside the premises. The female occupant began yelling out the offender's name, telling him to stop. At this, one of the other invaders left the unit through the broken window.
The female occupant started to head towards the hallway, walking straight past the offender who was fighting with the male occupant of the unit. While she was doing this, the other invader, the one left behind, came towards her holding a knife. She went towards the back door. She had a Siberian husky dog out there and she wanted to let the dog inside to try to protect her.
The offender tried to close the hallway door, but she managed to barge the door open. It was at this stage that the offender and the remaining invader left the unit through the broken window.
What I just described was the commission of an aggravated burglary committed with intent to cause harm which is an offence against s 312 of the Criminal Code 2002 (ACT), or more colloquially, and accurately in this case, described as a home invasion.
The offenders were not finished yet, however. They went to the female occupant's car, which was parked outside, and smashed both the front windscreen and the driver's side window.
Finally, they left, leaving the occupants of the unit behind.
Objective seriousness
To say that the offences committed by the three men, and in particular the offender because it is he who I am sentencing, were serious is something of an understatement.
Firstly, the spectacular way they gained access must have been terrifying. It happened at night with the two people inside asleep. The offender was in company. There was force threatened. The people who he was with were disguised and one of them had a knife. It does not take much imagination to understand that this would have been an extremely terrifying experience for the two people inside.
One does not have to imagine it, however, because the female victim provided an eloquent victim impact statement which describes the consequences for her of Mr Fisher's offending.
The consequences for her continue to this day. They are not only psychological, such as her suffering from trauma and anxiety with panic attacks and being uncomfortable going out in public, but financial as well. She has not been able to drive her car since the offending because she cannot afford to get it fixed.
The consequences for victims of crime, the harm that offences cause, is a very important part of determining the sentence to impose upon an offender.
Subjective circumstances
Let me turn now from the offence to Mr Fisher himself. He was born in New South Wales and identifies as an Aboriginal from his mother’s side. His parents separated when he was a baby, and he does not know his father. He has three sisters and four brothers, born to six different fathers. Significantly, both his mother and one of his brothers have been treated for schizophrenia.
He moved to Canberra when he was 13 years old and at school had learning difficulties and required special education. He was the subject of sexual abuse by his stepfather, and although he has had a few jobs, he is in receipt of a disability support pension.
Mr Fisher suffers from schizophrenia, epilepsy, substance use disorder (he is currently in remission), and he has an intellectual disability. He suffered significant developmental trauma with a very unstable upbringing and childhood, as well as the sexual abuse to which I have already referred.
He was seen by a psychiatrist who provided a report for the benefit of the Court. There was no challenge by the prosecution to the finding of the psychiatrist that there is a link between his diagnosis and his offending behaviour. As is relatively common with those diagnosed with schizophrenia, Mr Fisher had become non-compliant with his medication, which caused a relapse into psychotic behaviour, which in turn affected his judgement, making him more likely to make poor decisions such as the decision to commit these serious offences.
The psychiatrist notes that, on top of this, Mr Fisher has poor cognitive abilities. Whilst in custody, Mr Fisher has been compliant with his medication and is much better in a psychiatric sense than he was when he went in.
The fact that Mr Fisher suffers from psychiatric illness is of considerable importance in deciding the sentence to impose upon him.
As I have already noted, there is a link between his conditions and his offending. His moral culpability is thus considerably reduced. He will do his time in custody harder and has done his time in custody harder too. Prisons are horrible places at the best of times, but they are even more difficult for those suffering from mental illness.
Mr Fisher has a considerable criminal history, which is not surprising given his upbringing and his psychiatric state. That criminal history includes offences of violence. His prospects of rehabilitation are far from good, but they are clearly related to his prospects of complying with medication and treatment upon his release from custody.
For that reason, I will impose a sentence which has a longer than usual period of eligibility for parole to assist Mr Fisher’s reintegration into society upon his release from jail. It has been conceded by Mr Cooper, who appears for Mr Fisher, that a custodial sentence is required.
Consideration
Mr Fisher pleaded guilty following a Criminal Case Conference. I will acknowledge the utilitarian benefit of that plea of guilty by imposing upon Mr Fisher a sentence which is lower than I would have otherwise imposed. I will specify at the end of this judgment the sentence I would have imposed had Mr Fisher not pleaded guilty.
Let me talk briefly about concurrency and accumulation. The aggravated burglary and the damaged property were separate offences causing separate and distinct harm. It would be wrong for me to impose entirely concurrent sentences on those matters, and indeed, Mr Cooper does not ask me to. The principle of totality applies of course, and so I will partially accumulate the sentence for the damaged property on the sentence for the aggravated burglary.
As far as the common assault charge is concerned, it does not appear that Mr Fisher ever succeeded in striking the victim of that offence and it was very much part and parcel of the aggravated burglary. The sentence I impose for the common assault charge will thus be entirely concurrent.
Sentence
I impose sentence as follows:
(1)On count one, aggravated burglary, Mr Fisher is sentenced to imprisonment for 18 months to date from 20 July 2022 to 19 January 2024.
(2)On count three, damage property, he is sentenced to imprisonment for a period of 12 months to date from 20 July 2023 to 19 July 2024.
(3)On the common assault transfer charge, he is sentenced to imprisonment for three months to date from 20 July 2022 to 19 October 2022.
(4)The overall sentence is one of two years' imprisonment from 20 July 2022 to 19 July 2024.
(5)I set a non-parole period of one year to date from 20 July 2022 to 19 July 2023.
Were it not for Mr Fisher's pleas of guilty, the sentence would have been 28 months with a non-parole period of 14 months.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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