Fisher v R

[2008] NSWCCA 129

New South Wales
Court of Criminal Appeal

CITATION:	John Ian FISHER v R [2008] NSWCCA 129
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	20 June 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Hidden J at 31
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against sentences - pleas of guilty - aggravated sexual assault - aggravated indecent assault - counts on indictment were representative - whether uncharged criminal conduct taken into account as an aggravating feature - whether sentence manifestly excessive - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	The Queen De Simoni [1981] HCA 31; 147 CLR 383 R v JCW [2000] NSWCCA 209
PARTIES:	John Ian FISHER (applicant) REGINA (respondent)
FILE NUMBER(S):	CCA 2007/3127
COUNSEL:	S Corish (applicant) N Adams (respondent)
SOLICITORS:	S O'Connor - Legal Aid Commission (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0004
LOWER COURT JUDICIAL OFFICER:	English DCJ

2007/3127

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J

20 June 2008

John FISHER v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at East Maitland on 24 July 2007, following his pleas of guilty to five charges of offences of a sexual nature. Two of the offences were of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900, which provides a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 10 years is prescribed. The remaining three counts were of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, each of which carries a maximum penalty of imprisonment for 7 years, and in respect of which a standard non-parole period of 5 years is prescribed.

3 In respect of the first count of aggravated sexual assault English DCJ imposed a total term of imprisonment for 10 years, made up of a non-parole period of 6 years, commencing on 22 March 2008. On each of the remaining counts her Honour imposed fixed terms of imprisonment of, respectively, 4 years, 6 months, 2 years and 4 years; the first was also specified to commence on 22 March 2008, and therefore run concurrently with that earlier imposed; the remaining sentences were specified to commence on 22 March 2007.

4 The overall effective sentence was therefore a sentence of imprisonment for 11 years with a non-parole period of 7 years.

5 In so sentencing the applicant English DCJ found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances justifying departure from the proportions between the head sentence and the non-parole period existed. She gave effect to this finding by imposing an overall non-parole period that is sixty-four percent of the overall term.

Facts

6 The victims of all offences were the thirteen year old twin daughters of a woman with whom the applicant had been in a relationship between 2000 and 2004. After the relationship ended the applicant maintained contact with the twins and their younger brother. On occasions when their mother was working the applicant cared for the children at his home. They frequently stayed overnight, in their own accommodation.

7 The three offences of aggravated indecent assault were committed against one of the twins, to whom it is convenient to refer only as “D”. All offences were committed on one evening in April 2006 when D and her brother were staying at the applicant’s home. The other twin (“J”) was not present. D and the applicant watched movies on a DVD player in her bedroom. D then went to sleep. The applicant entered her bedroom and woke her, asked her to come to his bedroom and give him a massage as he had a headache. D complied. She then lay down on the bed and the applicant began to massage her. She removed her clothes, although retaining her underwear. The applicant undid her bra. She asked him to stop. He did not. He removed her pants. She asked him to stop. He did not. He began to kiss her face, and rubbed his penis on her vagina. She told him not to because it hurt. He touched her vagina with his fingers, fondling it and continued to kiss her. She again asked him to stop, smacking his hand away from her vagina. He ceased the activity. D rose, retrieved her clothes, and went back to her bedroom.

8 The three offences of aggravated sexual intercourse without consent occurred on 29 April 2006. The victim of these offences was D’s twin, J. The applicant agreed to have the children stay at his house to enable their mother and her partner to go out. The applicant asked J to come to his bedroom, and walk on his back as it was sore. She agreed to do this. The applicant then offered her a massage and told her to remove her clothing. She removed her outer clothing but retained her underclothes. The applicant began to massage her back and legs and then closed the bedroom door. From a cupboard in the room he obtained a purple vibrator. He removed his shorts and climbed back on the bed. He began to touch J’s vagina. She told him to stop, but he did not. He turned on the vibrator and rubbed it on J’s clitoris. He inserted it into her vagina and moved it in and out for a couple of minutes. His penis became erect. He masturbated for a short time until his penis was completely erect; he removed the vibrator from J’s vagina and told her to sit on top of him. She complied. He inserted his penis into her vagina and had sexual intercourse with her for about five minutes until he ejaculated. He told her to have a shower, and took all three children out for dinner.

9 It will be observed that in respect of each victim the offences charged occurred on a single occasion, as part of a continuous course of conduct. The facts were put before English DCJ by way of an agreed statement of facts. In respect of each victim that statement contained the following:

“These offences are representative counts. The offences occurred regularly [in the case of J] sporadically [in the case of D] between 2004 and 2006.”

Subjective circumstances

10 The applicant did not give evidence in the sentencing proceedings. Evidence was given on his behalf by his wife, to whom he was married in August 2006, and by his mother.

11 There was also before his Honour a pre-sentence report, and a very comprehensive psychological report. From that material the following emerged. The applicant was born in 1968 and was between 36 and 38 at the time of the offences. He was the owner and manager of a computer business which he operated from his home. He had handed over the management of the business to employees on his being charged and, at the time of sentencing, was supported by his wife’s income and some Centrelink benefits supplemented by occasional work at his wife’s family business and designing internet websites.

12 He had had a very difficult childhood. His biological father left his mother when he was very young and the applicant never knew him. His mother had married a Vietnam veteran who showed extreme symptoms of post-traumatic stress disorder, manifested in anger and violence, predominantly verbal. His mother felt she needed to protect the applicant from his step-father. She gave some instances of emotional cruelty perpetrated upon the applicant by this man. The applicant told the psychologist that he had, as a child and teenager experienced three instances of sexual abuse by different older men. The psychologist found him to experience a considerable degree of “interpersonal dysfunction across a range of domains.” She found him to be “negative and pessimistic” and dependant. She considered that he posed a “low-moderate” risk of re-offending and recommended participation in therapy designed to address the sexual, emotional and intimacy issues that contributed to his behaviour.

13 The applicant has two sons of whom he has full time care. The elder of these boys suffers from Aspergers Syndrome, which makes him difficult to manage. During his incarceration his wife has the sole care of the boys.

The Remarks on Sentence

14 English DCJ recounted the agreed facts of the offences. In relation to the offence of penile/vaginal intercourse with J, English DCJ classified it as “at the mid range of objective seriousness”. She found that this was “not a one off isolated offence”. What her Honour said in full was:

“It was not a one-off isolated offence and whilst the offender cannot be sentenced in respect of unidentified other instances, this being a representative count, the fact that it was part of an ongoing systemic sexual abuse of a child between the ages of 11 and 13 does increase the objective criminality of the offence.”

15 She took into account that the applicant was at the time “the carer” of the victim; and that there was some degree of planning in that the applicant enticed J into his bedroom on a pretext. She said:

“[J] was only aged 13 at the time. True it is that age is an element of the offence, but the fact that she is at the youngest end of the scale is a matter which does add to the seriousness of the offence committed. The younger the more vulnerable, the less likely the victim is able to speak out. I find she was vulnerable in the extreme.”

And, earlier:

“Once again it was not an isolated incident but rather part of a system of sexual abuse of a young girl.”

The grounds of the application

16 The grounds of the application are pleaded as follows:

“(1) The learned sentencing judge erred in taking into account uncharged criminal conduct as an aggravating feature in the assessment of the objective seriousness of the offences in relation to the victim [J] and [D].
(2) The learned sentencing judge erred in sentencing the applicant for an offence involving the ‘ongoing systematic sexual abuse of a child’ and thereby breached the prohibition in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.
(3) The learned sentencing judge erred in her assessment that the age of the victim [J] was at the ‘youngest end of the scale’, which added to the objective seriousness of the offence.
(4) The overall sentence is manifestly excessive in the circumstances.”

17 I shall deal with the grounds in the order in which they are pleaded.

Grounds 1 & 2: “Uncharged criminal conduct as an aggravating feature”; the De Simoni principle.

18 These grounds raise, essentially, the same issue. I have quoted the relevant passages from the agreed statement of facts, and that from the Remarks on Sentence.

19 The extent to which uncharged incidents may be taken into account on sentencing has been considered at length, and determined, by the judgment of Spigelman CJ in R v JCW [2000] NSWCCA 209. His Honour, with the concurrence of the other two members of the Court (of whom I was one) concluded that, even where such conduct is admitted, it is appropriate to be taken into account only for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence; and not as a circumstance of aggravation: see [68].

20 The real question which determines this ground of appeal concerns whether the remarks made by her Honour ought to be construed as indicating that she treated the admitted “ongoing systematic sexual abuse” of the victim as an aggravating factor.

21 The words “ … does increase the objective criminality of the offence”, taken alone, could suggest that her Honour was treating the pattern of offending as an aggravating factor. However, balanced against that, is her Honour’s reminder to herself, immediately preceding those words, that the applicant could not be sentenced in respect of unidentified other instances.

22 On the other hand, the observation appears in a relatively lengthy part of the Remarks on Sentence which commences with a reference to an assessment of the seriousness of the offences, and moves on to deal with specific matters expressly identified as aggravating circumstances in s 21A(2) of the Sentencing Procedure Act – such matters as that the applicant was in a position of trust, that there was some degree of planning, and the age of the victim.

23 Further, as the Crown pointed out in this application, her Honour had the benefit of carefully prepared written submissions in which her attention was drawn to the correctly stated principles by counsel for the applicant and the solicitor appearing for the Crown. The Crown accepted, on the application, that her Honour could have “used more precise language” but argued that, nevertheless, it ought not to be concluded that the admission that the counts on the indictment were “representative” and that other offences had been committed, was treated as an aggravating factor.

24 In my opinion the submissions of the Crown ought to be accepted. The Remarks on Sentence ought not to be subjected to minute scrutiny in search of any indication of error. It is of some significance that, not withstanding that observation, her Honour found the offence at the mid range of objective seriousness. That was an eminently proper finding to make in relation only to the offence with which she was dealing. It is hardly to be thought that a similar finding would have been made had her Honour been treating the course of conduct as a feature aggravating that offence – that would inevitably have given rise to a finding of greater than mid range of objective seriousness.

25 In my opinion this ground ought to be rejected.

Ground 3: “The age of J”

26 At the time of the offences s 61J(2)(d) of the Crimes Act created an offence of which the aggravating feature was that the victim was under the age of 16 years. S 66A created a separate offence, punishable more severely, of such an offence against a victim under the age of 10 years (in which case consent was not an issue).

27 I have earlier set out that passage in the remarks in which her Honour held that J was, at the time of the offences against her, “at the youngest end of the scale”. If it is taken that, by reason of the provisions of 66A, s 61J(2)(d) created an offence that was in practical terms, referable to victims between the ages of 10 and 16, this was, strictly speaking, inaccurate. The victim was, at 13, in fact closer to the upper end of the range. However, I regard the inaccuracy as of little moment. The fact is these offences were committed against a 13 year old who, the sentencing judge held, was “vulnerable in the extreme”. I would reject this ground of the application. The same applied to the other victim.

Ground 4: “Manifestly excessive”

28 No separate submissions were directed to this ground of appeal, which, essentially, drew upon the matters argued in relation to the earlier grounds. I would not hold that the overall sentence was manifestly excessive.

29 In my opinion, it has not been demonstrated, as is required by s 6 of the Criminal Appeal Act 1912 (if the application is to succeed) that any other sentence (in total) was warranted in law and ought to have been passed.

30 I propose that leave to appeal be granted but that the appeal be dismissed.

31 HIDDEN J: I agree with Simpson J.

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