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…

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 Fisher v R

Details

AGLC: Fisher v R [2008] NSWCCA 129
Case: [2008] NSWCCA 129
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the case of Fisher v R, the appellant, Fisher, was convicted of aggravated sexual assault and aggravated indecent assault. The sentences imposed by the trial judge were the subject of appeal, with Fisher arguing that the sentences were manifestly excessive and that the trial judge had failed to consider relevant uncharged criminal conduct as an aggravating feature. The High Court of Australia was tasked with determining whether the sentences were indeed manifestly excessive and whether the trial judge had erred in not considering the uncharged criminal conduct.

The legal issues central to the appeal were whether the sentences imposed by the trial judge were manifestly excessive and whether the trial judge had erred in failing to consider relevant uncharged criminal conduct as an aggravating feature. The court was required to examine the principles of sentencing for aggravated sexual and indecent assault, the factors that could be considered as aggravating features, and the extent to which the trial judge had exercised discretion in imposing the sentences.

In its decision, the High Court found that the trial judge had exercised proper discretion in imposing the sentences. The court held that the trial judge had appropriately considered the gravity of the offences and the need for general and specific deterrence. The court also found that the sentences were not manifestly excessive, given the nature and circumstances of the offences. Furthermore, the High Court held that the trial judge had not erred in failing to consider the uncharged criminal conduct as an aggravating feature, as the counts on the indictment were representative of the appellant's criminal conduct and adequately reflected the seriousness of the offences committed. Consequently, the appeal was dismissed, and the original sentences were upheld.

The court's final orders were that the appeal against sentence was dismissed, and the sentences imposed by the trial judge were affirmed.

Orders