Fisher v R; R v Fisher

Fisher v R; R v Fisher was an appeal against conviction and sentence heard by the High Court of Australia. The appellant was convicted of two counts of aggravated sexual assault in company. The first appeal related to the inconsistency between the verdicts on the two counts. The second appeal was by the Crown, arguing that the sentencing judge had erred by taking into account the appellant's self-induced intoxication as a mitigating factor and that the sentence was manifestly inadequate. The High Court was required to determine whether the jury's verdicts were inconsistent and whether the sentencing judge had erred in considering self-induced intoxication as a mitigating factor.

The High Court found that the jury could reasonably find the appellant guilty of the first count of aggravated sexual assault in company, but not guilty of the second count. The court emphasised that it was open to the jury to return a verdict of guilty on one count while not agreeing on the other, provided the verdicts were not inconsistent. The court held that the jury could have formed a view that the appellant was not capable of consenting to the second act of intercourse due to his state of intoxication, but was capable of consenting to the first act. The court also found that the sentencing judge had not erred in taking into account the appellant's self-induced intoxication as a mitigating factor, but had erred in giving it too much weight. The court held that while self-induced intoxication could not be considered as a mitigating factor, it was relevant to the assessment of the objective seriousness of the offending and the purposes of sentencing. The court found that the sentence was manifestly inadequate and exercised its residual discretion to intervene.

The High Court quashed the conviction on the second count and remitted the matter to the Court of Criminal Appeal for re-sentencing. The Court of Criminal Appeal was directed to consider all the circumstances that inform the sentencing exercise, except the appellant's self-induced intoxication, and to ensure that the sentence reflected the gravity of the offending and the purposes of sentencing. The Court of Criminal Appeal was also directed to consider whether the sentence imposed was manifestly inadequate in light of the objective seriousness of the offending and the purposes of sentencing.