Fisher v The Queen

[2014] NTCCA 19

Fisher v The Queen [2014] NTCCA 19

PARTIES:  FISHER, Michael Francis  

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 8 of 2014 (21347035)

DELIVERED:  19 December 2014

HEARING DATES:  19 November 2014

JUDGMENT OF:  RILEY CJ, SOUTHWOOD

and BARR JJ

APPEALED FROM:  BLOKLAND J

CATCHWORDS:

CRIMINAL LAW – appeal against sentence – delay in prosecution –progress and rehabilitation of the offender significant considerations – insufficient weight given to progress and rehabilitation – appeal allowed and offender re-sentenced.

CRIMINAL LAW – appeal against sentence – totality principle – application where offences of same nature committed in different states about the same time – principles in Mill v The Queen – sentence excessive in light of prior sentence in another jurisdiction – appeal allowed and offender re-sentenced.

Mill v The Queen (1988) 166 CLR 59; Regina v The Queen (2004) 149 A Crim R 583, applied.

R v Todd [1982] 2 NSWLR 517, referred to.

REPRESENTATION:

Counsel:

Appellant:R Goldflam

Respondent:  P Usher

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fisher v The Queen [2014] NTCCA 19

No CA 8 of 2014 (21347035)

BETWEEN:

MICHAEL FRANCIS FISHER

Appellant

AND:

THE QUEEN

Respondent

CORAM:     RILEY CJ, SOUTHWOOD and BARR JJ

REASONS FOR JUDGMENT

(Delivered 19 December 2014)

THE COURT:

1. On 27 February 2014, the appellant was sentenced in the Supreme Court to six years imprisonment with a non-parole period of four years and three months for four sexual offences committed against his stepdaughter between 2004 and 2006. The appellant appeals against the sentence on two grounds: (a) the sentencing judge failed to adequately take into account the delay in the prosecution of these offences; and (b) the sentencing judge did not approach the totality principle correctly in accordance with the principles identified by the High Court in Mill v The Queen.[1]

2. The sentencing process was complicated because on 9 February 2010, the appellant pleaded guilty in the District Court of Western Australian to sexual offences he committed against the same victim and against his own daughter in Western Australia after he committed the sexual offences in the Northern Territory.

   The history

3. It is necessary to consider the history of the proceedings.

4. The appellant's stepdaughter, A, was born in July 1994. In January 2000, the appellant married A’s mother. In November 2000, they had a child together, L. In April 2004, the marriage failed. Between 2004 and 2006 (when A was between 10 and 12 years of age), the appellant committed two counts of gross indecency and two counts of having sexual intercourse with a child who is under the age of 16 years against her.

5. In July 2006, the mother and the two children moved to Western Australia. In August 2006, the appellant moved to Western Australia where, between September 2006 and May 2008, he committed further sexual offences against A, and in February/March 2009, he committed sexual offences against L.

6. In March 2009, Western Australian police interviewed the appellant and he made full admissions to all of the offending including the Northern Territory offences. On 9 February 2010, he was sentenced by the Western Australian District Court to imprisonment for four years and two months with a non-parole period of two years and two months for three counts of indecent dealing against L and two counts of indecent dealing and four counts of sexual penetration against A.

7. The appellant took a very proactive approach to his rehabilitation. Before being sentenced in Western Australia, he undertook 12 sessions of psychological treatment. Whilst he was in prison in Western Australia, he completed numerous rehabilitation programs including the Medium Sex Offender Program. In January 2012, he was transferred to a New South Wales prison where he was assessed as “low risk of sexual offending”. In March 2012, he was released on parole in New South Wales. Between May 2012 and October 2013, he attended 25 sessions of psychological treatment. In June 2012, he obtained and subsequently maintained full-time employment as a labourer in an engineering workshop.

8. New South Wales Corrective Services reported that his conduct on parole was “positive and satisfactory”. At the time of sentencing in the Northern Territory, the offender was assessed as a “low recidivism risk and a good rehabilitation prospect” by his treating psychologist.

9. It was not until 13 September 2012 that warrants for his arrest for the sexual offences committed in the Northern Territory were issued. He was arrested some 12 months later in October 2013 and extradited to Alice Springs. In November 2013, he indicated a plea of guilty to the Northern Territory charges.

10. On 27 February 2014, the appellant was sentenced to the term of imprisonment the subject of this appeal. The sentencing judge indicated that, prior to discount for the plea, the total sentence would have been in the order of nine years. After allowing for the discount for the plea, the following individual sentences were imposed on the appellant by the sentencing judge:

    (a)Count 1: an act of gross indecency where the appellant removed the underwear of his 10-year-old victim and rubbed her vagina – imprisonment for three years;

    (b)Count 2: an act of gross indecency where the appellant exposed his penis and tried to insert it into the mouth of his 11-year-old victim and became angry when she resisted – imprisonment for three years;

    (c)Count 3: an act of sexual intercourse with his 10-year-old victim constituted by licking her vagina – imprisonment for four years;

    (d)Count 4: an act of sexual intercourse with his 11-year-old victim constituted by licking her vagina – imprisonment for four years.

11. Her Honour directed that the sentences in relation to counts 1 and 2 be served concurrently. The sentence in relation to count 3 was directed to be served concurrently as to one year and cumulatively as to three years on the sentences on counts 1 and 2. The sentence in relation to count 4 was directed to be served concurrently as to one year and cumulatively as to three years on the sentences on counts 1 and 2. The total effective sentence was therefore imprisonment for six years.

12. There has been no challenge to the individual sentences imposed.

    The sentence

13. It is common ground on the appeal that the sentencing judge did not receive adequate assistance from either counsel about the relevant principles applicable to the sentencing exercise nor was appropriate reference made to the guidance provided by the relevant authorities.

14. The totality principle is a well-recognised principle of sentencing. Its application is more complicated where an offender commits a number of offences within a short space of time in more than one State or Territory.  In Regina v The Queen,[2] the Court of Criminal Appeal stated:

    [20] The High Court recognised that the application of the principle is more complicated where an offender commits a number of offences within a short space of time in more than one State. The court approved the following remarks of Street CJ in R v Todd[3]as applicable to the fixing of both the head sentence and non-parole period, and as reflecting “a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another state in respect of an offence of the same nature and committed at about the same time”:

    (I)t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences …
    … where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

    
    

    [21] The circumstances before the High Court in Mill involved an offender who committed two armed robberies in Victoria and one in Queensland within a period of six weeks during December 1979 and January 1980. In September 1980 the offender was sentenced to imprisonment for ten years in respect of the Victorian offences. On his release on parole he was extradited to Queensland where, in March 1988, he was sentenced to eight years imprisonment. In that situation, the court expressed the view that the proper approach was:

    
    
    

    … to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.

    (References omitted)

15. In Mill v The Queen[4] the High Court observed:

    Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a long head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.

16. The sentencing judge did not adopt the approach reflected in those authorities. In the course of the sentencing remarks, her Honour said:

    I will allow for a substantial concurrency between the counts. Given any concurrency as between the Western Australia and Northern Territory offences or totality considerations has not, of course, been possible.

17. In our opinion, her Honour fell into error. The totality principle had application and should have been a significant consideration in determining an appropriate sentence. The total sentence should have been determined in accordance with the observations of the High Court in Mill. The delay between the two sets of proceedings and the substantial progress made by the appellant in his rehabilitation should also have been significant considerations.

18. The offending in Western Australia and the Northern Territory was similar and a number of the offences involved the same victim. The offending largely involved a single course of criminal conduct spread over a period of time. The offending commenced in the Northern Territory in late 2004 and concluded in Western Australia in early 2009. When spoken to by police in March 2009, the appellant admitted the offending in both jurisdictions. Since then, he has spent a substantial period of time in custody and has made extensive efforts, both in custody and when at large, to effect his rehabilitation. The reports of the psychologist and from Corrective Services in New South Wales, along with his employment history and strong family support, provide strong grounds for concluding that he has good prospects of rehabilitation.

19. The total sentence imposed on the offender for the whole of his offending in Western Australia and the Northern Territory is 10 years and two months.  The sentencing remarks of the District Court in Western Australia reveal that the matter was fast-tracked but no discount for an early plea and co-operation was specified.  If a similar discount to that specified by the Supreme Court of the Northern Territory was allowed in Western Australia, the starting total head sentence would be 15 years and three months.  If a 25 percent discount was allowed by the District Court, the total sentence would be 14 years and six months.  In our opinion, a total starting sentence of 14 years or above would be manifestly excessive.  If all of the matters were dealt with at the same time, considerations of concurrency and the totality principle would have resulted in a lesser sentence.

20. Importantly, the sentence imposed did not give adequate weight to the very real progress that had been made in relation to the rehabilitation of the appellant in the period between the imposition of the sentence in Western Australia and the sentence in the Northern Territory. There was a substantial delay and, during that time, the appellant had taken very significant steps to rehabilitate himself and, it appears, with a degree of success.

21. The appeal is allowed.

    Re-sentence

22. It is necessary for us to re-sentence the appellant. For the reasons expressed in the authorities to which we have referred, we must seek to achieve a just sentence in all the circumstances. There was no real challenge to the individual sentences imposed by her Honour. We see no reason to depart from those individual sentences. The issue is to devise an appropriate total sentence in the unusual circumstances of this case.

23. We do not interfere with the individual sentences imposed by her Honour.  In all the circumstances and to reflect the totality principle and to allow for appropriate mitigation for the delay, we direct that those sentences be served concurrently with each other giving a total head sentence for the offending in the Northern Territory of imprisonment for four years.  We set a non-parole period of two years and 10 months.  The sentence will be deemed to have commenced on 22 October 2013.

==================

[1] (1988) 166 CLR 59.

[2] (2004) 149 A Crim R 583 at 587-581 [19]-[21].

[3] [1982] 2 NSWLR 517 at 519-520.

[4] (1988) 166 CLR 59 at 67.