R v Fischer

Case [2009] NSWDC 31

Reported Decision:

District Court


CITATION: R v Fischer [2009] NSWDC 31
HEARING DATE(S): 24/11/2008 - 10/12/2008
 
JUDGMENT DATE: 
27 February 2009
JURISDICTION: Criminal
JUDGMENT OF: Knox SC DCJ
DECISION: The overall effect of the sentence is that the offender is sentenced to 5 years imprisonment with a non-parole period of 3 years.
CATCHWORDS: Criminal law - sentence - historical offences - sexual offences - sexual intercourse - indecent assault - old age offender - tendency and coincidence
LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Child Protection (Offenders Registration) Act 2000
Evidence Act 1995
CASES CITED: AJB v R [2007] NSWCCA 51
R v AJP (2004) 150 A Crim R 575
Bradbury v R [2008] NSWCCA 93
Cahyadi v R [2007] NSWCCA 1
The Queen v De Simoni (1981) 147 CLR 383
Dousha v R [2008] NSWCCA 263
Featherstone v R [2008] NSWCCA 71
FV v R [2006] NSWCCA 237
R v George [2004] NSWCCA 247
R v Gould [1999] NSWCCA 177
Ibbs v R (1987) 163 CLR 447
R v KNL [2005] NSWCCA 260
R v LTP [2004] NSWCCA 109
R v MJR [2002] NSWCCA 129
MLP v R [2006] NSWCCA 271
R v Moon (2000) 117 A Crim R 497
Nelson v R [2007] NSWCCA 221
R v Rapley [1999] NSWCCA 302
R v Risby [2008] NSWDC 300
Shannon v R [2006] NSWCCA 39
R v Sullivan (unrep. NSWCCA 20/10/89)
R v Totten [2003] NSWCCA 207
R v Trevanna [2004] NSWCCA 43
R v Virgona [2004] NSWCCA 415
R v White [1999] NSWCCA 366
PARTIES: Regina
Peter Brian Fischer
FILE NUMBER(S): 08/11/0362
COUNSEL: Crown: Ms K Shead
Defence: Mr T Stuart
SOLICITORS: Crown: Ms A Ilardo
Defence: Mr D Mockler

JUDGMENT

Indictment and trial

1 The offender was found guilty after a trial before a jury in the District Court at Sydney on the following counts on an indictment:

Count 1

2 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did assault SC, a person then under the age of 16 years, that is, of the age of 11 years, and at the time of the assault did commit an act of indecency upon her.

Count 2

3 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did have sexual intercourse with SC, a person then under the age of 16 years, that is, of the age of 11 years, without her consent and knowing that she was not consenting thereto.

Count 4

4 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did have sexual intercourse with SC, a person then under the age of 16 years, that is, of the age of 11 years, without her consent and knowing that she was not consenting thereto.

Count 6

5 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did assault SC, a…

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AGLC
R v Fischer [2009] NSWDC 31
Case
[2009] NSWDC 31
Decision Date

CaseChat Overview and Summary

The matter of R v Fischer came before the court where the appellant was convicted of several historical sexual offences. The respondent argued for a severe penalty given the nature and age of the crimes. The appellant, in turn, sought a lenient sentence due to his advanced age and other personal circumstances. The court was tasked with determining an appropriate penalty, considering both the gravity of the offences and the appellant's age.

The central legal issues revolved around the appropriate sentence for historical sexual offences committed by an elderly offender. The court needed to balance the severity of the crimes against the appellant's age and the potential for rehabilitation. Additionally, the court had to consider the principles of proportionality and deterrence in sentencing. The court also had to address the tendency and coincidence factors in relation to the multiple offences.

In delivering the judgment, the court acknowledged the serious nature of the historical sexual offences committed by the appellant. However, it also considered his age and the potential for rehabilitation. The court concluded that while the crimes warranted a significant penalty, the appellant's age and other mitigating factors warranted a reduced sentence. The court ultimately determined that the appropriate sentence was 5 years imprisonment with a non-parole period of 3 years. This sentence balanced the need for punishment and deterrence with the realities of the appellant's circumstances.

Orders

Orders of the court

The overall effect of the sentence is that the offender is sentenced to 5 years imprisonment with a non-parole period of 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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