R v Fisher - [2008] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 399 of 2006

THE QUEEN
	v
MICHAEL DAVID FISHER

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JUDGES:	WARREN CJ and BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2008
DATE OF JUDGMENT:	30 January 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 11

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CRIMINAL LAW – Sentencing – Sexual offences – Rape – Indecent assault – Guilty plea – Whether sufficient regard given to appellant desisting attack – Open for judge to conclude appellant’s police interview was ‘concocted web of lies’ – No manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Sharpley	M K Steele and Giammario

WARREN CJ:

The appellant, Michael David Fisher, pleaded guilty to one count of rape and one count of indecent assault in the County Court. The maximum penalties for these offences are 25 years' and 10 years' imprisonment respectively. The appellant also pleaded guilty to one count of possessing a drug of dependence, that offence carrying a maximum penalty of 30 penalty units, level 8 imprisonment or both. He also pleaded guilty to one count of possessing an unregistered Category A long-arm in contravention of s 6A(1) of the Firearms Act1996, carrying a maximum penalty of two years' imprisonment.

The circumstances of the offending were that the appellant attacked a 42 year old woman, the complainant, approaching a footbridge in Eltham at approximately 7.15 am on Saturday 4 March 2006. The complainant was running on a shared footway that follows the course of the Diamond Creek in Eltham. The appellant was drinking a can of beer at the time. As the complainant approached the appellant, he glanced over his shoulder a couple of times and looked at her. When the appellant crossed the bridge, he stood to the side and started to pat his jeans as if he was looking for something in his pockets. The complainant was using an iPod, which she had turned down to be able to hear if the appellant approached her. As the complainant went past him, she looked over her left shoulder and the appellant lunged at her. He grabbed both her arms and she screamed and ran to the middle of the nearby road. The complainant pushed her iPod towards the appellant and asked him to take it. The appellant pushed the complainant off the roadway towards the left side of the footbridge, into some bushes. The complainant was screaming for help. She begged the appellant not to hurt her. The appellant held her by the arms, pushing her, and said, 'Don't make me kill you.' She was pushed to the ground, landing on her back. The appellant removed the complainant's running shoes. Meanwhile, she continued to call for help, and so the appellant placed his hand over her nose and mouth such that she was unable to breathe properly. The complainant turned over onto her knees and made…

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 R v Fisher

Details

AGLC: R v Fisher [2008] VSCA 11
Case: [2008] VSCA 11
Decision Date: 30 January 2008

CaseChat Overview and Summary

The case of R v Fisher involved the appellant who was convicted of various sexual offences, including rape and indecent assault. The matter was heard in the court of appeal where the appellant contested the severity of the sentence imposed. The trial judge had sentenced the appellant to a significant period of imprisonment, and the appeal focused on whether the judge had appropriately considered certain mitigating factors, including the appellant’s decision to stop the attack midway. The appellant argued that insufficient regard was given to this aspect during sentencing.

The legal issues before the court were whether the trial judge had erred in failing to appropriately weigh the mitigating factors and whether the judge's characterisation of the appellant’s police interview as a 'concocted web of lies' was justified and appropriately considered. The court needed to determine if the sentence imposed was manifestly excessive and if the trial judge’s conclusions were open to him based on the evidence presented.

The court held that the trial judge was entitled to form the view that the appellant’s police interview was a fabricated account. The judge had considered all relevant mitigating factors, including the appellant’s cessation of the attack, and found that these factors did not warrant a significantly reduced sentence. The court found that there was no manifest excess in the sentence imposed and that the trial judge’s reasoning was sound. Consequently, the appeal was dismissed, affirming the original sentence.

Orders