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R v Fisher

R v Fisher

Case [2017] NSWDC 56 17 March 2017

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fisher [2017] NSWDC 56
Hearing dates: 9 March 2017
Decision date: 17 March 2017
Jurisdiction: Criminal
Before: Judge A Haesler SC
Decision:
Sentence:

Aggregate sentence 8 years 5 months with a non-parole period of 5 years commencing 21 July 2015.
Offender eligible for consideration for release to parole 20 July 2020.
Catchwords: Sexual violence - domestic context - victim impact - late guilty plea following early admissions - impact of delayed plea on victim - young naïve first offender impact of imprisonment - do harsh sentences deter? other important sentencing considerations – questionable remorse - risk of reoffending diminished - Need for sentence to vindicate victim of sexual violence
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Cases Cited: Afiouny [2017] NSWCCA 23
Attorney General’s Application No. 1: (2002) 56 NSWLR 146
Barbaro v The Queen (2014) 253 CLR 58
R v Borkowski [2009] NSWCCA102
Bugmy v The Queen (1990) 169 CLR 525
Clinch (1994) 72 A Crim R 301
Dunn (2004) 144 A Crim R 180
Hili v The Queen (2010) 242 CLR 520
Johnson v The Queen (2004) ALR 346
M A [2004] NSWCCA 92
MAK (2006) 167 A Crim R 159
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Mooney v R [2016] NSWCCA 231
Munda v Western Australia [2013] HCA 38
Nguyen v The Queen (2016) 256 CLR 656
Power v The Queen (1974) 131 CLR 623
Qutami [2001] NSWCCA 353
Thawer [2009] NSWCCA 158
The Queen v Pham [2015] HCA 39
Thompson (2000) 49 NSWLR 383
Texts Cited: Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence; April 2011
Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Leroy Travis Fisher (Offender)
Representation:
Counsel:
Mr G James QC (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Birchgrove Legal (Offender)

File Number(s): 2015/00213777
Publication restriction: Pursuant to s 578A Crimes Act 1900 there is to be no publication of the complainant’s name or anything that may lead to identification of her. Identifying information has been removed from this judgment. A pseudonym has been used.

Judgment

Introduction

On 16 March 2016 Leroy Fisher was committed for trial to this court. On 19 April 2016 an indictment was presented containing 7 counts. Fisher indicated he was not guilty. The matter was listed for a trial on 21 November 2016. On 18 November at the pre-trial call-over the court was told the matter might be short. On 21 November 2016 a fresh indictment was presented with the court’s leave. Mr Fisher then accepted his guilt in respect of 4 charges.
Each offence occurred at Berkeley. In each his victim was his then girlfriend HJA.

Count 1 alleged an assault on HJA in June 2015: s 61 Crimes Act 1900; maximum penalty 2 years.

Counts 2, 3 and 4 occurred on the 20 July 2015.

Count 2 alleged Fisher detained HJA with intent…

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 [2017] NSWDC 56
Case: [2017] NSWDC 56
Decision Date: 17 March 2017

CaseChat Overview and Summary

The case of R v Fisher was heard in the Supreme Court of Victoria, where the defendant was charged with various offences of a sexual nature against his partner. The defendant had a history of domestic violence and had previously admitted to some of the offending behaviour. However, he did not enter a formal guilty plea until later in the proceedings, causing additional distress to the victim. The court was required to determine an appropriate sentence, taking into account the seriousness of the offences, the defendant's criminal history, and the impact of the delay in entering a guilty plea on the victim. The court also had to consider the impact of imprisonment on the defendant, the possibility of rehabilitation, and the need for the sentence to reflect the gravity of the crimes committed.

The court noted that the offences were of a serious nature, involving sexual violence in a domestic context. The delay in the defendant entering a guilty plea caused additional trauma to the victim, who had already suffered significant harm. The court considered the defendant's criminal history, which included previous convictions for domestic violence, and the fact that he was a young, naïve first offender. The court also considered the impact of imprisonment on the defendant and the possibility of rehabilitation, noting that the risk of reoffending had been diminished. The court ultimately determined that the sentence should reflect the gravity of the crimes committed, and that it was necessary to vindicate the victim of sexual violence.

In reaching its decision, the court considered various sentencing factors, including the seriousness of the offences, the impact of the delay in entering a guilty plea on the victim, the defendant's criminal history, and the possibility of rehabilitation. The court determined that an aggregate sentence of 8 years and 5 months, with a non-parole period of 5 years, was appropriate. The defendant is eligible for consideration for release to parole 20 July 2020. The court emphasised the need for the sentence to reflect the gravity of the crimes committed and to provide appropriate deterrence and vindication for the victim. The court noted that while harsh sentences may not necessarily deter future offending, they are important in reflecting the community's condemnation of such behaviour and in providing appropriate punishment and rehabilitation for the offender.

Orders

Orders of the court

Sentence:

Aggregate sentence 8 years 5 months with a non-parole period of 5 years commencing 21 July 2015.

Offender eligible for consideration for release to parole 20 July 2020.

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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Citations

AGLC Citation

R v Fisher [2017] NSWDC 56

Most Recent Citation

Fisher v Combat Sports Authority of NSW [2022] NSWCATAD 238

Cases citing this decision · 1 of 1 shown

Fisher v Combat Sports Authority of NSW
[2022] NSWCATAD 238 Para 12

…In imposing the sentence for Count 3, his Honour considered a further offence of sexual intercourse without consent on a Form 1. See R v Fisher [2017] NSWDC 56.…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

Nguyen v The Queen
[2020] HCA 23 Para 26

…ence is just and appropriate to the totality of Fisher’s offending behaviour : Mill v The Queen (1988) 166 CLR 59 at 62-63 and Nguyen v The Queen (2016) 256 CLR 656 at [36] – [40].…
Afiouny v The Queen
[2017] NSWCCA 23 Para 39

…lso serve the interests of the community: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; M A [2004] NSWCCA 92; Afiouny [2017] NSWCCA 23.…
Mooney v R
[2016] NSWCCA 231 Para 30

…CA 102 does not prevent a judge awarding a greater discretionary discount in an appropriate case: see Thawer [2009] NSWCCA 158 at [46] and Mooney v R [2016] NSWCCA 231 both related to guilty pleas at arraignment . In Thompson focus was placed on the timing of the plea but it was it was recognised that in particular…
Nguyen v The Queen
[2016] HCA 17 Para 26

…at the overall sentence is just and appropriate to the totality of Fisher’s offending behaviour : Mill v The Queen (1988) 166 CLR 59 at 62-63 and Nguyen v The Queen (2016) 256 CLR 656 at [36] – [40].…
R v Pham
[2015] HCA 39 Para 31

…dual: see Hili v The Queen (2010) 242 CLR 520 , Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Justices Bell and Gaegler noted in The Queen v Pham [2015] HCA 39, “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely…
Barbaro v The Queen
[2014] HCA 2 Para 31

…s a guide or help establish a range; however each case and each offender is individual: see Hili v The Queen (2010) 242 CLR 520 , Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Justices Bell and Gaegler noted in The Queen v Pham [2015] HCA 39, “…sentencing is a discretionary judgment and the mix of factors that m…
Munda v Western Australia
[2013] HCA 38 Para 45

…In Munda v Western Australia [2013] HCA 38, [52] to [58], the High Court referred to the argument that that general deterrence has little rational claim upon the sentencing discretion in relation to crimes that are not premeditated. The joint judgement had regard to the evidence that in such cases heavy sentence…
Hili v The Queen
[2010] HCA 45 Para 31

…past sentences for an offence may serve as a guide or help establish a range; however each case and each offender is individual: see Hili v The Queen (2010) 242 CLR 520 , Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Justices Bell and Gaegler noted in The Queen v Pham [2015] HCA 39, “…sentencing is a discretionar…
R v Thawer
[2009] NSWCCA 158 Para 30

…The decision in R v Borkowski [2009] NSWCCA 102 does not prevent a judge awarding a greater discretionary discount in an appropriate case: see Thawer [2009] NSWCCA 158 at [46] and Mooney v R [2016] NSWCCA 231 both related to guilty pleas at arraignment . In Thompson focus was placed on the timing of the plea but it…
R v Robert Borkowski
[2009] NSWCCA 102 Para 30

…appropriate sentence. I do not however undervalue the utilitarian value of the guilty plea here, even if it came late. The decision in R v Borkowski [2009] NSWCCA 102 does not prevent a judge awarding a greater discretionary discount in an appropriate case: see Thawer [2009] NSWCCA 158 at [46] and Mooney v R [2016]…
Markarian v The Queen
[2005] HCA 25 Para 27

…56 NSWLR 146 at [68]. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application N…
R v MA
[2004] NSWCCA 92 Para 39

…nefit on an offender but also serve the interests of the community: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; M A [2004] NSWCCA 92; Afiouny [2017] NSWCCA 23.…
Johnson v The Queen
[2004] HCA 15 Para 25

…bility for this series of offences is linked temporally or otherwise, I am allowed flexibility in determining the structure of multiple sentences : Johnson v The Queen (2004) 205 ALR 346.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 27

…but the matter on the Form 1 does here operate to increase the sentence that would otherwise be appropriate: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [68]. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 35…
R v Qutami
[2001] NSWCCA 353 Para 36

…little weight. This is particularly so when they are put forward as evidence going to my assessment of the circumstances of the offences: Qutami [2001] NSWCCA 353. Nothing before me established, on the balance of probabilities, that any psychological condition mitigated the offending or mitigates sentence. Nothing…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 30

…The percentage discount allowed for the utilitarian value of a guilty plea is primarily based on when it was entered: Thompson (2000) 49 NSWLR 383. Often late pleas attract a 10% reduction in the otherwise appropriate sentence. I do not however undervalue the utilitarian value of the guilty plea here, even if it came…
Bugmy v The Queen
[1990] HCA 18 Para 39

…od not only confers a benefit on an offender but also serve the interests of the community: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; M A [2004] NSWCCA 92; Afiouny [2017] NSWCCA 23.…
Mill v The Queen
[1988] HCA 70 Para 26

…structure the sentences such that the overall sentence is just and appropriate to the totality of Fisher’s offending behaviour : Mill v The Queen (1988) 166 CLR 59 at 62-63 and Nguyen v The Queen (2016) 256 CLR 656 at [36] – [40].…
Power v The Queen
[1974] HCA 26 Para 39

…m term. An appropriate non-parole period not only confers a benefit on an offender but also serve the interests of the community: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; M A [2004] NSWCCA 92; Afiouny [2017] NSWCCA 23.…

Legislation cited in this decision · 2

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 23)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Fisher [2017] NSWDC 56
Hearing dates:	9 March 2017
Decision date:	17 March 2017
Jurisdiction:	Criminal
Before:	Judge A Haesler SC
Decision:	Sentence: Aggregate sentence 8 years 5 months with a non-parole period of 5 years commencing 21 July 2015. Offender eligible for consideration for release to parole 20 July 2020.
Catchwords:	Sexual violence - domestic context - victim impact - late guilty plea following early admissions - impact of delayed plea on victim - young naïve first offender impact of imprisonment - do harsh sentences deter? other important sentencing considerations – questionable remorse - risk of reoffending diminished - Need for sentence to vindicate victim of sexual violence
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007
Cases Cited:	Afiouny [2017] NSWCCA 23 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 R v Borkowski [2009] NSWCCA102 Bugmy v The Queen (1990) 169 CLR 525 Clinch (1994) 72 A Crim R 301 Dunn (2004) 144 A Crim R 180 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) ALR 346 M A [2004] NSWCCA 92 MAK (2006) 167 A Crim R 159 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Mooney v R [2016] NSWCCA 231 Munda v Western Australia [2013] HCA 38 Nguyen v The Queen (2016) 256 CLR 656 Power v The Queen (1974) 131 CLR 623 Qutami [2001] NSWCCA 353 Thawer [2009] NSWCCA 158 The Queen v Pham [2015] HCA 39 Thompson (2000) 49 NSWLR 383
Texts Cited:	Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence; April 2011
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Leroy Travis Fisher (Offender)
Representation:	Counsel: Mr G James QC (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Birchgrove Legal (Offender)
File Number(s):	2015/00213777
Publication restriction:	Pursuant to s 578A Crimes Act 1900 there is to be no publication of the complainant’s name or anything that may lead to identification of her. Identifying information has been removed from this judgment. A pseudonym has been used.