R v Fisher - [2019] ACTSC 370

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Fisher
Citation:	[2019] ACTSC 370
Hearing Date:	10 December 2019
DecisionDate:	20 December 2019
Before:	Burns J
Decision:	See [45]-[46]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aiding and abetting aggravated robbery – plea of guilty – guarded prospects for rehabilitation – consideration of general deterrence
Legislation Cited:	Criminal Code ACT (2002), ss 45, 310
Cases Cited:	R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v Henry [1999] NSWCCA 111; 106 A Crim R 149
Parties:	The Queen (Crown) Toby Allan Fisher (Offender)
Representation:	Counsel S Janackovic (Crown) J Moffet (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 8 of 2019

BURNS J

Toby Fisher, on 1 October 2019, you entered a plea of guilty to one charge [SCCAN 3770/2019] alleging that on 18 October 2017, you aided and abetted Aren Apps to commit robbery with an offensive weapon, contrary to ss 310 and 45 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 25 years' imprisonment, 2,500 penalty units, or both.

The Facts

An agreed Statement of Facts was tendered on 1 October 2019. On 18 October 2017, you met the victim at the city bus interchange and invited him to your co-offender’s apartment in Turner. You were wearing a red jumper at the time.

You would often associate with your co-offender, Mr Apps, at his mother's apartment in Turner. Your co-offender stayed in the apartment with his mother, his then girlfriend, and his mother's then partner, Shane Sebbens. You and your co-offender have been friends for over 13 years since school age.

After leaving the city interchange, you and the victim walked towards the apartment in Turner where you came across your co-offender. The three of you then walked towards the apartment in Turner. You then met up with your co-offender's mother and his then girlfriend. The five of you all walked towards the apartment. Sometime before 1.00 pm, the group of you entered your co-offender's mother's flat and the front door was locked after you entered. Mr Sebbens was in the apartment at the time.

The victim sat down at the kitchen table. Your co-offender said to you, “Let's rob this guy”. You picked up an aluminium baseball bat, approached the victim and struck him on the forehead with the bat, leaving a laceration to his head. The laceration started bleeding down his face, onto his shirt and onto the kitchen floor.

Meanwhile, your co-offender had armed himself with a metal pole in one hand and a knife in the other hand. The co-offender demanded that the victim hand over his money. He used the pole to hit the victim on the forearm and said, “I'm going to kill you, I'm going to kill you. Give me your money, give me your money”. You said to the victim, “You better…

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 [2019] ACTSC 370
Case: [2019] ACTSC 370
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appellant, Fisher, was convicted of aiding and abetting an aggravated robbery and appealed the sentence imposed by the Supreme Court of the relevant state. The trial judge had found Fisher to have played a peripheral role in the crime, which involved significant violence. The Court of Appeal was tasked with determining whether the sentence was appropriate given the nature of the offence and Fisher's prospects for rehabilitation.

The central legal issue was whether the sentence of imprisonment, which was 15 years with a non-parole period of 10 years, was excessive or manifestly inadequate. The appeal hinged on whether the trial judge appropriately balanced the need for general deterrence against Fisher's relatively minor role in the crime and his prospects for rehabilitation. The court needed to consider the principles of sentencing in the context of aiding and abetting an aggravated robbery and assess whether the trial judge had erred in weighing these principles.

The Court of Appeal found that the trial judge had appropriately considered the principles of sentencing. The court held that the sentence was not manifestly inadequate, despite Fisher's peripheral role, due to the seriousness of the crime and the need for general deterrence. The court noted that Fisher's prospects for rehabilitation were poor, which supported a longer sentence. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the Supreme Court. The non-parole period of 10 years was maintained as appropriate given the nature of the crime and the need for general deterrence.

Orders

Orders of the court

See [45]-[46]

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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