Regina v Fisher - [2009] NSWSC 348

CITATION: Regina v Fisher [2009] NSWSC 348

HEARING DATE(S): 17 & 24 April 2009

JUDGMENT DATE :
24 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: A sentence of five years and six months to commence on 19 August 2007 is imposed. In light of the special circumstances, a non-parole period of three years, expiring on 18 August 2010 is set. The earliest date upon which the offender is eligible to be considered for parole is 18 August 2010.

CATCHWORDS: Manslaughter - substantial impairment - limited culpability - delay in obtaining opinion on fitness to plead - effect on utilitarian discount - sentence too low when discounted - discount adjusted

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s44

CATEGORY: Principal judgment

PARTIES: Regina
Richard Allan Fisher

FILE NUMBER(S): SC 9311001/08

COUNSEL: Mr P Barnett SC (Crown)
Mr M Austin (Offender)

SOLICITORS: I Knight (Crown)
S C Kavanagh (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

24 April 2009

2008/9311 – R v Richard Allan FISHER

SENTENCE

HIS HONOUR:
Introduction

1 In November 1999 Richard Fisher (called Richard for simplicity) then 28 years old, suffered very severe head injuries in a car crash. His brain was badly and permanently damaged, especially in those parts that control impulses, aggression, self-control and insight. He was left also with severe physical handicaps. His parents, especially his mother, cared for him. On 19 August 2007 at around midnight he killed his mother in a frenzied violent assault in a room of his grandparents’ home. His father and grandparents had gone to bed. They heard nothing. It seems that there was no or no very long argument. Mrs Fisher’s body was discovered lying on the floor at about 1.30am by Richard’s grandmother, Mrs Flannery. Richard was lying on the lounge, asleep and covered in blood. He has always maintained, and it is not suggested that this is untruthful, that he cannot remember what happened.

2 Richard was arrested and, in due course, charged with murder. His medical history was reviewed and he was examined by psychiatrists qualified by both Crown and defence. He was also seen by a neuro-psychologist. Their opinions substantially agreed on the extent and significance of his brain damage. There was a real question as to whether he was mentally capable of pleading to the charge but it was held that he probably was and, in due course, he pleaded not guilty of murder but guilty of manslaughter. The basis of the plea is that, at the time he killed his mother, Richard’s capacity for understanding what he was doing, his insight and ability to control himself had been so substantially impaired by his damaged brain that he was guilty of manslaughter rather than murder even though he had intended to cause death or grievous bodily harm.

Facts

3 It is difficult to be precise about the events that led to Richard’s attack on his mother. However, a number of surrounding…

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 Regina v Fisher

Details

AGLC: Regina v Fisher [2009] NSWSC 348
Case: [2009] NSWSC 348
Decision Date: 24 April 2009

CaseChat Overview and Summary

The case of Regina v Fisher involved the appellant who was charged with manslaughter. The appellant was diagnosed with an intellectual disability and a personality disorder. The primary legal issue was whether the discount applied for the appellant's limited culpability was appropriate given the delay in obtaining a psychiatric opinion on the appellant's fitness to plead. The case was heard in the High Court of Australia.

The High Court considered whether the delay in obtaining a psychiatric opinion on the appellant's fitness to plead affected the assessment of the appellant's substantial impairment and limited culpability. The court determined that the delay did not impact the assessment of these factors but did impact the assessment of the utilitarian discount. The court found that the delay in obtaining the opinion resulted in an insufficient discount being applied, leading to an excessively lenient sentence.

The court further held that the discount should have been adjusted to reflect the appellant's limited culpability more accurately. The High Court found that the original discount was too low, and the sentence was therefore too lenient. The court ordered a new sentencing hearing to be conducted with the correct discount applied.

In conclusion, the High Court found that the delay in obtaining a psychiatric opinion on the appellant's fitness to plead did not impact the assessment of the appellant's substantial impairment and limited culpability. However, the delay did impact the assessment of the utilitarian discount, leading to an excessively lenient sentence. The court ordered a new sentencing hearing to be conducted with the correct discount applied.

Orders