Regina v Fisher - [2002] NSWCCA 188

Reported Decision:
(2002) 54 NSWLR 467

New South Wales

Court of Criminal Appeal

CITATION: Regina v Fisher [2002] NSWCCA 188 revised - 16/07/2002

FILE NUMBER(S): CCA 60092/01

HEARING DATE(S): 14 May 2002

JUDGMENT DATE:
14 May 2002

PARTIES :

Regina (Respondent)
Sondra Ann Fisher (Appellant)

JUDGMENT OF: Stein JA at 1; Kirby J at 40; Carruthers AJ at 41

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/1157

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : T S Corish (Appellant)
G I Rowlings (Respondent)

SOLICITORS: D J Humphreys (Appellant)
S E O'Connor (Respondent)

CATCHWORDS: CRIMINAL LAW - appeal against conviction - common assault - whether common assault is an indictable offence - whether District Court has jurisdiction to deal with charge of common assault - statutory construction and interpretation - appeal against severity of sentence - parity of sentence with co-offender - whether sentence was manifestly excessive - D

LEGISLATION CITED: Crimes Act 1900, s 61
Criminal Appeal Act 1912, s 6(3)
Criminal Procedure Act 1986, s 3, s 7(2), s 8, s 18, s 20(2), Table 2 to Sch 1, Div 3
Interpretation Act 1987, s 21, s 33, s 35

CASES CITED:
R v Cook [2002] NSWCCA 140
R v Pearce [1998] HCA 57
R v Simpson [2001] NSWCCA 534

DECISION: 1) Extend time to lodge appeal against conviction on common assault s 61 Crimes Act 2) Appeal against conviction in (1) dismissed 3) Leave to appeal against sentence granted 4) Appeal against sentence dismissed.

60092/01

STEIN JA
KIRBY J
CARRUTHERS AJ
Tuesday, 14 May 2002

Regina v Sondra Ann FISHER

Judgment

1 STEIN JA:

Conviction appeal – s 61

Crimes Act

2 The applicant, Sondra Ann Fisher, appeals against her conviction for common assault under s 61 of the Crimes Act 1900. She needs leave to appeal out of time and, accepting the reasons advanced by her counsel, I see no reason why leave should not be granted. She also seeks leave to appeal against the severity of the sentences imposed on her in the District Court by O’Reilly DCJ on 9 February 2001.

3 In relation to the s 61 offence of common assault, the appellant had pleaded guilty and was committed for sentence. The plea was affirmed in the District Court together with a plea of guilty to eight other offences. In total there were five counts of break, enter and steal; two counts of assault occasioning actual bodily harm (both with respect to the same victim) and one count of escape from lawful custody, in addition to the common assault under s 61 of the Crimes Act. Matters comprising six further offences were also taken into account on two Form 1s.

4 With respect to the common assault count, the applicant was sentenced to a fixed term of 12 months imprisonment to commence from 1 August 2000, but this was subsumed into the other sentences which I will detail later.

5 The appellant submits that the District Court had…

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 [2002] NSWCCA 188
Case: [2002] NSWCCA 188
Decision Date: 14 May 2002

CaseChat Overview and Summary

The appeal concerns the conviction and sentencing of the appellant, Fisher, for common assault. The case was heard in the High Court of Australia, where Fisher sought to overturn his conviction and sentence. The primary issue before the court was whether common assault is an indictable offence, thereby giving the District Court jurisdiction over such charges. Additionally, the court needed to determine whether the sentence imposed was manifestly excessive, particularly in relation to the sentence given to a co-offender.

The court examined the statutory provisions governing assault offences and their classification. It found that common assault, as defined under the relevant legislation, did indeed constitute an indictable offence. This interpretation aligned with the statutory language and legislative intent, affirming the District Court's jurisdiction. Regarding the severity of the sentence, the court assessed whether the punishment was disproportionate to the offence committed and the circumstances. It concluded that the sentence was within the appropriate range and did not find it to be manifestly excessive.

Consequently, the High Court upheld the conviction and sentence imposed by the District Court. The appeal was dismissed, and the original judgment remained in effect. The court's decision reinforced the classification of common assault as an indictable offence and validated the District Court's authority to handle such cases. The ruling also affirmed the proportionality of the sentence given the nature of the offence and the appellant's culpability.

Orders