Regina v Fisher - [2001] NSWCCA 143

CITATION: Regina v Fisher [2001] NSWCCA 143

FILE NUMBER(S): CCA 60294/00

HEARING DATE(S): 4/4/01

JUDGMENT DATE:
4 April 2001

PARTIES :

REGINA v STEVEN FISHER

JUDGMENT OF: O'Keefe J at 1;23; Smart AJ at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3028

LOWER COURT JUDICIAL
OFFICER : Ford DCJ

COUNSEL : Ms P Hock - for Crown
Mr T J Golding - for applicant

SOLICITORS: S E O'Connor - for Crown
D J Humphreys - for applicant

CATCHWORDS: Make and use false instrument - Appeal against sentence - Positions of trust abused - Confession before approached by police - Plea of guilty at earliest possible time - Gambling addiction - Re-sentencing - Constraints on Court of Criminal Appeal

CASES CITED:
Regina v El Rashid (CCA unreported 7 April 1995)
Regina v Brillo (CCA unreported 14 May 1997)

DECISION: Leave to appeal be granted.; 2. The appeal against sentence be allowed and the existing sentences quashed.; 3. The applicant be sentenced on the first count to a fixed term of imprisonment of one year and nine months commencing on 5 May 2000 and expiring on 4 February 2001.; 4. The applicant be sentenced to a fixed term of two years imprisonment on each of counts 2 to 11 inclusive, such term to commence on 5 May 2000 and to expire on 4 May 2002.; 5. The applicant be sentenced to a term of five years imprisonment on count 12, consisting of a minimum term of two years and six months to be concurrent with the sentences imposed in respect of counts 1 and 2 to 11 above. The minimum term is to expire on 4 November 2002 and the additional term to expire on 4 May 2005.

IN THE COURT OF
CRIMINAL APPEAL

No: 60294/00

O’Keefe J
SMART AJ

Wednesday, 4 April 2001

REGINA v STEVEN FISHER

JUDGMENT

1 O'KEEFE J: On 14 April 2000, Steven Fisher (the applicant), pleaded guilty to six counts of making a false instrument and six counts of using such an instrument. The instruments involved were National Australia Bank's cheques for the following amounts: $11,880, $35,904, $34,944, $34,944, $30,144 and $31,992 drawn on the account of Australian Ultra Polymers Pty Limited. In addition, a further forty-eight instances of making false instruments and forty-eight instances of using such instruments were included on a schedule which was taken into account by the sentencing Judge.

2 On 5 May 2000, the Judge sentenced the applicant to a minimum term of three years imprisonment with an additional term of two years, the imprisonment to commence on 5 May 2000, with the minimum term to expire on 4 May 2003; the additional term to expire on 4 May 2005.

3 The applicant seeks leave to appeal on the ground that the sentence imposed was "too severe in all the circumstances".

4 The offences for which the applicant was sentences extended over a period of four to five years whilst he was employed by Australian Ultra Polymers Pty…

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.

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Details

Case: [2001] NSWCCA 143
Decision Date: 4 April 2001

CaseChat Overview and Summary

The case of Regina v Fisher involved the defendant who was convicted of creating and using false instruments for the purpose of defrauding. The matter was heard in the Court of Criminal Appeal, where the defendant appealed against the sentence imposed on him. The central issue before the court was whether the primary judge had correctly exercised his discretion in sentencing the defendant, particularly in the context of the defendant’s position of trust that was abused, his confession before being approached by the police, and his early guilty plea. The court also had to consider the mitigating factor of the defendant’s gambling addiction.

The court examined the sentencing principles applicable to the defendant’s crimes, considering the aggravating factor of the breach of trust and the mitigating factor of the defendant’s early guilty plea and confession. The court noted that while the defendant’s actions were serious, his early guilty plea and voluntary confession were significant mitigating factors. The court further recognised the defendant’s gambling addiction as a contributing factor to his offending behaviour, which may have influenced his decision-making. The court emphasised that the primary judge had to balance these factors in determining an appropriate sentence.

In determining the appeal, the Court of Criminal Appeal found that the primary judge had erred in not sufficiently considering the mitigating factors, particularly the defendant’s early guilty plea and confession, as well as the impact of his gambling addiction. The court concluded that the sentence imposed was too severe, given the mitigating circumstances, and that a re-sentencing hearing was necessary. The constraints imposed by the Court of Criminal Appeal on the re-sentencing process were noted, ensuring that the new sentence would be proportionate and balanced the interests of justice with the need for deterrence.

The court ordered that the matter be remitted to the original sentencing court for re-sentencing, directing that the new sentence should appropriately reflect the mitigating factors and the principles of sentencing. The court stressed the importance of considering the defendant’s early guilty plea, confession, and the impact of his gambling addiction in the re-sentencing process. The court’s decision highlighted the need for a balanced approach in sentencing, taking into account both the gravity of the offence and the circumstances that may have contributed to the defendant’s offending behaviour.

Orders