Regina v Fisher - [2000] NSWCCA 218

CITATION: REGINA v FISHER [2000] NSWCCA 218

FILE NUMBER(S): CCA 60339/99

HEARING DATE(S): 31 May 2000

JUDGMENT DATE:
31 May 2000

PARTIES :

Regina
v
Steven Andrew Fisher

JUDGMENT OF: Sully J at 1; Adams J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0018

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : Mr M C Marien (Crown)
Mr A P Cook (Applicant)

SOLICITORS: S E O'Connor (Crown)
T A Murphy (Applicant)

CATCHWORDS: Sentence appeal - malicious wounding with aggravation - effective sentence four years and six months with a minumum term of two years - appeal dismissed

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
Regina v Simpson (1992) 61 A Crim R 58
Regina v Close (1993) 31 NSWLR 743

DECISION: 1. Leave to appeal against sentence is granted.; 2. The substantive appeal is dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60339/99

SULLY J
ADAMS J

WEDNESDAY 31 MAY 2000

REGINA v STEVEN ANDREW FISHER

JUDGMENT
1 SULLY J: I will ask Adams J to deliver the first judgment. 2 ADAMS J: The appellant pleaded guilty to malicious wounding of a Mr Glen Fitzpatrick on 6 September 1998 together with other charges as follows: using an offensive weapon with intent to prevent his lawful apprehension and the lawful apprehension of another person who was with him; and breaking and entering the dwelling house of one Sandra Botterill, in Bronte and stealing some property including a knife. 3 The circumstances may be shortly stated. On Sunday 6 September 1998 at about 8.30pm the appellant and a female entered the premises by breaking in. They removed property. About fifteen minutes later Mrs Botterill and her son arrived home and the appellant and his accomplice were disturbed and ran off. They were pursued, jumping over a number of fences, and discarding some of the stolen articles as they went. 4 The attention of Mr Fitzpatrick and his wife was attracted by the disturbance and he chased the appellant and his accomplice to Chesterfield Parade. Mr Fitzpatrick caught up with the female offender and asked her to surrender. 5 The appellant shoulder charged Mr Fitzpatrick, making it clear that he intended to enable her to escape. The appellant then stabbed Mr Fitzpatrick once with the knife previously stolen. A fight ensued and the appellant was punched in the face and then stabbed Mr Fitzpatrick for the second time on the left rear side of rib cage. 6 The fight continued and he stabbed yet again in the area of Mr Fitzpatrick's spleen. This was a serious injury. It was necessary for Mr Fitzpatrick to be in hospital for some ten days and suffer surgery before he was able to be released. 7 The victim impact statement was tendered which showed that the victim had suffered from traumatic reminders daily since the incident, was seeking counselling and could see no end to this suffering. It is clear in the circumstances that the injuries may easily have been even more…

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: [2000] NSWCCA 218
Decision Date: 31 May 2000

CaseChat Overview and Summary

Regina v Fisher was a criminal appeal heard by the Supreme Court of Victoria. The appellant, Fisher, was convicted of malicious wounding with aggravation and was sentenced to four years and six months imprisonment, with a minimum term of two years before being eligible for parole. Fisher appealed the sentence on the grounds that it was excessive and disproportionate to the nature of the crime.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inappropriate. The court considered the principles of sentencing for serious criminal offences, the degree of culpability, and the need to balance the interests of the community with the rights of the offender. The court also considered whether the sentence adequately reflected the harm caused to the victim and the degree of culpability of the offender.

The court found that the sentence was not manifestly excessive or inappropriate. The court considered the nature and circumstances of the offence, including the degree of premeditation, the use of a weapon, and the harm caused to the victim. The court also took into account the appellant's criminal history and the need to deter similar offences in the future. The court concluded that the sentence reflected the seriousness of the offence and was proportionate to the harm caused to the victim. The appeal was dismissed, and the sentence was upheld.

The court did not make any additional orders in relation to the appeal. The appellant remains subject to the original sentence, with the minimum term of two years before being eligible for parole.

Orders