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Court of Criminal Appeal 31 May 2000

REGINA v FISHER

[2000] NSWCCA 218

Assault & violenceTheft & property
SENTENCE APPEAL MALICIOUS WOUNDING WITH AGGRAVATION APPEAL DISMISSED

Citation: [2000] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 31 May 2000
Judge(s): Sully J, Adams J

Background

The appellant pleaded guilty in the District Court to malicious wounding with aggravation, using an offensive weapon to prevent lawful apprehension, and breaking and entering a dwelling and stealing property, including a knife. The offences arose from a home burglary at Bronte on 6 September 1998, during which the appellant and an accomplice were disturbed and fled. When a member of the public caught up with the accomplice and asked her to surrender, the appellant intervened, shoulder-charged the victim, and stabbed him three times. One wound was near the spleen and was serious enough to require surgery and ten days in hospital.

The sentencing judge in the District Court imposed an effective sentence of four years and six months, with a minimum term of two years. The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal, arguing that the sentence was manifestly excessive or otherwise affected by error.

  • Whether the sentencing judge erred in finding that special circumstances did not exist to justify a departure from the statutory minimum-to-additional term ratio
  • Whether the cumulative effect of the sentences (including the revoked parole period from earlier offences) required the sentencing judge to apply the principle from Regina v Simpson (1992) to achieve proportionality between the minimum and additional terms
  • Whether the overall sentence was appropriate having regard to the objective seriousness of the offences, the appellant's criminal history, and his personal circumstances

Decision

Adams J, with whom Sully J agreed, concluded that the sentencing judge had not erred in any relevant respect. His Honour accepted that the offences involved a serious level of violence, committed while the appellant was on parole for earlier breaking and entering offences, which was a significant aggravating factor. The drug addiction underlying the original burglary did not provide mitigation for the subsequent violence inflicted on the victim during the appellant's escape.

On the question of special circumstances, the appellant argued that the cumulation of sentences created a disproportionate ratio between minimum and additional terms, engaging the principle in Regina v Simpson. Adams J accepted that the cumulation raised the question, but was not satisfied the sentencing judge had been unaware of it. More importantly, Adams J concluded that Simpson did not require positive adjustment on the facts of this case, and that the sentencing judge was correct to focus on an appropriate minimum term for the offences and an additional term suited to rehabilitation prospects.

The Court also found no error in the sentencing judge's decision to commence the sentence from 22 March 1999, the date the earlier parole additional term expired, rather than crediting that earlier custody against the new sentence. Adams J acknowledged that the appellant had made genuine and substantial efforts at rehabilitation since the offences, but noted that this could not alter the orders to be made.

Sully J added a brief observation, reaffirming views expressed in Regina v Close (1993) about the principles of totality and proportionality, and confirmed that those principles, properly applied, supported the orders proposed by Adams J.

Orders Made

  • Leave to appeal against sentence is granted.
  • The substantive appeal is dismissed.

Key Takeaways

  • No error was established in the sentencing judge's refusal to find special circumstances, where the cumulation of sentences raised the Simpson question but the facts did not require a positive adjustment to the minimum-to-additional term ratio.
  • Under the principle in Regina v Simpson, special circumstances arising from cumulative sentences may warrant adjustment to maintain proportionality between minimum and additional terms, but this does not apply automatically in every case of sentence accumulation.
  • Committing serious offences while on parole remains a significant aggravating factor, and the Court of Criminal Appeal confirmed that the sentencing judge correctly treated it as such.
  • A drug addiction motivating an underlying property offence does not, of itself, provide mitigation for serious violence inflicted on a member of the public during the offender's subsequent escape.
  • In dismissing the appeal, the Court affirmed that post-offence rehabilitation efforts, while acknowledged and credited, cannot necessarily alter the sentencing outcome where the objective gravity of the offending demands a substantial custodial term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

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