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7
Court of Criminal Appeal 20 June 2008

John Ian FISHER v R

[2008] NSWCCA 129

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCES PLEAS OF GUILTY AGGRAVATED SEXUAL ASSAULT AGGRAVATED INDECENT ASSAULT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: John Ian Fisher v R [2008] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 20 June 2008
Judge(s): McClellan CJ at CL, Simpson J, Hidden J

Background

The appellant pleaded guilty in the District Court at East Maitland to five sexual offences against 13-year-old twin girls. The victims were the daughters of a woman with whom the appellant had been in a relationship, and offences were committed while he was caring for the children at his home. Two counts concerned aggravated sexual assault of one twin, and three counts concerned aggravated indecent assault of the other.

The indictment charges were described as representative counts. The agreed statement of facts stated that the offences against each victim occurred, respectively, "regularly" and "sporadically" between 2004 and 2006, not merely on the isolated occasions charged.

The sentencing judge imposed an effective total sentence of 11 years imprisonment with a non-parole period of 7 years, finding special circumstances to justify departing from the standard non-parole period proportions. The appellant sought leave to appeal, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing judge impermissibly treated uncharged criminal conduct (the broader course of abuse beyond the representative counts) as an aggravating feature, contrary to the principle in The Queen v De Simoni
  • Whether the sentencing judge erred in characterising the victim's age as being "at the youngest end of the scale" within the relevant offence category
  • Whether the overall sentence was manifestly excessive

Decision

On the central ground, the appellant argued that the sentencing judge's reference to the offences forming part of "ongoing systemic sexual abuse" amounted to sentencing him for uncharged conduct. Simpson J rejected this submission. Her Honour reasoned that a sentencing court does not err simply by acknowledging the representative nature of counts as context; what is impermissible is treating that broader conduct as an aggravating feature that elevates the sentence beyond what the charged offence itself warrants.

Significantly, Simpson J observed that the sentencing judge had assessed the primary offence at the "mid range of objective seriousness," which was an appropriate finding for the specific charged conduct in isolation. Had the broader course of conduct been used as a true aggravating factor, a finding above mid-range would almost certainly have followed. The consistency between the representative nature acknowledgment and the mid-range assessment indicated no impermissible double-counting had occurred.

On the age ground, Simpson J accepted that the sentencing judge's description of the 13-year-old victim as being "at the youngest end of the scale" was technically inaccurate. Given that the relevant offence under s 61J(2)(d) applied to victims aged 10 to 16, a 13-year-old sits closer to the middle of that range. However, the court treated this inaccuracy as immaterial, noting the sentencing judge had independently found the victim to be "vulnerable in the extreme," which amply supported the sentencing approach taken.

The manifestly excessive ground was not separately argued and did not succeed. The court was not satisfied, as required under s 6 of the Criminal Appeal Act 1912, that any other total sentence was warranted in law and ought to have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court does not automatically breach the De Simoni principle by acknowledging that counts on an indictment are representative and that broader offending occurred; the prohibition is on using that uncharged conduct as an aggravating factor that increases the penalty beyond what the charged offence justifies.
  • The Court of Criminal Appeal treated the sentencing judge's mid-range objective seriousness finding as strong internal evidence that uncharged conduct had not been improperly elevated into an aggravating feature.
  • A factual inaccuracy in characterising a victim's age within the statutory range will not necessarily constitute appealable error where the sentencing reasoning as a whole adequately supports the sentence imposed.
  • In dismissing the manifestly excessive ground, the court applied the s 6 Criminal Appeal Act 1912 threshold, confirming that an appeal on this basis requires demonstration that a different total sentence was warranted in law and ought to have been passed.
  • Sentencing remarks are not to be subjected to "minute scrutiny in search of any indication of error"; appellate courts assess whether error is established on a fair reading of the remarks as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61J(2)(d), 61M(1), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- R v JCW [2000] NSWCCA 209