AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 27 February 2009

R v Fischer

[2009] NSWDC 31

Sexual offences
CRIMINAL LAW SENTENCE HISTORICAL OFFENCES SEXUAL OFFENCES SEXUAL INTERCOURSE INDECENT ASSAULT

Citation: R v Fischer [2009] NSWDC 31
Court: District Court of New South Wales
Date: 27 February 2009
Judge(s): Knox SC DCJ

Background

The offender, born in 1936, was tried in the District Court at Sydney in late 2008 for historical sexual offences committed in 1983 and 1984 against a child then aged 11 to 13 years. The offender had been a family friend of the victim's mother and was well known to the victim, who had recently lost her father. The offences occurred at a rural property in Penrose in the Southern Highlands during family visits.

A jury found the offender guilty on five counts: two counts of indecent assault and three counts of sexual intercourse without consent. The offences involved sustained abuse of a vulnerable child over a period spanning more than a year.

At the time of sentencing, the offender was 72 years of age and in poor health, having undergone major surgery for two aneurysms and suffering from chronic renal disease, high blood pressure, colitis, and clinically diagnosed depression. He maintained a complete denial of the offences throughout the proceedings.

  • What penalties applied to the historical offences, given that the conduct occurred in 1983 and 1984 under an earlier version of the Crimes Act 1900?
  • How should the court structure individual sentences across multiple counts, including questions of concurrency and accumulation?
  • What weight should be given to the offender's advanced age and significant medical conditions in determining the appropriate sentence?
  • How should the court treat the offender's lack of remorse and continued denial in the sentencing exercise?
  • What conditions were appropriate upon release to parole?

Decision

The court applied the law and penalties in force at the time of the offences, as agreed by both parties. The maximum penalties then applicable were 6 years imprisonment for indecent assault on a person under 16 (under section 61E of the Crimes Act 1900) and 10 years for sexual intercourse without consent (under section 61D). There were no standard non-parole periods and no aggravation provisions for offences committed by a person in authority at that time.

The court structured sentences so that the two indecent assault counts (Counts 1 and 6) ran concurrently with the initial sexual assault counts, each attracting 6 months. The two 1983 sexual assault counts (Counts 2 and 4) each attracted 3 years, running concurrently with each other. The 1984 sexual assault count (Count 7) attracted a further 3 years, with a partial accumulation of 12 months on top of the earlier counts, producing a total effective sentence of 5 years.

On the question of the offender's age and health, the court acknowledged his serious medical history but did not treat these factors as warranting a substantial reduction in sentence. His continued and complete denial of the offences, and the absence of any remorse, were treated as neutral rather than aggravating factors, consistent with his right to maintain that position. However, no discount for remorse or rehabilitation was available.

The court recommended that the offender be placed in protective custody for at least three months, that his mental health treatment continue to be monitored during the parole period, and that he be considered for referral to Forensic Psychological Services for assessment and case management.

Orders Made

  • Count 1 (indecent assault): 6 months imprisonment, commencing 27 February 2009
  • Count 2 (sexual assault): 3 years imprisonment, concurrent with Count 1, with a 2-year non-parole period commencing 27 February 2009
  • Count 4 (sexual assault): 3 years imprisonment, concurrent with Counts 1 and 2, with a 2-year non-parole period commencing 27 February 2009
  • Count 6 (indecent assault): 6 months imprisonment, concurrent with Counts 1, 2, and 4
  • Count 7 (sexual assault): 3 years imprisonment with partial accumulation of 12 months on Counts 2 and 4, commencing 27 February 2011, with a 1-year non-parole period commencing 27 February 2011
  • Total effective sentence: 5 years imprisonment from 27 February 2009, with a 3-year non-parole period; eligible for parole 26 February 2012
  • Parole conditions recommended: good behaviour, notification of address to Probation and Parole Service, compliance with all Probation and Parole directions including mental health monitoring
  • Recommendation for placement in protective custody for at least three months
  • Recommendation for referral to Forensic Psychological Services for assessment

Key Takeaways

  • Where historical offences are prosecuted, the District Court applied the penalties in force at the time of the conduct, not the higher maximum penalties that apply under current law. This included the absence of standard non-parole periods and in-authority aggravation provisions.
  • Partial accumulation of sentences across multiple counts can produce a total effective term that exceeds the maximum for any single offence, while remaining proportionate to the overall criminality across the course of offending.
  • An offender's advanced age and serious medical conditions are relevant to sentencing but do not automatically produce a reduced sentence, particularly where the offending is serious and involves the sustained abuse of a vulnerable child.
  • Maintained denial and absence of remorse are treated as neutral factors in sentencing; an offender who contests charges is entitled to do so, but no mitigatory discount for contrition or rehabilitation applies where none is demonstrated.
  • The District Court used specific parole conditions and custodial recommendations, including mental health monitoring and protective custody, to address ongoing risks and welfare concerns particular to an elderly offender with complex health needs.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- AJB v R [2007] NSWCCA 51
- R v AJP (2004) 150 A Crim R 575
- Bradbury v R [2008] NSWCCA 93
- Cahyadi v R [2007] NSWCCA 1
- The Queen v De Simoni (1981) 147 CLR 383
- Dousha v R [2008] NSWCCA 263
- Featherstone v R [2008] NSWCCA 71
- FV v R [2006] NSWCCA 237
- R v George [2004] NSWCCA 247
- R v Gould [1999] NSWCCA 177
- Ibbs v R (1987) 163 CLR 447
- R v KNL [2005] NSWCCA 260
- R v LTP [2004] NSWCCA 109
- R v MJR [2002] NSWCCA 129
- MLP v R [2006] NSWCCA 271
- R v Moon (2000) 117 A Crim R 497
- Nelson v R [2007] NSWCCA 221
- R v Rapley [1999] NSWCCA 302
- R v Risby [2008] NSWDC 300
- Shannon v R [2006] NSWCCA 39
- R v Sullivan (unreported, NSWCCA, 20 October 1989)
- R v Totten [2003] NSWCCA 207
- R v Trevanna [2004] NSWCCA 43
- R v Virgona [2004] NSWCCA 415
- R v White [1999] NSWCCA 366