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District Court 17 March 2017

R v Fisher

[2017] NSWDC 56

Sexual offencesAssault & violenceDomestic & family violence
SEXUAL VIOLENCE DOMESTIC CONTEXT VICTIM IMPACT IMPACT OF DELAYED PLEA ON VICTIM QUESTIONABLE REMORSE RISK OF REOFFENDING DIMINISHED

Citation: R v Fisher [2017] NSWDC 56
Court: District Court of New South Wales
Date: 17 March 2017
Judge: Judge A Haesler SC

Background

The offender, Leroy Fisher, was committed for trial following a series of offences against his then-girlfriend, referred to as HJA, in 2015. The relationship had been deteriorating, and HJA had attempted to distance herself from Fisher in the weeks before the most serious offending occurred.

The offending spanned two separate occasions. In June 2015, Fisher pushed HJA to the ground and grabbed her property during an argument. On 20 July 2015, after HJA visited his home to retrieve her belongings, Fisher detained her against her will, handcuffed her, and subjected her to three acts of sexual intercourse without consent, including one involving the infliction of actual bodily harm. Fisher was arrested the following day and made admissions in his police interview. He has been in custody since 21 July 2015.

An indictment containing seven counts was originally presented in April 2016. Fisher initially pleaded not guilty. On 21 November 2016, the day set down for trial, a fresh indictment was presented and Fisher entered guilty pleas to four counts. The court was also asked to take a fifth offence into account on a Form 1 (a procedure that allows additional offences to be considered at sentencing without a separate conviction being recorded).

  • How should the objective seriousness of each offence be assessed given the domestic context, the sustained nature of the violence, and the multiple forms of sexual abuse?
  • What weight should be given to Fisher's guilty plea, given it came on the day of trial despite early admissions to police?
  • How should mitigating factors (youth, prior good character, remorse) be balanced against the gravity of the offending?
  • What role do general deterrence, denunciation, and victim vindication play in sentencing for domestic sexual violence?
  • How should the individual sentences be structured (accumulated, concurrent, or partially concurrent) to reflect totality and special circumstances?

Decision

Judge Haesler assessed the objective seriousness of each offence as falling below but close to the middle of the relevant range, noting that direct comparisons between sexual assault cases are difficult given the wide variety of circumstances the offences can encompass. The detention involved sustained physical violence over a significant period. The sexual offences were characterised as degrading, humiliating, and inflicted with deliberate disregard for the victim's pleas to stop. The June 2015 assault was treated as a separate act requiring separate punishment, consistent with its nature as an overt act of violent domestic control.

On mitigating factors, the court acknowledged Fisher's relative youth, his status as a first offender, and the admissions he made to police. However, the guilty plea attracted only limited discount because it was entered on the day of trial rather than at an early opportunity, notwithstanding those earlier admissions. The court expressed reservations about the genuineness of Fisher's remorse, noting that his conduct following the offending, including continuing to contact HJA after she had asked to be left alone, was inconsistent with sincere contrition. His risk of reoffending was assessed as diminished, and the court recommended he be given the opportunity to undertake the CUBIT sex offender program in custody.

On the question of deterrence, the court acknowledged the High Court's observation in Munda v Western Australia that heavy sentences may have limited utility in deterring unpremeditated crimes. The court nonetheless emphasised that sentencing serves purposes beyond deterrence, including the vindication of the dignity of victims of sexual violence, community denunciation of serious offending, and the protection of vulnerable persons from further harm. These purposes were placed at the forefront of the sentencing exercise.

The court found special circumstances warranting a variation from the standard ratio between non-parole period and balance of sentence, given the need for supervision and rehabilitation upon release after a lengthy custodial term.

Orders Made

  • Count 1 (Assault, June 2015): 3 months imprisonment
  • Count 2 (Detention with intent to intimidate, 20 July 2015): 3 years 5 months imprisonment
  • Count 3 (Aggravated sexual assault with actual bodily harm, plus Form 1 offence): 6 years 9 months imprisonment with a non-parole period of 4 years
  • Count 4 (Sexual assault without consent): 3 years 5 months imprisonment with a non-parole period of 2 years
  • Aggregate non-parole period: 5 years, commencing 21 July 2015 and expiring 20 July 2020
  • Balance of sentence: 3 years 5 months, expiring 20 December 2023
  • Total head sentence: 8 years 5 months

Key Takeaways

  • A late guilty plea entered on the day of trial attracts a reduced discount even where the offender made early admissions to police. The timing and context of the plea affect the weight given to it in mitigation.
  • Sentencing for serious domestic sexual violence is not solely about deterrence. The District Court confirmed that denunciation, victim vindication, and community protection are independent and significant purposes that can justify substantial sentences even where general deterrence has limited empirical support.
  • Expressions of remorse carry little mitigating weight where the offender's post-offence conduct, such as repeated unwanted contact with the victim, is inconsistent with genuine contrition.
  • Under the standard non-parole period provisions in the Crimes Act 1900, courts retain the task of assessing objective seriousness relative to the full range of the offence, and are not confined to simple comparisons with other decided cases. Both s 61J and s 61I offences cover a wide spectrum of conduct.
  • A finding of special circumstances can justify departing from the statutory ratio between non-parole period and total sentence where extended post-release supervision is warranted, particularly for offenders who will require rehabilitation programmes such as CUBIT following a lengthy custodial term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61 (common assault), 61I (sexual intercourse without consent), 61J (aggravated sexual assault), 86(1)(a) (detaining for advantage)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases
- Munda v Western Australia [2013] HCA 38
- Markarian v The Queen (2005) 228 CLR 357
- Bugmy v The Queen (1990) 169 CLR 525
- Hili v The Queen (2010) 242 CLR 520
- Nguyen v The Queen (2016) 256 CLR 656
- The Queen v Pham [2015] HCA 39
- Barbaro v The Queen (2014) 253 CLR 58
- Johnson v The Queen (2004) ALR 346
- Power v The Queen (1974) 131 CLR 623
- Mill v The Queen (1988) 166 CLR 59
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Dunn (2004) 144 A Crim R 180
- MAK (2006) 167 A Crim R 159
- Mooney v R [2016] NSWCCA 231
- Afiouny [2017] NSWCCA 23
- R v Borkowski [2009] NSWCCA 102
- Thawer [2009] NSWCCA 158
- Qutami [2001] NSWCCA 353
- M A [2004] NSWCCA 92
- Clinch (1994) 72 A Crim R 301