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23
Court of Criminal Appeal 7 May 2021

Fisher v R; R v Fisher

[2021] NSWCCA 91

Sexual offences

Citation: Fisher v R; R v Fisher [2021] NSWCCA 91
Court: Court of Criminal Appeal, NSW
Date: 7 May 2021
Judge(s): Brereton JA; Fullerton J; Adamson J

Background

The offender was charged on indictment with two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both counts arose from the same occasion. Count 1 concerned oral intercourse and count 2 concerned penile/vaginal intercourse with a sleeping woman who was a stranger to him.

Following trial in the District Court, the jury convicted the offender on count 1 but was unable to reach a verdict on count 2. The Director of Public Prosecutions subsequently directed that there be no further proceedings on count 2. The sentencing judge imposed a Community Corrections Order (CCO) for three years.

The offender applied for leave to appeal against his conviction on count 1, arguing the verdict was inconsistent with or unreasonable in light of the jury's failure to agree on count 2. The Crown separately appealed the sentence, contending the sentencing judge had erroneously considered the offender's self-induced intoxication in mitigation and that the sentence was manifestly inadequate.

  • Whether a conviction on count 1 was irreconcilable with the jury's failure to agree on count 2, such that the verdict was inconsistent or unreasonable.
  • Whether the sentencing judge erred by taking self-induced intoxication into account in assessing the offender's culpability and objective seriousness, contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the CCO of three years was manifestly inadequate for an offence of this nature.

Decision

On the conviction appeal, the Court granted leave but dismissed the appeal unanimously. The two counts concerned two distinct acts of intercourse separated in time, and the jury was entitled to assess the offender's state of mind separately for each. While the jury was satisfied that the offender had no reasonable grounds for believing the complainant consented to the oral intercourse, some jurors may have considered it reasonably possible that he formed such grounds by the time of the second act, particularly given the complainant's apparently positive response during the first. The conviction on count 1 was therefore reconcilable with the failure to agree on count 2.

On the Crown sentence appeal, the majority (Adamson J, Fullerton J agreeing) allowed the appeal and imposed a custodial sentence. The sentencing judge had expressly taken self-induced intoxication into account in a way that reduced the offender's apparent moral culpability. The majority held this was an error: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits self-induced intoxication from operating as a mitigating factor, and a sentencing court cannot use it to "explain" conduct in a manner that effectively diminishes the offender's culpability. This error tainted the sentencing judge's findings of fact and assessment of objective seriousness, requiring the Court of Criminal Appeal to re-sentence.

On re-sentencing, the majority assessed the objective seriousness of the offending as just below the mid-range. Factors weighing heavily included the gross violation of the complainant's body, the deliberate nature of the conduct, and the vulnerability of the victim who was asleep and unaware her assailant was a stranger. The majority concluded that a custodial sentence was required to reflect the objective gravity of the offence and to indicate to the community the seriousness of sexual assault on a sleeping woman by a stranger.

Brereton JA dissented on the sentence appeal. His Honour considered that the sentencing judge had not erred: s 21A(5AA) does not prohibit all consideration of self-induced intoxication, which may legitimately be explanatory, negate an aggravating factor, or support a finding of good character or low reoffending risk. His Honour would have found the sentence, while lenient, was not so manifestly inadequate as to be plainly unjust, given the offender's lack of prior criminal history, good character, and low risk of reoffending.

Orders Made

  • Conviction appeal: Leave to appeal granted; appeal dismissed.
  • Crown sentence appeal: Appeal dismissed.

Note: The orders as reproduced in the provided text record the sentence appeal as dismissed. However, the judgment reasons record that the majority allowed the Crown sentence appeal and imposed a custodial sentence. The orders section as extracted may be incomplete or reflect a drafting anomaly in the provided text. Readers should consult the full judgment for the complete orders.

Key Takeaways

  • A conviction on one count is not necessarily inconsistent with a jury's failure to agree on a related count if the two counts concerned discrete acts and the jury could rationally have assessed the accused's state of mind differently in respect of each.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication cannot be used as a mitigating factor, and the majority of the Court confirmed this extends to using intoxication to "explain" conduct in a way that reduces the offender's assessed moral culpability.
  • Where a sentencing error infects the assessment of objective seriousness, the Court of Criminal Appeal is required to conduct a fresh sentencing exercise rather than simply adjusting the original sentence.
  • The degree of deliberation involved in the commission of a sexual offence is a significant factor in assessing objective seriousness, as is the vulnerability of a sleeping victim who is a stranger to the offender.
  • In dismissing the conviction appeal, the Court confirmed the principle from Daaboul v R that a conviction may be irreconcilable with a failure to agree on another count in some circumstances, but found that principle did not apply where a rational explanation for the different outcomes existed on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61I, 428B, 428D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 17C, 21A, 67, 89
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)

Cases:
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- R v Alcazar [2017] NSWCCA 51
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Nguyen v R [2021] NSWCCA 85
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37