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7
Court of Criminal Appeal 25 October 2024

R v Fisher

[2024] NSWCCA 191

Sexual offences

Citation: R v Fisher [2024] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 25 October 2024
Judges: Price AJA; Garling J; Rigg J (lead judgment)

Background

Following a jury trial in the District Court, the respondent was convicted of two counts of maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900 (NSW), as well as one count of possessing child abuse material under s 91H(2). The two victims were girls aged between 7 and 12 at the time of the offending, and the conduct spanned several years. The unlawful sexual acts particularised in the indictment included touching of breasts and genitals, digital penetration, penile contact with genitals, and cunnilingus.

On 26 April 2024, the sentencing judge imposed an aggregate term of 10 years' imprisonment with a non-parole period of 7 years and 6 months. Indicative sentences were 6 years for count 1, 1 year for count 4 (possession of child abuse material), and 7 years for count 5.

The Crown appealed on two grounds: that the sentencing judge applied a wrong principle in assessing the objective seriousness of the two s 66EA offences, and that the resulting aggregate sentence was manifestly inadequate.

  • Whether the sentencing judge applied the correct legal principle when assessing the objective seriousness of the s 66EA offences, specifically in relation to unlawful sexual acts that were particularised in the indictment but did not form the subject of alternative counts
  • Whether the aggregate sentence of 10 years was manifestly inadequate having regard to the nature and circumstances of the offending

Decision

The Court of Criminal Appeal upheld both grounds of appeal. Rigg J, delivering the lead judgment (with Price AJA and Garling J agreeing), found that the sentencing judge did not apply the correct approach to assessing objective seriousness for the s 66EA counts. The parties agreed on what the correct approach required, and the Court accepted that agreement. The question was whether the sentencing judge had in fact applied it, which required examining not only the remarks on sentence but also the context surrounding them.

The Court found that the sentencing judge had erred in his treatment of unlawful sexual acts particularised in the indictment that did not form separate alternative counts. This error infected the assessment of objective seriousness for both s 66EA offences. The Court noted that the sentencing judge did not have the benefit of subsequently decided Court of Criminal Appeal decisions, particularly MK v R [2024] NSWCCA 127 and RA v R [2024] NSWCCA 149, which provided guidance on the correct sentencing approach under s 66EA.

The Court declined to exercise its residual discretion to refrain from intervening. It resentenced the respondent, increasing the aggregate term substantially to reflect the true objective gravity of the conduct.

Orders Made

  • Appeal allowed
  • Sentence imposed in the District Court on 26 April 2024 quashed
  • Respondent resentenced to 15 years' imprisonment with a non-parole period of 11 years and 3 months, commencing 20 April 2021
  • First eligible for release to parole: 19 July 2032

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court dealing with a s 66EA persistent sexual abuse offence must apply the correct principle when assessing the objective seriousness of unlawful sexual acts particularised in the indictment, even where those acts did not form separate alternative counts at trial.
  • An error in the assessment of objective seriousness for a foundational element of the sentencing exercise can constitute a wrong principle of law sufficient to ground a Crown appeal.
  • Recent decisions, including MK v R [2024] NSWCCA 127 and RA v R [2024] NSWCCA 149, provide authoritative guidance on the sentencing methodology for s 66EA offences; the sentencing judge in this case did not have the benefit of those decisions.
  • Where a Crown appeal is upheld on both a wrong-principle ground and manifest inadequacy, the residual discretion to decline intervention will not necessarily be exercised simply because the sentencing judge lacked access to later appellate guidance.
  • Resentencing on appeal resulted in the aggregate term increasing from 10 years to 15 years, with the non-parole period rising from 7 years and 6 months to 11 years and 3 months.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C, 66EA, 80AF, 91H
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Child Protection (Offenders Regulation) Act 2000 (NSW)

Cases:
- MK v R [2024] NSWCCA 127
- MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180
- RA v R [2024] NSWCCA 149 (cited in judgment text)
- DB v R [2024] NSWCCA 18
- DC v R [2023] NSWCCA 82
- Massequoi v R [2024] NSWCCA 125
- Nolan v R [2024] NSWCCA 140
- GP (a pseudonym) v R [2021] NSWCCA 180
- JG v R [2023] NSWCCA 33
- Burr v R [2020] NSWCCA 282; 285 A Crim R 504
- R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- ARS v R [2011] NSWCCA 266