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Court of Criminal Appeal 25 March 2026

Fisher v R

[2026] NSWCCA 27

Assault & violenceHomicide

Citation: Fisher v R [2026] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 25 March 2026
Judge(s): Kirk JA (primary judgment at [1]); Fagan J (agreeing in part at [178]); Yehia J (agreeing at [184])

Background

The applicant stabbed and killed the deceased in Tamworth, NSW, in June 2023. He pleaded guilty to manslaughter on the basis of excessive self-defence — that is, he accepted he had used force in defending himself, but that the force was not a reasonable response in the circumstances as he perceived them. The evidence established that the deceased was the aggressor: he was intoxicated and agitated, instigated the confrontation, and the applicant had sought to escape rather than fight. The applicant stabbed the deceased once.

In August 2024, the sentencing judge in the District Court imposed a sentence of 9 years' imprisonment (commencing 18 September 2023) with a non-parole period of 5 years. A critical factual finding underpinning the sentence was that the applicant had intended to kill the deceased. The applicant sought leave to appeal against that sentence on three grounds: that the finding of intent to kill was not reasonably open (or, alternatively, not correct); that the sentencing judge's reasons were inadequate; and that the sentencing judge improperly took into account the applicant's "anterior conduct" — that is, conduct before the immediate confrontation — when assessing how far his response departed from what was reasonable.

The appeal raised a significant question about the standard of review that the Court of Criminal Appeal should apply when scrutinising findings of fact made by sentencing judges. This issue had recently been argued before a five-judge bench in Hancock v R [2025] NSWCCA 213, and the present decision was heard after argument in Hancock but before that decision was delivered.

  • What is the appropriate standard of review for findings of fact in sentence appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW)? Specifically, should the appellate court ask whether the finding was "correct" or whether it was "reasonably open"?

  • Was the sentencing judge's finding that the applicant intended to kill the deceased reasonably open on the evidence?

  • Did the sentencing judge provide adequate reasons for the finding of intent to kill?

  • Did the sentencing judge err by having regard to extraneous matters (specifically, the applicant's anterior conduct) when assessing the degree to which his response departed from what was reasonable?

  • If error is established, what is the appropriate sentence on resentencing?

Decision

Standard of review for factual findings in sentencing appeals

Kirk JA (Yehia J agreeing; Fagan J not deciding this point) undertook a detailed analysis of the standard of review applicable to factual findings in sentencing appeals. His Honour identified that sentencing involves the exercise of a discretion, and that the well-known House v The King (1936) 55 CLR 499 framework governs appellate review of discretionary decisions. One ground on which a discretionary decision may be challenged under House v The King is that the primary judge "mistook the facts." Kirk JA acknowledged that in many contexts this may involve a "correctness" standard, but held that the intensity of review can vary depending on the nature of the issue in question.

For findings of fact in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act, Kirk JA concluded that the appropriate question is whether the challenged finding of fact was "reasonably open." This does not mean the test is applied mechanically in every case — its practical operation will vary depending on how evaluative the finding is and the degree to which the sentencing judge held some advantage (for example, having observed witnesses) over the appellate court. Importantly, the Court drew a distinction between findings of "primary" or "historical" fact and findings involving legal characterisation (such as a conclusion about objective seriousness), emphasising that the latter are not pure findings of fact and engage different considerations.

Kirk JA further confirmed that even if a factual error is identified, it will only warrant appellate intervention if it is material — that is, there is a realistic possibility the sentencing decision could have been different had the error not occurred. The Court also noted these conclusions do not disturb other established sentencing principles, including those concerning how sentencing judges may find facts and the allowance made for ex tempore remarks.

Intent to kill: not reasonably open (Ground 1)

The Court unanimously held that the sentencing judge's finding of intent to kill was not reasonably open on the evidence. The sentencing judge had relied on three factors: the deceased was unarmed; the applicant stabbed the deceased; and the stab wound was directed to the left side of the deceased's body. Kirk JA analysed each factor in turn. The deceased being unarmed had limited relevance to the applicant's intention given the circumstances. The fact of the stabbing was significant but not determinative, particularly where the applicant was defending himself. And as to the location of the wound, there was no basis to infer the applicant specifically targeted the heart; it was at least a significant possibility that a right-handed person defending himself would naturally strike the left side of an attacker facing him.

Critically, the sentencing judge had not addressed evidence that the deceased was the aggressor — intoxicated, agitated, and the instigator of the confrontation — or that the applicant had tried to escape and had stabbed the deceased only once without any evidence of intent to cause harm beyond that single defensive act. The Court concluded these three factors did not establish a reasonable basis to infer, beyond reasonable doubt, that the applicant intended to kill.

Inadequate reasons (Ground 1A)

Kirk JA (Yehia J agreeing; Fagan J not deciding) also held that the sentencing judge had failed to provide adequate reasons for this finding. Her Honour's reasons essentially stated that she accepted the Crown's submission rather than the applicant's, identified two factors as being "of particular significance," but did not engage with the four specific arguments raised by the defence. Even making due allowance for the ex tempore character of the remarks, this did not adequately explain the basis for preferring one party's case over the other on a material disputed issue. The sentencing exercise miscarried on this additional basis.

Anterior conduct and objective seriousness (Ground 2)

The Court found it unnecessary to determine Ground 2 in light of its conclusions on Grounds 1 and 1A, but Kirk JA (Yehia J agreeing) provided guidance on the issue. When assessing excessive self-defence under s 421 of the Crimes Act 1900 (NSW), the "circumstances as he or she perceives them" do not encompass the offender's anterior conduct for the purpose of determining criminal liability. Kirk JA observed, however, that this does not necessarily mean anterior conduct is irrelevant in every case to the distinct question of objective seriousness for sentencing purposes — though it would be rare for it to be relevant in cases of manslaughter by excessive self-defence. The matters raised under this ground were nonetheless relevant to the resentencing exercise.

Resentencing

The Court unanimously resentenced the applicant, making several findings differing from those of the sentencing judge: the offence was to be regarded as unplanned (though this added little to the analysis); a finding that the applicant had manifested a "continuing attitude of disobedience of the law" paid insufficient attention to the excessive self-defence context (though the applicant's record of carrying or using weapons remained relevant); and general deterrence, while a relevant consideration, was not to be given the heightened weight the sentencing judge had implicitly accorded it. The evidence did not establish beyond reasonable doubt that the stabbing departed significantly from a reasonable response — it was sufficient to say simply that it departed from a reasonable response.

Orders Made

  • Leave to appeal against sentence was granted.
  • Grounds 1 and 1A were upheld.
  • The sentence imposed by the District Court was quashed.
  • The applicant was resentenced to a term of imprisonment of 5 years 3 months, commencing 18 September 2023, with a non-parole period of 3 years expiring 17 September 2026.

Key Takeaways

  • Standard of review for factual findings: The Court of Criminal Appeal confirmed that factual findings made by a sentencing judge, when challenged on appeal under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW), are assessed against whether the finding was reasonably open rather than whether it was "correct."
  • In applying this standard, the practical intensity of review varies depending on the evaluative character of the finding and the degree of advantage enjoyed by the sentencing judge in making it.
  • Where the contested finding (here, an intention to kill) was derived primarily from objective, undisputed evidence rather than from assessments of witness credibility or demeanour, the appellate court's capacity to evaluate the finding independently was greater.