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Court of Criminal Appeal 14 May 2002

Regina v Fisher [2002] NSWCCA 188 revised - 16

[2002] NSWCCA 188

Also reported as (2002) 54 NSWLR 467
Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION COMMON ASSAULT APPEAL AGAINST SEVERITY OF SENTENCE PARITY OF SENTENCE WITH CO OFFENDER

Citation: Regina v Fisher [2002] NSWCCA 188; (2002) 54 NSWLR 467
Court: Court of Criminal Appeal, New South Wales
Date: 14 May 2002
Judge(s): Stein JA; Kirby J; Carruthers AJ

Background

The appellant pleaded guilty in the District Court to nine offences, including common assault under s 61 of the Crimes Act 1900, five counts of break, enter and steal, two counts of assault occasioning actual bodily harm, and one count of escape from lawful custody. Additional matters were taken into account on two Form 1s. The sentencing judge imposed a total effective sentence of six years imprisonment with a non-parole period of three years, backdated to 2 August 2000.

The appellant sought leave to appeal out of time against her conviction on the common assault charge and also sought leave to appeal against the severity of her sentences. Leave to appeal out of time was granted on the conviction ground.

  • Whether s 61 of the Crimes Act 1900 (common assault) remained an indictable offence following amendments to s 8 of the Criminal Procedure Act 1986 that took effect on 1 January 2000
  • Whether the District Court had jurisdiction to deal with a charge of common assault under s 61, given that the amended s 8 required certain offences carrying a maximum of two years imprisonment to be dealt with summarily
  • Whether the sentences imposed were manifestly excessive, and whether a parity issue arose in comparison with any co-offender

Decision

On the conviction appeal, the central question was whether the 2000 amendment to s 8(1)(c) of the Criminal Procedure Act had the effect of stripping common assault under s 61 of its status as an indictable offence, and therefore removing District Court jurisdiction. The appellant argued that because common assault carries a maximum of two years imprisonment and is not expressly required to be dealt with on indictment, s 8(1)(c) mandated summary disposal only.

Stein JA rejected that submission. His Honour reasoned that accepting the appellant's construction would render s 20 of the Criminal Procedure Act and Table 2 to Schedule 1 (which lists s 61 as an indictable offence to be dealt with summarily unless the prosecuting authority elects otherwise) largely without practical effect. Courts should strive to give each legislative provision a workable field of operation, and Parliament is not presumed to enact provisions of no practical consequence. The expression "required to be dealt with on indictment" in s 8(1)(c) was properly read as subject to s 20, which preserves the prosecution's right to elect indictment. The retention of the heading "Common assault prosecuted by indictment" in s 61 of the Crimes Act, and the continued presence of s 61 in Table 2, further supported this reading.

On sentence, the Court examined whether the overall structure was manifestly excessive. Stein JA acknowledged that the sentencing approach could be seen as unconventional, and possibly in tension with R v Pearce, but found that any alternative structuring would still require accumulation. The total sentence of six years with a three-year non-parole period, backdated generously to August 2000, could not be said to require correction. Applying the test in R v Simpson, the Court must form a positive opinion that some other sentence is warranted in law before intervening. No such opinion was formed here.

Orders Made

  • Leave to appeal out of time against conviction on the s 61 common assault charge granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Section 61 of the Crimes Act 1900 (common assault) retained its character as an indictable offence notwithstanding the 2000 amendments to s 8 of the Criminal Procedure Act 1986, and the District Court retained jurisdiction where the prosecution elected indictment under s 20.
  • Statutory construction principles disfavour interpretations that render an existing provision of no practical effect; the Court of Criminal Appeal applied this principle to read s 8(1)(c) as subject to the prosecutorial election mechanism in s 20.
  • Where a heading within an Act forms part of the Act under s 35 of the Interpretation Act 1987, its continued presence after amendment is a meaningful indicator of parliamentary intent.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that some other sentence is warranted in law before it will intervene; mere structural irregularity in sentencing does not automatically satisfy that threshold.
  • In dismissing the sentence appeal, the Court affirmed that a generous backdating of the commencement date was a relevant consideration weighing against a finding of manifest excess.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61
- Criminal Procedure Act 1986 (NSW), ss 3, 7(2), 8, 18, 20(2), Table 2 to Schedule 1, Division 3
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Interpretation Act 1987 (NSW), ss 21, 33, 35

Cases:
- R v Cook [2002] NSWCCA 140
- R v Pearce [1998] HCA 57
- R v Simpson [2001] NSWCCA 534