R v Fisher [2001] VSCA 164

8. The offences are old, in the sense that the first of them occurred over 13 years ago and the last some eight years ago. The offences came to the notice of police not through any complaint made by the girl but through adventitious circumstances. The judge sentenced the appellant, who was of otherwise good character, to sentences of 12 months on count 1 and six months on counts 2 to 6 inclusive. She accumulated six months of the sentences imposed on counts 2 and 3 and three months of the sentences imposed on counts 4, 5 and 6 upon each other and upon the sentence of twelve months imposed on count 1. The total effective sentence was therefore one of two years and nine months and the judge fixed a non-parole period of 12 months.

11. The appeal which comes before this Court is supported by nine grounds, the last eight of which are really particulars of ground 1, namely, that the sentences imposed are manifestly excessive. However, Mr Just, on behalf of the respondent, has pointed out to us that in respect of count 1 (the gross indecency charge) the judge appears to have sentenced the appellant on a view of the facts inconsistent with the charge alleged in count 1. In essence it is said that the judge treated the offence as a sexual penetration rather than a gross indecency in the presence of the victim, which was the offence with which the appellant had been charged. It is further said that her Honour also sentenced on this count on the basis that the maximum penalty was two years, when in fact it was three years. However, if that is error, it is one made in favour of the appellant.

14. In any event, it would seem that the former error to which I have referred reopens for this Court the sentencing discretion.

17. The primary contention which is made by Mr Lyon on behalf of the appellant in this case is that the sentence, in the circumstances which were before her Honour and which are before this Court, should have been totally suspended rather than being ordered to be served immediately. This submission is based on the age and infirmity of the appellant and the hardship which immediate incarceration imposes upon his wife.

20. The evidence which was before her Honour indicated that the appellant is now aged 72 and is in a state of extremely poor health and also of considerably impaired mental functioning. It was not in dispute that he is very unwell, his conditions including epilepsy, degenerative arthritis involving many joints, bladder obstructions which have led to chronic urine retention and consequent urinary tract infections, duodenal ulcers, diverticulitis, Dupuytren's disease, blindness in the right eye due to cataract, chronic bronchitis and atrial fibrillation. For these and other problems he has been under constant medical care for many years and his capacity to move is grossly restricted. Nor is it disputed, as the material before her Honour shows, that the appellant's wife has terminal cancer, which has required frequent bouts of chemotherapy. Her prognosis is accordingly poor. She is very depressed and is dependent to a significant degree upon the comfort and society of the appellant. Indeed, it would seem to be the opinion of those treating the two of them that these two elderly people are interdependent. The doctor who has been treating her for many years has expressed the view that the appellant's forced separation from his wife will reduce her will to live. Although she sees her daughter, the victim of these acts, from time to time, that daughter now has a life of her own which precludes all but occasional visits. Hence the wife, who has resort to a wheelchair, frets for the society and assistance of the appellant.

23. It is not suggested that her Honour, in the course of careful sentencing remarks, failed to take into account the matters to which I have referred. The submission made by Mr Lyon is that those matters are sufficiently exceptional to warrant this Court taking the course of wholly suspending the service of the sentence, or at least so much of it that remains to be served. It is also said that a failure to do so in the circumstances of this case would render the sentence manifestly excessive.

26. I agree with the respondent's submission made to us that her Honour was, and this Court is, entitled to regard the appellant's offending as revolting and warranting the attraction of principles of general deterrence, particularly having regard to the breach of trust which it involved.

29. 10 In the long run, however, I am of the view that the circumstances of the appellant and his wife were, and are, so exceptional that the purposes of punishment can and should be achieved by imposing the sentences which her Honour did, but by wholly or substantially suspending them. Without wishing to down-play in any way the totally unacceptable behaviour of the appellant, I am unable to accept that the nature of the offending so outweighs the very exceptional circumstances afflicting the appellant and his wife that just punishment necessarily has to involve immediate incarceration beyond that which has been served. It is, of course, true that in almost every case where a husband and father is sent to gaol some hardship will necessarily accrue to the wife and children whom that prisoner leaves behind. That is why, in the normal run of cases, sentencing courts, whilst not being impervious to the fact, cannot and do not usually permit it to weigh significantly in the sentencing process. I refer to R. v. Panuccio[1] and the cases therein referred to. However, as these authorities recognise, there will be cases of an extreme or exceptional kind where the hardship of imprisonment to the offender, or even more particularly to his family, will attract the compassion or mercy of the court which, in appropriate cases, is available to be deployed in the sentencing process. I refer to R. v. Boyle[2]; R. v. Walsh[3]. This is not a case where, in my view, it can be said that the gravity of the offending necessarily renders the circumstances to which I have referred otherwise than exceptional or extreme within the meaning of these authorities. This is, I think, one of those rare cases where, without seeking to minimise the nature of the offending, a measure of compassion is required in the sentencing process.

32. The appellant has already served some three months of the sentence which was imposed upon him. For the reasons which I have given, I am of the view that that is enough, and that the balance of the term of imprisonment imposed should be suspended for a period of two-and-a-half years. In my opinion, suspension rather than parole is a far more effective manner of dealing with the appellant having regard to his age and infirmity. Supervision whilst on parole is unnecessary because no one suggests that the appellant needs lengthy supervision or control. The threat of further punishment for the commission of these offences is, in my view, a far better way of ensuring his compliance with the law.

35. I would, therefore, allow the appeal and re-sentence accordingly.

39. I agree that there are truly exceptional circumstances in which in this case a suspended sentence should be imposed in the manner proposed by the President.

47. The formal order of the Court is that the appeal is allowed. The sentences imposed by her Honour are quashed. In lieu thereof we confirm the individual sentences imposed by her Honour and the orders for cumulation which she made. We also confirm her Honour's declaration of the appellant as a serious sexual offender.

The total effective sentence will therefore be one of two years and nine months.

We order that two years and six months of that sentence be suspended for a period of two-and-a-half years.

We declare pursuant to s.18 of the Sentencing Act 1991 that the appellant has already served 92 days of the sentence which we have pronounced and we direct that that declaration and its details be entered in the records of the Court.

54. Mr Fisher, that will mean, if you are prepared to enter into the suspended sentence we have declared here today, that for the remaining period of this sentence you will be at large. You have done the three months, and what we are doing is suspending the balance of the sentence for a period of two-and-a-half years. That means that if during that period you commit any further offence which is punishable by imprisonment you will be required to go back and serve the balance of this sentence. Do you understand that?

64. Are you willing to accept the suspension which we order?

[1] Unreported. Court of Appeal, 4 May 1998.

[2] (1987) 34 A.Crim.R. 202.

[3] [1996] SASC 5795; (1996) 89 A.Crim.R. 65.