R v Fisher

District Court of NSW|2017-03-09

Introduction

On 16 March 2016 Leroy Fisher was committed for trial to this court. On 19 April 2016 an indictment was presented containing 7 counts. Fisher indicated he was not guilty. The matter was listed for a trial on 21 November 2016. On 18 November at the pre-trial call-over the court was told the matter might be short. On 21 November 2016 a fresh indictment was presented with the court's leave. Mr Fisher then accepted his guilt in respect of 4 charges.
Each offence occurred at Berkeley. In each his victim was his then girlfriend HJA. Count 1 alleged an assault on HJA in June 2015: s 61 Crimes Act 1900; maximum penalty 2 years. Counts 2, 3 and 4 occurred on the 20 July 2015. Count 2 alleged Fisher detained HJA with intent to commit the offence of intimidation: s 86 (1)(a) Crimes Act 1900; maximum penalty 14 years. Count 3 alleged Fisher had sexual intercourse with HJA without her consent, knowing she was not consenting and at the time he recklessly inflicted actual bodily harm on her: s 61J(1) Crimes Act 1900; maximum penalty 20 years, with a standard non-parole period of 10 years. Count 4 alleged Fisher had sexual intercourse with HJA without her consent, knowing she was not consenting: s 61I Crimes Act 1900; maximum penalty 14 years with a standard non-parole period of 7 years.
I am also asked to take into account a further offence of sexual intercourse without consent when I impose the sentence for count 3. I will do so.

A Victim Impact Statement

In her Victim Impact Statement, which I received and will consider, HJA described how the events had changed her life considerably. She spoke of her shock at what was being done to her and how it was "overwhelming." She still feels numb and has flashbacks. For some time after she hated herself and her body. She "saw the world differently and lost interest in almost everything." She thanked those who had supported her throughout. She also showed her resilience. She has learnt from this experience - she can be strong and move on. She has changed. She no longer takes life for granted.
The impact offences such as these have on their victims and the community in general is one reason for the high maximum penalties and standard non-parole period proscribed. It is hoped that heavy penalties will deter others from doing what Fisher did.

Objective Seriousness of the Particular Offending

A critical component of the sentencing process requires that the objective seriousness of the particular offending be determined in light of the entirety of the facts and circumstances.
Fisher abused HJA, her property and their prior relationship. The initial assault was an overt act of dominance and violent control, characteristic of crimes involving domestic violence. As Justice Adams noted in Dunn (2004) 144 A Crim R 180, at [47], with such offences, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim. As a consequence their victim never feels truly safe. His Honour then said, "To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind."
That statement applies with equal force to the remaining matters.
On 20 July 2015 HJA was a guest in Fisher's home. His anger toward her was made manifest by his dragging her inside the home. He assaulted her. He displayed his contempt for her in a variety of ways. She thought she was going to die. This episode of detention and violence lasted some time.
Fisher then compounded HJA's humiliation by again pushing her face down on the bed so she could not breathe and penetrating her anus with his fingers. He hurt her. She bled. He continued. He did not stop despite her pleas. Her anal pain took days to subside: Exhibit D.
The act of oral intercourse that followed was brief but again Fisher demonstrated his physical dominance in a particularly degrading manner. He ignored her distress. He ignored her vomiting. She suffered carpet burns immediately after the act of intercourse.
There was nothing loving or comforting in the final act of intercourse.
Crimes such as detention and intimidation are treated with real seriousness. Here there was a considerable degree of physical violence, and starting with the detention each episode went on for some the time; harm, both physical and psychological, resulted. Each offence was a serious example of its type.
There is no hierarchy of seriousness of the kinds of sexual intercourse. Each act here was very serious. Each act carried with it elements that were degrading and humiliating. Fisher knew what he was doing was causing harm and distress but he continued despite HJA's pleas to stop. He used his physical strength to humiliate and attempt to degrade his victim. Again, each offence was a serious example of its type. As s 61J and s 61I offences cover a wide range of possible events and circumstances direct comparisons with other offences are impossible. If a label is required both fall below but close to the middle of the range.
The assault in June 2015 was a separate act and requires separate punishment. Had it been the only offence alternatives to imprisonment may have been considered as, where possible, domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and appropriate intervention by the court: s 9(3)(g) Crimes (Domestic and Personal Violence) Act 2007. The Courts have a duty to ensure the safety and protection of all those who experience domestic violence. It must be stated, and restated, as I have already this morning done, that domestic violence, in all its forms, is unacceptable behaviour. I have already today made this comment in an unrelated matter.
Fisher must be punished for the three offences that occurred in close proximity with each other on 20 June 2015. The offences had different and discrete elements but many of the aspects that aggravate each are part of a common theme - humiliation and degradation of his victim. Each offence involved anger, jealousy, rage and the desire to dominate and demonstrate his dominance. Each successive offence was made worse by what preceded it.
Sentences are not to be made concurrent because of the similarity of the conduct or because the acts were part of the one course of criminal conduct. Here a sentence for the one offence could not sufficiently comprehend the criminality involved in the other. That said, as the offender's liability for this series of offences is linked temporally or otherwise, I am allowed flexibility in determining the structure of multiple sentences: Johnson v The Queen (2004) 205 ALR 346.
Here, there must be some considerable concurrence but also recognition that each event was part of a sequence that extended HJA's ordeal over a considerable period. I am also required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Fisher's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63 and Nguyen v The Queen (2016) 256 CLR 656 at [36] - [40].

Matter on Form 1

The court does not in any sense impose a sentence for that offence but the matter on the Form 1 does here operate to increase the sentence that would otherwise be appropriate: Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [68]. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42].

Maximum Penalties and Standard Non-Parole Period

Careful attention to the maximum penalties and standard non-parole period's is required. Both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said it is not appropriate here to look first to a maximum penalty or the standard non-parole period and then proceed by way of making a proportional deduction from it: Markarian at [30] and [31]. The standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness. There are reasons here, including the plea of guilty, my findings as to objective seriousness and the subjective case for Fisher, to vary those standard non-parole periods.

Guilty Plea

The guilty came late. The complainant had to wait some time before she knew she would not be put through the ordeal of having her version of events tested at trial. As she said in her Victim Impact Statement, Exhibit D, "The anxiety building up to court was almost excruciating, preparing to relive the horror and pain of the assault terrified me." The reason for the delay was not explained but I do note the matters for sentence were each subject of early admissions to police.
The percentage discount allowed for the utilitarian value of a guilty plea is primarily based on when it was entered: Thompson (2000) 49 NSWLR 383. Often late pleas attract a 10% reduction in the otherwise appropriate sentence. I do not however undervalue the utilitarian value of the guilty plea here, even if it came late. The decision in R v Borkowski [2009] NSWCCA 102 does not prevent a judge awarding a greater discretionary discount in an appropriate case: see Thawer [2009] NSWCCA 158 at [46] and Mooney v R [2016] NSWCCA 231 both related to guilty pleas at arraignment. In Thompson focus was placed on the timing of the plea but it was it was recognised that in particular cases - especially sexual assault cases - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson at [3]. In all the circumstances I intend to reduce the otherwise appropriate sentences by 15%. Sentencing is not meant to be strictly mathematical and the guidance offered is not determinative of a sentencing judge's individual discretion. I have taken care not to erode that reduction during the process of accumulation.

Other Cases

I have had regard to other cases to which I have been referred. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence may serve as a guide or help establish a range; however each case and each offender is individual: see Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 at [74]. As Justices Bell and Gaegler noted in The Queen v Pham [2015] HCA 39, "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' at [47].

Fisher's Subjective Case

Fisher's family background and history is uncontroversial. He is the fifth of seven children, one of whom died when he was 9 years old. His parents separated when he was young. He spend some time with his mother in a small town south of Perth, Western Australia, before returning to New South Wales to live with his father in the Wagga area. He was 16. He was not a great student. He was good at all sports, particularly boxing. He was considered to be an Olympic prospect. He moved to Wollongong to further that dream; there he met HJA.
Fisher has no criminal convictions. He has one matter on his record; a non-conviction bond for drink driving. Only a short time before this offending he gave a promise to be of good behaviour to a Local Court Magistrate. It is a concern that he broke his promise so soon after giving it.
A number of impressive references were tendered as Exhibit 3. Fisher has the unwavering support of his family. His father visits as often as he can. There are plans in place for his releases. He will live in Queensland and resume his boxing career. All believe he has learnt his lesson and can again be the dependable, trustworthy, polite and hardworking man they know. His brother believes gaol is not the place for him. There are no medical or drug and alcohol concerns. While in custody Fisher has demonstrated his reliability by being appointed a sweeper in the gaols he has been held in.
Some concerns were expressed that he may have had an attention deficit disorder. It was reported he suffered weight loss and had given up boxing as a result of his relationship with HJA. Text messages, Exhibit B, contradict the assertion he had given up boxing. He has no major psychiatric problems; at worst some depressive symptoms were noted by family and Mr Machin, a psychologist who reviewed him: Exhibit 1.
Mr Machin postulates that at the time of his offending Fisher had some symptoms of severe depression. He also postulates that Fisher and HJA had "a mutually dysfunctional pattern of infatuation." He also notes jealousy and anger. None of these controversial aspects of the history given to Mr Machin was supported by any testable evidence. Most of it was speculative and based on self-serving statements by Fisher. While every matter put on sentence must be taken into account I can give these opinions very little weight. This is particularly so when they are put forward as evidence going to my assessment of the circumstances of the offences: Qutami [2001] NSWCCA 353. Nothing before me established, on the balance of probabilities, that any psychological condition mitigated the offending or mitigates sentence. Nothing before me established any mutuality in the deterioration of the relationship. Nothing before me established anything done by HJA contributed in any way to what was done to her. To the contrary, it seems from all he said to Mr Machin that Fisher has yet to fully comprehend how serious his crimes were and that he took his jealously and anger to extremes that require his removal from the community for some time.
Mr Machin did however make a number of sensible points. Fisher has no prior history of violence. He has in the past demonstrated self-control. He does not want to be in gaol. He does not want to return. He has strong family support. With assistance on release it is probable he will not reoffend; not, perhaps, because he truly has insight into the harm caused but because he has now realised the damage he has done to himself and his family by his seriously criminal behaviour.

Remorse

Fisher's early admissions and ultimate acceptance of responsibility were practical demonstrations of remorse. They will be taken into account in his favour when I come to assess the appropriate sentences. There is however little in the material before me to show that he understands or appreciates the harm he caused. Nothing was said on oath. In his ERISP he said he knew it was wrong to do what he did but he continued despite HJA's obvious distress. In his letter to me he said he was ashamed but his concern appeared more for his loss of status and reputation and the distress and hardship caused his family rather than HJA: Exhibit 2. I am prepared to accept he wants to turn his life around. And, while I am prepared to accept he has demonstrated good behaviour while in custody and further detention may not contribute anything further to his rehabilitation, little he said can give comfort to HJA.

Special Circumstances

The need to accumulate sentences, Fisher's need to adjust to normal community life on release, and recognition of his subjective case and prospects for the future all require a finding of special circumstances increasing the part of the sentence to be spent on parole. In making that finding I note that the necessary deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. An appropriate non-parole period not only confers a benefit on an offender but also serve the interests of the community: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; M A [2004] NSWCCA 92; Afiouny [2017] NSWCCA 23.
The sentence here must be structured to allow for Fisher's progress to toward rehabilitation to be rewarded and to enable him to demonstrate that rehabilitation in the community under supervision. The longer he is supervised the safer the community will be.

Submissions

I trust that these remarks do justice to the submissions of Mr McMaster, Solicitor for the Director and Mr James QC for Fisher. Mr McMaster, in written and oral submissions, stressed the context of each offence and the level of violence and dominance involved, individually and collectively. Not surprisingly he called for sentences that reflected the need for both specific and general deterrence.
Mr James properly recognised the seriousness of Fisher's offending. He stressed the care needed to ensure that I not double-count matters that aggravated each offence and that the common thread to each offence not be multiplied. He stressed the impact of a long term of imprisonment on an immature, naïve and otherwise law abiding young man, who until these events had shown considerable promise. Mr Fisher, he submitted, had strong support in the community. With help, he still had a contribution to make: his hopes should not be dashed by a sentence that crushed all hope: see MAK (2006) 167 A Crim R 159, citing Clinch (1994) 72 A Crim R 301.

Synthesis

It is never easy to send a young man to gaol for the first time and for a considerable period. Courts do not ignore the lived experience of gaol. Gaols are terrible places. It appears that harsher prison conditions do not necessarily discourage future offending and that, paradoxically, the experience of imprisonment may exert a criminogenic effect - in other words, a crime-producing effect - by providing a criminal learning environment, by labeling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime. In today's list are other two other matters that illustrate that paradox. Young men with generally pro-social values at the time of incarceration may be placed with others who have anti-social attitudes. Being in custody also appears to have a negative effect on long-term job stability, and hence may contribute to reoffending: see Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence; April 2011.
Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. Here HJA was subject to a series of terrible and degrading events that each merit severe punishment. Those crimes and just and appropriate punishment for them must be at the forefront of my considerations.
In Munda v Western Australia [2013] HCA 38, [52] to [58], the High Court referred to the argument that that general deterrence has little rational claim upon the sentencing discretion in relation to crimes that are not premeditated. The joint judgement had regard to the evidence that in such cases heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. The joint judgment then made the important point that sentences have other purposes; purposes that recognise the legitimate interest of the general community in the denunciation and punishment of serious crime. Those purposes include, here: 1. The vindication of the dignity of each victim of sexual violence; 2. The need to express the community's disapproval of the type of offending. And; 3. The need to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. To that I end I recommend that Fisher be given every opportunity to undergo sex offender courses such as CUBIT.

Count 1 - Assault

In relation to Count 1, I indicate a sentence of 3 months.

Count 2 - Detain

In relation to Count 2, I indicate a sentence of 3 years 5 months

Count 3 - Aggravated Sex Assault plus Form 1

In relation to Count 3, as it carries a standard non‑parole period, I indicate a sentence of 6 years 9 months with a non‑parole period of 4 years.

Count 4 -Sex Assault

In relation to Count 4, as it carries a standard non‑parole period, I indicate a sentence of 3 years 5 months with a non‑parole period of 2 years.
The indicative sentences reflect a finding of special circumstances and the reduction given for the guilty plea.
I have considered issues of accumulation, concurrency and totality.
There will be a non-parole period of 5 years commencing 21 July 2015 and expiring 20 July 2020. The balance of the sentence of 3 years 5 months is to commence upon the expiration of the non-parole period and expiring on 20 December 2023
The total sentence therefore is 8 years 5 months.
You will be eligible for consideration for release to parole at the expiration of the non-parole period on 20 July 2020.

Amendments 03 April 2017 - added representation to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2017

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Judgment (18 paragraphs)

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