REGINA v FISHER

IN THE COURT OF CRIMINAL APPEAL 60339/99 SULLY J ADAMS J WEDNESDAY 31 MAY 2000 REGINA v STEVEN ANDREW FISHER JUDGMENT

1 SULLY J: I will ask Adams J to deliver the first judgment. 2 ADAMS J: The appellant pleaded guilty to malicious wounding of a Mr Glen Fitzpatrick on 6 September 1998 together with other charges as follows: using an offensive weapon with intent to prevent his lawful apprehension and the lawful apprehension of another person who was with him; and breaking and entering the dwelling house of one Sandra Botterill, in Bronte and stealing some property including a knife. 3 The circumstances may be shortly stated. On Sunday 6 September 1998 at about 8.30pm the appellant and a female entered the premises by breaking in. They removed property. About fifteen minutes later Mrs Botterill and her son arrived home and the appellant and his accomplice were disturbed and ran off. They were pursued, jumping over a number of fences, and discarding some of the stolen articles as they went. 4 The attention of Mr Fitzpatrick and his wife was attracted by the disturbance and he chased the appellant and his accomplice to Chesterfield Parade. Mr Fitzpatrick caught up with the female offender and asked her to surrender. 5 The appellant shoulder charged Mr Fitzpatrick, making it clear that he intended to enable her to escape. The appellant then stabbed Mr Fitzpatrick once with the knife previously stolen. A fight ensued and the appellant was punched in the face and then stabbed Mr Fitzpatrick for the second time on the left rear side of rib cage. 6 The fight continued and he stabbed yet again in the area of Mr Fitzpatrick's spleen. This was a serious injury. It was necessary for Mr Fitzpatrick to be in hospital for some ten days and suffer surgery before he was able to be released. 7 The victim impact statement was tendered which showed that the victim had suffered from traumatic reminders daily since the incident, was seeking counselling and could see no end to this suffering. It is clear in the circumstances that the injuries may easily have been even more serious. 8 It was accepted by the learned sentencing Judge that the appellant's reason for stealing was to obtain money to satisfy his drug addiction, a problem which he has had since he was twelve. His initial motivation was not aggressive in attacking Mr Fitzpatrick but to secure the release of his accomplice. It may be that he had no intention of seriously injuring Mr Fitzpatrick. Even so, three stab wounds demonstrate a willingness to use quite serious force to escape and a disregard for the injuries which he was inflicting. 9 In categorising this as involving a "serious level of violence" his Honour was saying no more than was just. The material maxima imposed by the Crimes Act 1900 for the offences in question were seven years for the malicious wounding, twelve years for the use of the offensive weapon and fourteen years for breaking and entering. In the circumstances, the most serious offence was that which involved wounding. But the total criminality displayed by the appellant was very grave indeed. It is not, in my view, a matter of mitigation in the circumstances of this case that the original crime was motivated by a need to satisfy a drug addiction. Even if that explained it, it certainly does not excuse the crime of breaking and entering into the private home of Mrs Botterill and stealing from it. It does not seem to provide even an explanation for the serious violence inflicted upon Mr Fitzpatrick in his attempts to make good his escape and that of his accomplice. 10 The appellant's record was not a trivial one. Aside from a number of motor vehicle offences, it involved thefts and breaking and entering on a number of occasions. It is unnecessary for me to set it out in detail here. 11 In 1994 the appellant appeared in the District Court on six charges of breaking, entering and stealing. He was sentenced to a total of four years and six months to be served by way of a minimum term as to two years and an additional term as to two years and six months. It follows that the offences in respect of which this appeal is brought were committed whilst he was on parole and is, therefore, a significant aggravating factor. It is clear that up to the commission of these offences at least, little hope for the appellant's rehabilitation could be reasonably held. I interpolate, that fortunately, both for the appellant and for the community, he has made a marked advance in this respect and although in the circumstances this cannot be reflected in the orders which I propose, I do not wish this opportunity to pass without giving due credit to the appellant for the substantial efforts he has made, in circumstances which are not easy, to effect his rehabilitation. 12 At the time of sentence the appellant was twenty-nine years of age and there were some most unfortunate events in his upbringing relating principally to his involvement with drugs which occurred at an early age. It is surmised that it may have been that this behaviour resulted, or at least was contributed to by his being sexually abused at an early age by someone, whom I should mention was not a family member. However, although he reported that he experienced some difficulties with his father in his earlier years, due to his father's heavy consumption of alcohol, his relationship with his parents was by and large supportive and had improved considerably, as I understand it, following the commission of this offence, a matter to which the pre-sentence report, which was tendered at those proceeding, attests. It was submitted by the solicitor then appearing from him in the District Court that the learned sentencing Judge should find that special circumstances existed in this case which should have led to a lesser minimum term than would have been otherwise the result of applying the statutory formula to the overall sentence. His Honour rejected this submission, particularly, as I understand it, upon two bases: the first being that the objective circumstances of the offences called for a substantial full time custodial sentence to vindicate both the denunciatory and the public and personal deterrent aspect of the purposes of criminal sentencing; secondly, because he did not consider that a longer time than that which would normally apply was necessary to secure the appellant's rehabilitation. 13 I consider that his Honour did not err in either of these respects. When the appellant was arrested for these offences, it was clear that the continuation of his parole was called into question. It was in due course revoked and, accordingly, he served the balance of the then outstanding additional sentence, which expired on 22 March 1999. He was sentenced on 10 June 1999. His Honour commenced the sentence which he imposed on 22 March 1999, taking the view that his earlier custody had related entirely to the matters for which he had earlier been sentenced by the District Court and having no connection with the matter which his Honour was considering. Again, I discern no error in the course that his Honour took in this regard. 14 It was submitted in this Court, however, that his Honour should have gone on to consider whether special circumstances were demonstrated by virtue of what was in effect an accumulation of sentences, in accordance with what was said in this Court in Regina v Simpson (1992) 61 A Crim R 58. In the course of giving his judgment, Hunt CJ at CL said at 61 - "I am satisfied that by a logical extension of that principle [adverted to in Moffitt (1990) 20 NSWLR 114] special circumstances may also exist in the appropriate case where a Court is imposing a series of cumulative sentences so that it can ensure a proper proportion between the total minimum term and the effective additional term even if it is only to produce an effective additional term near to or rather equivalent to one third of the total minimum term which the prisoner is to serve. It, obviously, would not be appropriate to apply such a principle in every case. However, the present case was such an appropriate case because of the extraordinary disproportion created simply by adhering to the formula provided by s 5(2)." 15 It may be fairly said that the effect of the cumulation to which I have referred in this case threw up the question whether, in accordance with Simpson, special circumstances required some adjustment of the minimum and additional term. However, I am not satisfied that his Honour by not adverting to this problem was unaware of it. The matter was not the subject of argument. It called, to my mind, in the circumstances of this case, for no positive assertion that it had been taken into account. 16 I think it entirely appropriate that his Honour should simply have imposed a sentence which dealt with the minimum sentence appropriate for the crimes which he was considering and an additional term which adequately dealt with the prospects of rehabilitation as he then saw them to be. I do not consider that this was a case which called for an application of the principle in Simpson, even had that matter been raised before his Honour. 17 I am unable to discern any error of law, therefore, in the sentences passed by his Honour, from which this appeal is brought. 18 Accordingly, I propose that leave to appeal to be granted and that the appeal should be dismissed. 19 SULLY J: I agree with the orders proposed. I am in general agreement with the reasons advanced in respect of the orders. I add simply this one observation: in Regina v Close (1993) 31 NSWLR 743 I expressed some views about the decision in Simpson, and about the reasoning which appeared to underpin that decision. I attempted as well to express my views about the principles of totality and of proportionality. 20 I adhere entirely to what I said on that earlier occasion; and I think that the approach there discussed, applied to the facts of this case, is more than ample to support the making of the orders proposed by Adams J. 21 The Court orders that -

1. Leave to appeal against sentence is granted. 2. The substantive appeal itself is dismissed.

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