John Ian FISHER v R [2008] NSWCCA 129

New South Wales Court of Criminal Appeal

CITATION: John Ian FISHER v R [2008] NSWCCA 129

HEARING DATE(S): 6 June 2008

JUDGMENT DATE: 20 June 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Hidden J at 31

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentences - pleas of guilty - aggravated sexual assault - aggravated indecent assault - counts on indictment were representative - whether uncharged criminal conduct taken into account as an aggravating feature - whether sentence manifestly excessive - appeal dismissed

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED : The Queen De Simoni [1981] HCA 31; 147 CLR 383 R v JCW [2000] NSWCCA 209

PARTIES: John Ian FISHER (applicant) REGINA (respondent)

FILE NUMBER(S): CCA 2007/3127

COUNSEL: S Corish (applicant) N Adams (respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (applicant) S Kavanagh - Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0004

LOWER COURT JUDICIAL OFFICER: English DCJ

IN THE COURT OF CRIMINAL APPEAL

2007/3127

McCLELLAN CJ at CL SIMPSON J HIDDEN J

20 June 2008 John FISHER v R Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at East Maitland on 24 July 2007, following his pleas of guilty to five charges of offences of a sexual nature. Two of the offences were of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900, which provides a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 10 years is prescribed. The remaining three counts were of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, each of which carries a maximum penalty of imprisonment for 7 years, and in respect of which a standard non-parole period of 5 years is prescribed. 3 In respect of the first count of aggravated sexual assault English DCJ imposed a total term of imprisonment for 10 years, made up of a non-parole period of 6 years, commencing on 22 March 2008. On each of the remaining counts her Honour imposed fixed terms of imprisonment of, respectively, 4 years, 6 months, 2 years and 4 years; the first was also specified to commence on 22 March 2008, and therefore run concurrently with that earlier imposed; the remaining sentences were specified to commence on 22 March 2007. 4 The overall effective sentence was therefore a sentence of imprisonment for 11 years with a non-parole period of 7 years. 5 In so sentencing the applicant English DCJ found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances justifying departure from the proportions between the head sentence and the non-parole period existed. She gave effect to this finding by imposing an overall non-parole period that is sixty-four percent of the overall term.