Regina v Fisher [2009] NSWSC 348

New South Wales Supreme Court

CITATION : Regina v Fisher [2009] NSWSC 348

HEARING DATE(S) : 17 & 24 April 2009

JUDGMENT DATE : 24 April 2009

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : A sentence of five years and six months to commence on 19 August 2007 is imposed. In light of the special circumstances, a non-parole period of three years, expiring on 18 August 2010 is set. The earliest date upon which the offender is eligible to be considered for parole is 18 August 2010.

CATCHWORDS : Manslaughter - substantial impairment - limited culpability - delay in obtaining opinion on fitness to plead - effect on utilitarian discount - sentence too low when discounted - discount adjusted

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44

CATEGORY : Principal judgment

PARTIES : Regina Richard Allan Fisher

FILE NUMBER(S) : SC 9311001/08

COUNSEL : Mr P Barnett SC (Crown) Mr M Austin (Offender)

SOLICITORS : I Knight (Crown) S C Kavanagh (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

ADAMS J

24 April 2009

2008/9311 – R v Richard Allan FISHER

SENTENCE

HIS HONOUR:

Introduction 1 In November 1999 Richard Fisher (called Richard for simplicity) then 28 years old, suffered very severe head injuries in a car crash. His brain was badly and permanently damaged, especially in those parts that control impulses, aggression, self-control and insight. He was left also with severe physical handicaps. His parents, especially his mother, cared for him. On 19 August 2007 at around midnight he killed his mother in a frenzied violent assault in a room of his grandparents' home. His father and grandparents had gone to bed. They heard nothing. It seems that there was no or no very long argument. Mrs Fisher's body was discovered lying on the floor at about 1.30am by Richard's grandmother, Mrs Flannery. Richard was lying on the lounge, asleep and covered in blood. He has always maintained, and it is not suggested that this is untruthful, that he cannot remember what happened. 2 Richard was arrested and, in due course, charged with murder. His medical history was reviewed and he was examined by psychiatrists qualified by both Crown and defence. He was also seen by a neuro-psychologist. Their opinions substantially agreed on the extent and significance of his brain damage. There was a real question as to whether he was mentally capable of pleading to the charge but it was held that he probably was and, in due course, he pleaded not guilty of murder but guilty of manslaughter. The basis of the plea is that, at the time he killed his mother, Richard's capacity for understanding what he was doing, his insight and ability to control himself had been so substantially impaired by his damaged brain that he was guilty of manslaughter rather than murder even though he had intended to cause death or grievous bodily harm.