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. Facts 3 It is difficult to be precise about the events that led to Richard's attack on his mother. However, a number of surrounding circumstances are known and provide some relevant information. The following account is largely taken from the Agreed Statement of Facts. 4 On Sunday 19 August 2007 Richard, his mother and father Barry Fisher spent the day cleaning a room (called the outdoor room) in the Flannerys' home, where they had gone to live. There had been some minor verbal arguments during the day, which were however soon settled. In mid-afternoon Mr Fisher's grandparents returned home from Mass and visiting friends. All five sat and watched rugby league on television before ordering and eating pizza for dinner in the dining room at about 6.30pm. After dinner Richard went back to the outdoor room to watch a DVD. He was smoking and drinking beer. His grandparents went to bed at around 8.30pm. His parents went into the lounge room of the premises to watch another television. Around 11.00pm Barry Fisher went into the outdoor room where Richard was still watching television. He shook his left hand and said, "Goodnight, mate, Mum's in the lounge asleep, she'll wake up when she's ready'" and went to bed. He did not hear any noise until he was awoken by his mother-in-law in the early hours of the morning. 5 Mrs Flannery, states that after going to bed at around 9.00pm she got up at around 1.30am and noticed that the light was still on in the room where Richard had been watching television. She went to turn it off and saw him lying on the lounge asleep. As she approached him she saw her daughter on the ground in front of the lounge. It was clear that she was dead. Mrs Flannery attempted to wake Richard but he did not respond. She ran back toward the bedroom and called out to her husband and Barry. No one had heard any noise. The police were called. Barry Fisher covered his wife's body and called out to Richard who was still asleep, "What have you done to your mother, you've killed her". He said that Richard said something but he could not recall what it was. 6 Ambulance officers arrived at shortly before 3am. Richard was still lying on his back on the lounge apparently asleep. The ambulance officers and indeed police, who saw movement or flickering of his eyelids thought that he may have been feigning sleep. However, because of his injuries, his right eye does not close properly when he is asleep and it may well be that ambulance officers and police were mistaken about this. Nothing depends on this, except that it reinforces the bizarre course of events. When Richard was eventually awoken, he struggled briefly and said that he did not know what was going on. 7 Richard was taken to the police station and interviewed by police at 6.20 that morning. He spoke slowly but overall his responses were appropriate to the questions. He expressed scepticism about his mother being dead. He said that the previous evening he went to bed in his bedroom after watching a programme on television with his mother. He denied assaulting his mother and said that he could not remember how he came to be covered in blood. When asked if he could explain how his mother might have received her injuries, he replied: "She may have did it herself, and blamed me, or something, tried to blame me". After further extensive questioning he was placed in the dock in the charge room and, at about 11.00am started to head butt the frame of the dock. When asked why he was doing it he said that he was tense and when asked why he was tense responded, "I killed me mother, I killed me mother, I killed me mother". He said that he remembered punching her once in the face but did not know why. He said, "I was aggro, I'm all messed up in the head". He then asked whether his mother was dead and when told that she was he said that he had killed her in language I think at once accepting and disbelieving. He later stated that he did not believe that he did it. 8 It is unnecessary to describe in detail the injuries suffered by Mrs Fisher. In brief, they were extensive bruising and cuts to her face, a broken nose, bruising of her scalp with a haemorrhage on the left side of her brain, manual strangulation marks, bruises on the upper limbs with a possible defence wound on the back of the right hand, and multiple fractured ribs. These injuries were caused by repeated blunt force impacts such as by punches or kicks. The cause of death was described as "Multiple Injuries". Background 9 Statements from members of the family have been tendered. Generally speaking, they describe the marked effects of Richard's accident, noting in particular that he could lose his temper without apparent reason. Taken as a whole, however, physical violence was only rarely involved. Mrs Flannery said that her daughter never told her that Richard had hurt her in any way. Mr Flannery said that he was aware of Richard yelling at his daughter on occasions and "he would get cranky with her" but he never saw him assault her. He said, however, that about four years ago his daughter showed him a knife wound to her arm which she said Richard had inflicted during an argument. He had never seen any other physical injuries on her. Barry Fisher described several incidents in which, after his return from the hospital, Richard had attacked his mother physically without apparent reason. He said that the only times he saw things "become a little heated between them" was when she would ask Richard to go to bed at night when he would not want to go. He said they would get into an argument but it never became physical. Barry Fisher described one incident involving a threat with a barbecue tool when the police were called and another involving an attempted choking. He said that he was able to avoid Richard and restrain him because of his physical disabilities. Overall it appears that Richard's behaviour would become worse when he drank but, as his father describes it, I think that that drinking was rather moderate than heavy. 10 At the time of the killing, Richard was taking medication to keep him calm, which had been prescribed for him by a doctor from the Brain Injury Unit. 11 It appears that Richard's earlier marriage, out of which he had two children had been marked by some violence but, it seems, nothing particularly serious and in was not just one way. The evidence about this is rather thin and I do not think that more can be made of it than that there were signs that, before his accident, Richard had some tendency to violence when he was affected by alcohol. The medical evidence 12 Following his car accident, Richard was in a coma for three months. He suffered complete loss of sight in his right eye, partial loss of sight in his left eye, removal of part of his skull, limited use of his left arm and left leg and very significant brain damage. Despite a remarkable recovery considering the extent of his head injuries, he was left with major executive frontal lobe problems. 13 Approximately sixteen months after his release from hospital a neuropsychological assessment was made. He was found to have had average intellectual ability but now was performing at a level significantly below that which would be expected on tasks assessing his ability to shift and sustain attention, verbal reasoning and verbal extraction, verbal fluency and verbal reasoning, speed of information processing, immediate memory span, working memory, recent memory and adaptive abilities encompassing problem solving and insight. He demonstrated a marked generalised pattern of cognitive deficits that would serve to impact across all aspects of his daily functioning. He needed to be placed under the supervision of the Guardianship Tribunal because of the severe nature of his cognitive impairment that served to prevent him from making informed decisions regarding management of his financial affairs and, at a more global level, to detract from his ability to make reasoned, informed choices regarding other important aspects of his life. Injuries to the frontal lobe of the brain notoriously caused poor impulse control, inappropriate responses to external stimuli, disinhibition given to agitation. Regrettably his brain damage significantly exacerbated what appears to have been a pre-morbid personality disorder in which he was prone to become aggressive especially with alcohol. 14 A psychological assessment carried out at Long Bay Prison on 28 October 2008 by Dr Wayne Reid, a clinical neuropsychologist showed the following results – "On examination Mr Fisher had a limited concentration span, visual problems, a left residual hemiparesis, was easily agitated, somewhat disinhibited, slow to respond and had difficulty with co-ordination. He was unable to tolerate a detailed neuropsychological assessment. … The overall results of the neuropsychological assessment are affected by Mr Fisher's mental state at the time of assessment. He performed in the borderline to extremely low range on tests of verbal intellectual ability where his verbal intellect was below the first percentile for persons of a similar age. Assessment of his pre-morbid level of intellectual ability based on his reading skills … further support that his intellectual abilities prior to his accident were in the borderline range. On tests of memory he showed marked impairment in his ability to learn unstructured verbal material in a word list learning test where he was only able to recall 5/15 words after the fifth learning trial. His retention of newly acquired information was also extremely poor. On tests of motivation he also demonstrated difficulty with his effort in performing tasks. Detailed assessment of other areas of his cognition was attempted … [but] he abandoned the test before completing the task. He was also unable to do tasks requiring visual search and integrate visual information with a grapho-motor response. At a behavioural level Mr Fisher had impairment in his speech, visual problems, difficulties with impulse control, concentration and was disinhibited." Discussion 15 There can be little doubt that this tragic incident would not have occurred had not it not been for Richard's extensive brain injury, probably exacerbated by alcohol. Of course, even the decision to drink is adversely affected by the lack of control, insight and understanding brought about by that damage. His condition is permanent and is likely to worsen with the probable early onset of dementia of which there are already some signs. 16 The essential sentencing dilemma in this case is that, on the one hand, the level of personal culpability must be regarded as low because of what in my view was the overwhelming contribution to his acts of his damaged mental functioning. By his plea he admits that he intended to cause his mother's death or very serious injury but, of course, there was no remotely rational reason for his having either of these intentions. I am quite satisfied they were the product of a gravely injured mind. It must be taken, of course, that he was aware at some rudimentary level of understanding that what he was doing was wrong but his capacity to control himself was gravely, if not completely, impaired. Although it is true that there is a history of violence before his accident involving his ex-wife, it appears that there was a degree of mutual violence and there is no suggestion that it even remotely compared with what he did to his mother. Certainly there were a number of incidents between Richard and his mother one of which – when he tried to choke her – was capable of being serious but he was stopped before it caused injury. It seems that the manifestations of physical violence were isolated and relatively minor. 17 Of course, the fact that Richard represents a danger in the future is a relevant matter to be taken into account on the question of his sentence. It this regard, I think it important to note that he has not, it seems, attacked anybody outside the family and that, within the family circle the only one he attacked was his mother with whom he had an obvious close relationship. Although, in general terms he may be regarded as dangerous, I do not think that there is anything in his history which suggests that there is a real as distinct from speculative risk that he might attempt to seriously hurt another person with whom he is not in a relationship such as that which he had with his mother. That is not to say that the question of dangerousness can be left out of account. But it should not be overstated. Professor Greenberg was asked by the Crown to assess the risk that Richard might commit a further offence involving violence and concluded that he fell within the moderate to high risk category. It is very important to appreciate that this does not indicate the risk that he might seriously injure, let alone kill, someone. Common sense, however, suggests that there is some danger that he might do so which cannot altogether be discounted. It is evident that the speculative character of this common sense view is inadequate for it to play a significant role in sentencing. But it would not be right to sentence Richard on the basis that he can be effectively rehabilitated, a factor that, in most cases, would mitigate a sentence. It is not, however, an aggravating factor. 18 Professor Greenberg thought that with further psychiatric assessment and development of an achievable risk management plan, there is a potential that the risk of committing an offence involving violence could be reduced. He noticed the importance in this respect of support and supervision whilst living in the community. Some assistance in this regard is available through the Justice Health Forensic Community Service which provides risk assessment and management plans for patients with forensic psychiatric problems such as Richards's Of course the question is whether some supervision can be arranged to ensure that the services are available to him and he participates in them. I can do nothing to affect this situation except, by providing an adequate parole period, give the Parole Board some scope for releasing him into a supervisory environment. This constitutes special circumstances for the purpose of varying the ratio to which s44 of the Crimes (Sentencing Procedure) Act 1999 refers. 19 The criminal law constrains me, rightly in my view, to sentence only to that extent which the offender deserves. I cannot sentence Richard to a longer term, even if the protection of the community required it. There is no evidence before me suggesting that the State can provide any institutional or quasi-institutional care for offenders like Richard when their sentence has expired. Much has been said about this appalling situation but I am not empowered to take it into account. Such care is needed, not only in his interest but also in the public interest. A prison is not the place for it. 20 The notions of retribution, denunciation and general deterrence are of limited, if any, relevance in cases such as this. Certainly, given the facts and in particular the admissions implicit in the plea of guilty, there is a measure of distinct moral culpability which it is appropriate should be punished but, as I have said, the law does not permit me to impose a greater sentence by way of prevention of possible further offences. Other relevant considerations 21 So far as the timing of the plea is concerned, a fundamental difficulty facing the defence was whether Richard was fit to plead at all. It is clear that legal representatives of persons potentially unfit to plead have a particular responsibility to ensure that their client is so fit. In this case, the potential problem was evident from the very beginning and it is not fair to criticise either Richard or his legal advisers for obtaining the relevant medical opinion before the matter could proceed. In my view, there was a duty to do so. That necessarily involved delay. Of course, it was a delay also at the hand of the Crown, since it was necessary that it should also obtain expert opinion on the matter, fitness to plead being an issue in respect of which the Crown also has a responsibility. In the result, although Richard was first presented for arraignment on 1 August 2008, the Crown was first informed of the intention to plead guilty to manslaughter by letter of 29 January 2009 and later at the arraignment of 6 February 2009. For formal reasons it actually occurred when Richard was arraigned before me. 22 In my view the plea was entered at the earliest available opportunity. Richard could not properly have been advised to plead until his fitness to do so had been determined. Accordingly, I do not accept the submission of the Crown prosecutor that the plea was not entered at the first available opportunity. He has referred me to a number of discussions in the judgments of this Court concerning this issue, but they do not seem to me to be applicable to a case of this kind. In my view the discount which should be applied to the sentence is 25 per cent. 23 The question of remorse is difficult to determine but, overall, it seems to me that Richard's initial responses to being told of his mother's death and his apparent responsibility for it reflects a degree of contrition though I think it is impaired by the severe limitations on his mental capacity to truly understand the appalling character of what he did. 24 Richard's prior record shows convictions for assault in 1995 and 1998 and for malicious wounding in 2003. It is evident from the way in which they were dealt with that these were not serious offences. I do not think there is anything in his record that is of particular relevance. 25 It is necessary also to take into account the undoubted fact that the prison environment must be a difficult one for him not only because of his very significant physical difficulties, including a difficulty with speech, but because of his grossly handicapped intellectual capacities. 26 Victim Impact Statements have been produced by Barry Fisher and, Michelle Pepper and Carol Flannery, Mrs Fisher's sisters. They eloquently and movingly express their terrible sense loss of and grief for the death of Mrs Fisher. Death is almost always sad but for her to have been killed in this terrible this way by her own son to whose care she had devoted so much of her own life must be beyond words to express. Despite their loss, however, there is no call for vengeance or retribution for what Richard has done. Mr Fisher and Michelle Pepper express their love and compassion for Richard. I am sure that they understand why what they have said cannot affect one way or another the sentence that it is my duty to pass but it is right that they should have their say in this way. I wish to extend, as best I can, my personal condolences to them. Conclusion 27 In my view the appropriate commencing point is six years imprisonment. Applying the utilitarian discount yields a total of four years and six months. However, in my view, a sentence of this term does not sufficiently reflect the seriousness of the offence, taking all relevant objective and subjective features into account. Accordingly I impose an overall sentence of five years and six months to commence on 19 August 2007. In light of the special circumstances I set a non-parole period of three years, expiring on 18 August 2010. The earliest date upon which the offender is eligible to be considered for parole is 18 August 2010. ********** 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.