John Ian FISHER v R [2008] NSWCCA 129

John Ian FISHER v R [2008] NSWCCA 129

The Court held that the sentencing remarks, read as a whole and without minute scrutiny, did not show that the sentencing judge treated the admitted representative course of conduct as an aggravating factor. The finding that the relevant offence was at the mid range of objective seriousness was proper on the charged...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 June 2008
Procedural Posture
Criminal Appeal Against Sentences / Application for Leave to Appeal Against Sentences in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['aggravated Sexual Assault' 'aggravated Indecent Assault' 'representative Counts' 'uncharged Criminal Conduct' 'de Simoni Principle' 'manifest Excess']
['criminal Law' 'sentencing'] ['aggravated Sexual Assault' 'aggravated Indecent Assault' 'representative Counts' 'uncharged Criminal Conduct' 'de Simoni Principle' 'manifest Excess']

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Procedural Posture

Criminal Appeal Against Sentences / Application for Leave to Appeal Against Sentences in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge took uncharged criminal conduct into account as an aggravating feature in assessing objective seriousness.' 'Whether the sentencing judge sentenced the applicant for an offence involving ongoing systematic sexual abuse and thereby breached the prohibition in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.' 'Whether the sentencing judge erred in assessing the victim J as being at the youngest end of the scale for the offence.' 'Whether the overall sentence was manifestly excessive.']

Ratio Decidendi

The Court held that the sentencing remarks, read as a whole and without minute scrutiny, did not show that the sentencing judge treated the admitted representative course of conduct as an aggravating factor. The finding that the relevant offence was at the mid range of objective seriousness was proper on the charged offence alone. Any inaccuracy in describing the 13-year-old victim as at the youngest end of the scale was of little moment because the offences were committed against a vulnerable 13-year-old. No other sentence was shown to be warranted in law, and the overall sentence was not manifestly excessive.

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']