Fisher v R; R v Fisher [2021] NSWCCA 91
Fisher v R; R v Fisher [2021] NSWCCA 91 · Read the judgment on AustLII
Catchwords: Sentencing – self-induced intoxication
In this decision the CCA has reviewed the authorities relating to self-induced intoxication on sentence.
This decision involved both an appeal against conviction and a Crown appeal against the inadequacy of the sentence, but the summary only deals with the Crown appeal against inadequacy. Because Mr Fisher was the applicant to one appeal and the respondent to the other and the various judgments are inconsistent with how they refer to him, it is just simpler to refer to him here as ‘the defendant’.
The defendant was at a social gathering. The complainant (who was basically unknown to the defendant) went to bed in a friend’s bedroom at the same gathering. Her friend wasn’t at the gathering, but the complainant and the friend had shared an ‘on-again, off-again’ sexual relationship. She went to bed fully-clothed at about 4am, moderately intoxicated, and awoke to someone undressing her. That other person performed oral sex on her. Believing that other person to be the friend in whose bed she was sleeping – and with whom she would sometimes have sex in broadly similar circumstances – the complainant did not resist. The other person was not the friend, but the defendant. He gave evidence at trial (but not on sentence) which was basically to the effect that it was the complainant that had initiated the encounter. The evidence also disclosed that he was heavily intoxicated at the time of the events in question. The jury convicted him of a charge relating to oral intercourse – a decision which was upheld on appeal – but was unable to agree in relation to a count of penile/vaginal intercourse.
The sentencing judge was therefore required to make factual findings on sentence. In the course of making factual findings, the sentencing judge repeatedly stated that the intoxication was not to be taken into account as a mitigating factor (because of Crimes (Sentencing Procedure) Act s 21A(5AA)). However, his Honour went on to find that intoxication was to be considered as part of an explanation as to how the defendant might have truthfully believed (albeit on a totally unreasonable basis) that consent was forthcoming. On the basis of that and other findings, his Honour eventually concluded that a Community Correction Order was the appropriate sentence.
My majority (Adamson J, Fullerton J agreeing with the outcome but on a different basis; Brereton JA dissenting), the CCA allowed the Crown’s inadequacy appeal.
In Adamson J’s judgment, her Honour observed that self-induced intoxication cannot be taken into account either on the defendant’s knowledge of whether the complainant consented (because of what was then Crimes Act s 61HA(3)(e) – now found in s 61HE(4)(b)), or as a mitigating factor on sentence (at [225] – Fullerton J explicitly agreeing at [73]). Although the sentencing judge said that he was not taking self-induced intoxication into account in mitigation, the CCA is obliged to assess the substance of what the sentencing judge did and is not bound by the form of the judgment (at [229]). There were three alternative states of mind available upon which the sentencing judge could have found the offence proven (knowledge / recklessness / or belief upon unreasonable grounds), and the fact of intoxication led the sentencing judge to make a finding in accordance with the least serious of those alternatives (at [231]). That was an error.
Fullerton J, in her additional reasons observed that in assessing moral culpability, the statutory prohibition against taking self-induced intoxication into account is engaged (at [70]). There are a number of authorities (listed at [71] of her Honour’s judgment, and extracted in Brereton JA’s dissenting judgment at [24]-[26]) which provide that while a sentencing court is entitled to refer to an offender’s intoxication as an explanation for the context in which the offending occurred (emphasis in original), it is not open to the Court to take the next step of ameliorating or reducing an offender’s culpability on that basis. That is so irrespective of whether they compromised the offender’s judgment or his or her assessment of the surrounding circumstances (at [71]). There is a fine line which must not be crossed between, on the one hand, having regard to intoxication to explain what was otherwise inexplicable conduct, and on the other, treating that as a mitigating factor. In the view of Fullerton J (and Brereton JA – notwithstanding his Honour was in the minority), the sentencing judge was not required to assess the factual question as if the defendant was sober at the time of the offending. However, he was obliged to disregard the defendant’s intoxication entirely when inquiring into his state of mind for the purpose of assessing the objective seriousness of the offending (at [74]).
Accordingly, the defendant was resentenced to 5 years with a non-parole period of 3 years – a very substantial increase indeed from his original Community Correction Order.
The question of how to sentence offenders without taking into account self-induced intoxication will presumably continue to bedevil practitioners and judicial officers alike. Accepting the policy considerations which mean that drunkenness should not be allowed to be used as an excuse for aberrant (not to mention criminal) behaviour, nevertheless, the ‘fine line’ is sometimes easier to describe in the abstract than apply in practice.