R v Fisher

The defendant pleaded guilty to offences relating to the killing of his pregnant partner and, consequently, her unborn child (both domestic violence offences). In determining the appropriate sentence, Davis J considered submissions as to (1) whether the offence of killing an unborn child was less serious than the offence of manslaughter, and (2) the operation of s 9(1)(e) Penalties and Sentences Act 1999 concerning protection of the community. In relation to the first issue, his Honour determined the species of offences were equally serious. However, the seriousness of an instance of offence is to be determined by reference to the surrounding circumstances. In relation to the second issue, his Honour found s 9(1)(e) did not affect the principle in Veen v The Queen (No 2) (1988) 164 CLR 465, that no sentence ought to be disproportionate to the gravity of the offending. Ultimately, the defendant was sentenced to an effective sentence of 13 years, with serious violent offence declarations made.

Davis J

15 March 2023

Background

The defendant pleaded guilty to the manslaughter of his partner, who was seven months pregnant at the time, and killing of an unborn child (both domestic violence offences). He accepted the cause of death was choking. He also pleaded guilty to interference with her corpse, having hidden her body in the boot of a car.

Sentence of the Supreme Court

In determining the appropriate sentence, Davis J considered submissions as to (1) whether the offence of manslaughter was more serious than the offence of killing an unborn child, and (2) the operation of s 9(1)(e) Penalties and Sentences Act 1999 concerning protection of the community.

Penalty for killing an unborn child

No comparable sentences were identified for the offence of killing an unborn child. His Honour adopted the remarks of Mullins J (as the President then was) in R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582 that “the absence of comparatives makes sentencing more difficult but the application of relevant sentencing principles will result in a just sentence according to law.”

After reviewing the elements of manslaughter (s 302 Criminal Code 1899) and killing an unborn child (s 313(2) Criminal Code 1899), His Honour determined that the causative act in the latter offence is “limited to an assault and the event is the destruction of an unborn child rather than the death of a legal person.”

Justice Davis rejected the defence’s submission that the killing an unborn child offence was less serious than manslaughter because only the latter concerned the death of a legal person (rather than the death of a baby en ventre sa mère). Parliament has determined the same maximum penalty, namely life imprisonment, applies to both offences. His Honour explained:

“The offence of killing an unborn child is not, as a species of offending, less serious than manslaughter. Whether a particular offence of killing an unborn child is more or less serious than a particular offence of manslaughter is determined by reference to all the circumstances of both offences.”

As has been judicially observed “many times”, the sentences for the offence of manslaughter can vary widely because of the equally varied circumstances of offending. His Honour considered the “same can be said of an offence of killing an unborn child.”

His Honour found in this case the manslaughter was more objectively serious than the killing of an unborn child. Here, the violent act of choking was committed against a pregnant woman. The defendant did not attack her unborn child; rather the child’s death was a consequence of the act which constituted the manslaughter.

Section 9(1)(e) Penalties and Sentences Act 1999 (“PSA”)

At sentence, the Crown emphasised s 9(1)(e) of the PSA. That provides that one of the purposes of imposing a sentence is to “protect the Queensland community from the offender”. The defendant had a long history of sexual and violent offending against both children and women, including the rape of a 2-year-old girl. For that offence, the defendant had been placed on a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003, which he breached. The present offending occurred around 18 months after the expiry of that order.

His Honour referred to Veen v The Queen (No 2) (1988) 164 CLR 465. In that case, the High Court explained the necessity to protect the public is “a relevant consideration on sentence, but no sentence ought to be disproportionate to the gravity of the offending.”

David J found s 9(1)(e) did not change that principle, citing ss 9(10) and 9(11).

Sentence imposed

Ultimately, after considering the other factors set out in s 9 of the PSA, his Honour imposed a head sentence of 13 years imprisonment. The manslaughter and killing of an unborn child were declared serious violent offences, requiring 80 per cent of the imprisonment to be served before parole eligibility.

A Hughes of Counsel