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Criminal Law Blog NSW

Fischer was found guilty of two counts of indecent assault

The judge did not view a 25-year delay as a mitigating factor when he sentenced a 73-year-old offender for indecent assault and sexual assault of a minor

After a trial, Fischer was found guilty of two counts of indecent assault against an 11-year-old girl. He was also convicted of five counts of sexually assaulting the same girl. The case is R v Fischer [2009] NSWDC 31.

The indecent assaults occurred in 1984. The court therefore sentenced Fischer under the law that was in effect at that time. The maximum penalty for an indecent assault upon a person under the age of 16 was 6 years in prison, while the maximum penalty for a sexual assault was 10 years.

Facts of the case

Fischer’s wife at the time befriended the victim’s mother after the victim’s father died. Fischer and his wife often visited the victim’s home. The first indecent assault occurred during one of those visits. Fischer hugged the victim and, during the hug, moved his hand down her pants and touched her vagina.

The second indecent assault occurred during another visit. The victim and a number of other people went horseback riding. The victim’s clothes became wet so she returned to the barn to change them. Fischer was in the barn. He placed his hand inside the victim’s underpants and rubbed vigorously. He also touched her breasts.

The sexual assaults involved penetrating the victim’s vagina with a finger. The penetration distinguished the sexual assaults from the indecent assaults.

The offences were opportunistic. They were not planned and did not involve “grooming” behaviour.

Offender’s circumstances

Fischer was 47 years old when the crimes were committed. He was 73 at the time of sentencing.

For much of his life, Fischer was part owner of an electronics company. Shortly after his business partner died, Fischer became ill and could not work. The company became insolvent. Fischer then began to manage a small dry cleaning business.

Fischer had prior convictions for indecent assaults upon young girls. Those convictions occurred about 12 years before the sentencing in this case.

Fischer has had two significant surgeries for life-threatening conditions and suffers from a number of health problems. His psychiatrist diagnosed him with clinical depression. A physician told the court that Fischer has a 50% chance of experiencing a stroke or renal failure within the next three years.

Sentencing considerations

By refusing to plead guilty, Fischer demonstrated a lack of remorse. For that reason, the court was concerned that Fisher’s likelihood of rehabilitation was poor. On the other hand, his age and health are factors that suggest he is unlikely to reoffend.

The court did not believe that the delay in prosecuting the crime mitigated the penalty. However, the offender has committed no new offences since 1996 and he obtained counseling after those crimes. In addition, he was a first offender when the crimes occurred, which is a mitigating factor.

The victim blamed her childhood abuse for the series of “very destructive relationships” that she has entered into as well as her alienation from her family. The court concluded that she has become emotionally fragile as a result of Fischer’s actions. The court viewed the victim as particularly vulnerable given her age and the fact that her father died shortly before the crimes were committed.

The court sentenced Fischer to concurrent terms of 6 months for indecent assault. He received longer sentences for sexual assault, resulting in a total sentence of 5 years. The court imposed a non-parole period of 3 years.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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