United Kingdom

Pool builder spared prison for raping a sleeping woman is jailed on appeal

A pool builder spared jail for raping a sleepy woman who mistakenly thought he was her casual lover has been sent to prison by appeal court judges.

Matthew Patrick Fisher, now 25, was sentenced in November 2020 to a three-year community corrections order after being found guilty of rape in January 2018.

The NSW District Court jury was unable to reach a verdict on a second count and the Director of Public Prosecutions later directed there be no further proceedings in respect to that charge.

The NSW Court of Criminal Appeal on Friday dismissed Fisher's conviction appeal, and in a majority decision, allowed a crown appeal against the 'manifestly inadequate' sentence.

 A pool builder spared jail for raping a sleepy woman who mistakenly thought he was her casual lover has been sent to prison by appeal court judges (stock image)

Instead, he was jailed for five years with a non-parole period of three years to date from Friday.

'The sentence imposed must indicate to the community at large the seriousness of sexual assault on a sleeping woman who is a stranger to her assailant,' said Justice Christine Adamson.

'Excessive use of alcohol by a sexual offender will not mitigate the objective seriousness of non-consensual sexual intercourse against a vulnerable complainant.

'The consequences for the complainant were devastating and enduring.'

The woman, who had been in an 'on-again off-again' intimate relationship with a man, had gone back to his place with a group of people celebrating his birthday.

She testified that after going to sleep in his bed about 3am, she was woken up when the doona was pulled off her and a man, whom she assumed was her lover, performed oral sex on her and then they had intercourse.

Fisher told the jury he had gone into the dark bedroom feeling sick, saw someone was under the blanket, got on the bed himself and went to sleep on top of the covers.

He claimed he was woken by the other person touching him sexually, saying 'he did not know who the person was and it did not cross his mind to find out'.

They kissed and he gave her oral sex before they had intercourse for around 20 minutes.

The woman only realised the man was not her casual partner when he left the dark room and she gauged his height was different (stock image) 

The Crown contended Fisher did nothing to identify himself to the complainant, before or during either act of intercourse.

She consented to those acts under the mistaken impression that she was having sex with her lover and Fisher knew she was not consenting, having consciously deceived her by entering the bedroom and failing to announce himself.

It was only when he was leaving the bedroom that she could gauge his height and realised he was not her lover, whom she immediately texted.

Fisher's barrister unsuccessfully argued the guilty verdict was irrational and inconsistent with the failure to agree on the second count.

But the appeal court said the jury was persuaded Fisher had no reasonable grounds for believing the woman consented when he carried out the first act.

But some jurors may not have been have persuaded that, by the time of the conduct which constituted the second count, he had no such grounds, given her apparently positive response to the oral intercourse.

While Justice Elizabeth Fullerton agreed with Justice Adamson in allowing the sentence appeal, Justice Paul Brereton found while the penalty was lenient and merciful, it was not so manifestly inadequate that it was 'plainly unjust'.

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