Pool builder SPARED jail for rape of a sleeping woman who did not resist because she thought he was her lover is being jailed for five years after prosecutors appealed its pathetic verdict
- Matthew Patrick Fisher, now 25, snuck into the woman’s room and climbed into bed
- She was sleeping when sex started. She thought he was her lover
- It wasn’t until he left that she realized he was a completely different man
- Fisher was found guilty of rape but was only given a ward correction order
- The prosecution appealed “clearly unjust” and he was sentenced to five years in prison
A pool farmer spared jail for raping a sleepy woman who mistakenly thought he was her casual lover. She was taken to jail by appeals court judges.
Matthew Patrick Fisher, now 25, received a three-year prison sentence in November 2020 after being convicted of rape in January 2018.
The NSW District Court jury was unable to pass judgment on a second point, and the Director of the Public Prosecutor’s Office later instructed that no further proceedings should be initiated in this regard.
The NSW Court of Criminal Appeal on Friday dismissed Fisher’s appeal and allowed an appeal against the “apparently inadequate” judgment in a majority decision.
A pool farmer spared jail for raping a sleepy woman who mistakenly thought he was her casual lover.
Instead, he was sentenced to five years without parole as of Friday.
“The judgment passed must indicate to the entire community the gravity of sexual assault on a sleeping woman who is unfamiliar to her attacker,” said Judge Christine Adamson.
“Excessive alcohol consumption by a sex offender will not reduce the objective severity of non-consensual sex against a vulnerable complainant.
“The consequences for the complainant were devastating and permanent.”
The woman, who had a close relationship with a man, had returned to his place with a group of people celebrating his birthday.
She testified that after going to sleep in his bed around 3 a.m., she woke up when the Doona was pulled by her and a man she suspected was her lover was having oral sex with her and they then had intercourse.
Fisher told the jury that he went into the dark bedroom sick, saw someone was under the covers, got on the bed himself, and fell asleep on the covers.
Claiming he was woken up by the other person who was sexually touching him, he said, “He didn’t know who that person was and it didn’t cross his mind to find out.”
They kissed and he gave her oral sex before intercourse for about 20 minutes.
The woman only realized that the man was not her random partner when he left the dark room and she measured that his size was different (archive image)
The Crown alleged that Fisher did nothing before or during sexual intercourse to identify himself to the complainant.
She consented to these acts under the false impression that she was having sex with her lover and Fisher knew that she did not consent, deliberately cheating on her by entering the bedroom and not logging in.
It was only when he left the bedroom that she could measure his height and realize that he was not her lover, whom she immediately texted.
Fischer’s lawyer unsuccessfully argued that the guilty verdict was irrational and incompatible with failure to agree on the second count.
However, the appeals court said the jury believed that Fisher had no reasonable cause to believe that the woman consented in performing the first act.
However, some jurors may not have been convinced that he did not have such reasons at the time of the conduct that constituted the second count, as they appeared to have responded positively to oral intercourse.
While Justice Elizabeth Fullerton agreed with Justice Adamson to allow the appeal, Justice Paul Brereton noted that while the sentence was lenient and compassionate, it was not so blatantly inadequate that it was “clearly unjust.”