Director of Public Prosecutions v Fuller
[2024] ACTSC 417
•19 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Fuller |
Citation: | [2024] ACTSC 417 |
Hearing Date: | 12 December 2024 |
Decision Date: | 19 December 2024 |
Before: | Christensen AJ |
Decision: | See [46]-[47] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated robbery – drive motor vehicle without consent – offender expresses depth of remorse and insight – consideration of reparation order – focus on rehabilitation – legislative curiosity as to when treatment order imposed – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) pt 6 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions ( Crown) Dylan Fuller ( Offender) |
Representation: | Counsel M Wadsworth ( Crown) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender) | |
File Number: | SCC 249 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Dylan Fuller is to be sentenced with respect to two offences:
(a)aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 25 years imprisonment, 2500 penalty units, or both (CAN 20243523) ; and
(b)drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code, carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both.
2․Mr Fuller accepts that the seriousness of his offending warrants nothing other than a term of imprisonment. He seeks though that he serve the remainder of this term by way of a drug and alcohol treatment order (treatment order).
3․The prosecution does not oppose such an outcome, but do, appropriately, express caution as to Mr Fuller’s capability to comply with the onerous demands that a treatment order involves given his history of noncompliance with community based orders. This caution is also reflected in the assessment by ACT Corrective Services who note this history, but do find Mr Fuller suitable for a treatment order. ACT Health Services also find Mr Fuller to be suitable for such an order.
4․The Court is to assess whether an offender is eligible for such an order, and whether such an order is an appropriate and suitable one in accordance with the legislated considerations in ss 12A, 80S, and 80T of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
5․Mr Fuller is a recidivist offender who provides an example of someone who warrants the opportunity for a sentencing order that he has not previously attempted, and that has a likelihood of ultimately fulfilling all sentencing purposes including community protection. Previous attempts with community based orders have not achieved Mr Fuller’s rehabilitation, and plainly another mechanism is required. Mr Fuller demonstrates a depth of capability to rehabilitate, and a strong motivation to do so, such that a treatment order is an appropriate and suitable order. A treatment order will be imposed for the following reasons.
The offending
6․Between 7 and 8 March 2024, a BMW vehicle was stolen during a burglary an auto repair shop located in Queanbeyan. Mr Fuller is not criminally responsible for that conduct, however he is responsible for driving this stolen vehicle, which he used in the aggravated robbery.
7․At about 4:45am on Friday 8 March 2024, Mr Fuller drove the BMW to the EG Ampol in Tuggeranong. He stopped at pump 14 and got out of the driver’s seat. His clothing included a white face mask and black gloves. He had a cast on his left hand which was visible under his gloves.
8․An unidentified female got out of the passenger seat. She picked up a diesel fuel pump and commenced refuelling the BMW, whilst the offender cleared the windscreen. At about 5am, the unidentified female finished refuelling the BMW. Mr Fuller walked inside the EG Ampol store and went to the stockroom where he collected a shopping basket. Shortly after he entered the store, the shop attendant, who is the direct victim of the robbery, entered the store from the refuelling area.
9․Mr Fuller browsed around the store and filled the shopping basket with a number of food and drink items. The victim went to the counter in order to serve him. Mr Fuller then approached the victim, pushed the basket towards him and asked him to fill it up.
10․Confused at the offender’s request, the victim said, “what do you mean by fill it up”, to which Mr Fuller replied with words to the effect of “fill it up with cash”. Mr Fuller then said, “do you want to get hurt” and produced an axe. The victim, understandably, felt that he was in danger, and he told Mr Fuller to take whatever he liked.
11․The victim moved to behind the counter and Mr Fuller followed him, placing the basket on the counter to the right of the victim. As the victim was trying to open the cash till, Mr Fuller reached behind him and opened the cupboard where cigarettes were kept.
12․Mr Fuller then started to fill the basket with cigarette packets, before then taking hold of the axe and continuing to remove a number of trays of cigarettes and pour them into the basket. As Mr Fuller was doing this, the victim removed the till and placed it onto the counter next to the basket. Mr Fuller asked the victim to put the money into the basket. The victim complied and picked up the till and tried to pour the money within it into the basket. Mr Fuller faced the victim and grabbed handfuls of cash out of the till.
13․About this time, the female manoeuvred herself into the driver’s seat of the BMW, started the engine, opened the front driver’s side door, and then moved back into the front passenger seat.
14․Once the basket was full, Mr Fuller picked it up, exited the store, and got into the open front driver’s side door of the BMW. He handed the basket to the female, who then placed a hood over her head. They then left the service station, with Mr Fuller driving.
15․A reconciliation of the cash and stock taken determined that $170.20 in cash was taken, and $3,191.83 of items were taken, comprising of one can of red bull, and 69 packets of cigarettes. The robbery charge particularises only the items as the property dishonestly appropriated, with the cash seemingly not included. The facts provide that, additionally, $115.72 of fuel was not paid for, although there is no charge for this, nor is it a particular of the robbery charge.
16․On Thursday 14 March 2024, police located the BMW in the backyard of an address in the ACT. The vehicle was examined, and Mr Fuller was forensically linked to the vehicle.
17․On Wednesday 20 March 2024, Mr Fuller was located and arrested by police. Subsequent police investigations linked Mr Fuller to this aggravated robbery by his clothing and an axe that was located at an address associated to him.
18․The use of the axe in robbery accounts for it being an aggravated form of the offence, which provides for the maximum penalty. The use of this form of weapon is of particular concern as it was capable of inflicting serious injury. It would have also been particularly distressing for the victim to be confronted with such a weapon. I have viewed the closed circuit television footage of the robbery, and the axe was brandished towards the victim in a menacing manner more than once. Additionally, there was a verbal threat accompanying the use of the weapon. There was also physical aggression directed towards the victim at the commencement of the robbery during a struggle over the shopping basket. From there, the engagement between the victim and Mr Fuller was relatively protracted, and the victim was in a vulnerable position as an employee of a late night service station.
19․The use of the gloves and mask, even permitting for protections people may take in contemporary times following a pandemic, suggests a level of premeditation to the offending, as does the use of the axe and the conduct leading up to the confrontation with the victim. This aspect heightens the role of deterrence in the sentence to be imposed.
20․I accept the prosecution submission that offending of this type can have lasting psychological effects on victims. This particular victim experienced what I consider to be a more serious example of the ‘typical’ form of an aggravated robbery of a service station, having regard to the duration of the incident, the extent of threats, and the relatively high value of financial loss. This conclusion is also drawn from consideration of authorities that the prosecution helpfully assisted with, albeit, while acknowledging the limitation that such authorities provide. I found of most assistance the authorities of R v LM [2021] ACTSC 71, R v Murphy [2021] ACTSC 94, and R v Twerd [2018] ACTSC 153 which all involved aggravated robberies of store premises with the use of an offensive weapon. Sentences in the order of three years imprisonment were imposed in those matters.
21․As to the driving offence, the period of driving and length of driving is largely unknown, beyond its role in the robbery. That the vehicle was used in the commission of the robbery offence is an aggravating feature for the driving stolen motor vehicle offence, but this also warrants that a level of concurrency is appropriate in the orders to be imposed. There is no suggestion that the vehicle was damaged, and I infer that it was returned to the owner. No doubt the owner though still experienced frustration and inconvenience from the offender’s driving of the vehicle, as well as the sense that their privacy and safety was compromised by Mr Fuller’s conduct with the vehicle.
22․Mr Fuller was on conditional liberty at the time of this offending, which is an aggravating factor on sentence. Some 4 months before this offending, he had been sentenced in the Queanbeyan Local Court for theft and property offending and a community corrections order was imposed for a period of two years. Approximately one month before this offending, he had been sentenced in the Queanbeyan Local Court for an offence of affray, and a community corrections order was imposed for a period of 16 months.
Subjective circumstances
23․Mr Fuller is now aged 32 years. He is a Wiradjuri and Barkindji man through the ancestral birthrights of his mother and father. He was born interstate and has a number of siblings.
24․A psychological report dated 25 November 2024 from Ms Vanessa Edwige outlines the traumatic experiences of Mr Fuller’s childhood that found an opinion by Ms Edwige that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) are enlivened. Mr Fuller also outlined this in his evidence in court. The prosecution does not submit against a finding that such principles are enlivened. I do not consider it necessary to add to Mr Fuller’s trauma by repeating the basis for such a conclusion in the circumstances. Suffice to say that I am satisfied that the principles from Bugmy are enlivened.
25․When Mr Fuller was aged 12 years his mother and siblings relocated, and a step-father who was a positive influence came into his life. Mr Fuller describes this man as supportive. Mr Fuller was able to engage with a level of stable schooling, although he exhibited behavioural difficulties, reflective of his home environment, and left school during year eleven. While challenges remained in the family circumstances, Mr Fuller’s step-father provided him with someone who he wanted to make proud.
26․The passing of Mr Fuller’s step-father when Mr Fuller was 22 years old had a deleterious effect on Mr Fuller and the family unit, with challenging circumstances that followed. This included that his mother passed away.
27․It was during this time that Mr Fuller started using methamphetamine. He came to be living in the Canberra region and was initially working with his brother in a trade company. He continued substance use, and, after a relationship breakdown with the mother of his son born in 2020, he came to be homeless.
28․He continued substance misuse, including the use of heroin, until the time of the offences. Ms Fuller expressed to Ms Edwige that at the time of the offending he had been up for five or six days straight, following the use of methamphetamine. He had no money to keep going, so he offended to “get more drugs”. He has in the past had experiences of drug psychosis, and depression and anxiety, but not other major mental illness disorders. He is now on a pharmacotherapy program to good effect. Ms Edwige finds Mr Fuller to have a substance misuse disorder, with this consistent with the finding of ACT Health Services.
29․Mr Fuller has written a letter to the Court, which he expressed during sworn evidence. Mr Fuller outlines the circumstances of his life which have led him to where he is today. He demonstrates a depth of insight into the impact of his background, and the role of substance dependency in his offending. He expresses his depth of remorse for the pain he has caused to the victims of his offending, and the impacts this had had on his family. He expresses his motivation to change, being his son, and his determination in becoming a better father, brother, and member of society.
30․The contents of the letter from Mr Fuller are supported with what he has expressed to report writers. To Ms Edwige, he explained his shame and how upset he is about what he has done. Ms Edwige describes Mr Fuller as “extremely remorseful” for his offending behaviour.
31․In his evidence, Mr Fuller expressed how sad and sorry he was for the person he robbed, and expressed insight into how scared the victim would have been. Mr Fuller expresses that he wishes he could apologise. To give effect to this, I consider it appropriate to include in the order an opportunity for a restorative justice process, a process that Mr Fuller has expressed an interest in. It will though of course be a matter for the victim whether he wishes to participate.
32․The report of Ms Edwige makes plain that Mr Fuller continues to feel the effects of his background of trauma, that he meets the criteria for complex post traumatic stress disorder, and that he will benefit from ongoing psychological support in this regard. Mr Fuller has been accessing psychological support while in custody. Mr Fuller also expresses an interest in accessing cultural supports to facilitate healing, a measure Ms Edwige recommends in recognition that “Aboriginal and Torres Strait Islander conceptualisations of wellbeing and healing are inextricably bound to cultural understanding of connectedness: our sense of self, identity, and sense of belonging to family, community and Country”.
33․I am satisfied that the support available in this regard under a treatment order, which includes support available through the Aboriginal Liaison Officer on the treatment team and access to services at Winnunga Nimmityjah and Yeddung Mura, is capable of meeting Mr Fuller’s needs in this regard.
34․Ms Edwige opines that Mr Fuller’s prospects of rehabilitation are positive. He has the protective factor of his son, to whom Mr Fuller is a dedicated father. Ms Edwige expresses that Mr Fuller has the ability to make positive gains if provided with the appropriate supports and treatments.
35․Mr Fuller has not previously undertaken any comprehensive alcohol and drug rehabilitation programs. ACT Health Services find him suitable for a treatment order, and have identified a suitable residential program for that purpose. Following a period in residential rehabilitation, Mr Fuller has a prospect of housing through the Yeddung Mura Transitional Accommodation Program and the Justice Housing Program. There can be a level of confidence that Mr Fuller will be able to obtain secure accommodation to enable continued rehabilitation following the residential program.
Criminal history
36․Mr Fuller has a criminal history, primarily from New South Wales (NSW). This includes for driving offences, assault, and property offending. It is a criminal history that disentitles him to leniency. As the prosecution submitted, the current offending evidences an escalation in Mr Fuller’s offending behaviour. This emphasises the need for significant rehabilitative intervention before Mr Fuller progresses further on his criminal offending trajectory.
37․Mr Fuller’s criminal history otherwise demonstrates his non-compliance with community based orders. This aspect is highlighted in the ACT Corrective Services assessment report, although he is also found suitable for a treatment order by that service. ACT Corrective Services acknowledge that Mr Fuller has in the past successfully completed a parole order and a NSW Community Corrections Order. It is also apparent that Mr Fuller has engaged in employment, as a spray-painter and in construction, and he has engaged in pro-social activities such as sports. He has an interest in resuming employment and football. While Mr Fuller has not demonstrated that he has always been compliant with community based orders, there is a solid basis upon which to conclude that he is capable of living a pro-social life.
Reparation
38․Application is made for a reparation order pursuant to ch 7 of the Sentencing Act. The amount sought relates to the financial loss to the service station, in an amount commensurate with Mr Fuller’s role in the offending.
39․The difficulty with making such an order is that Mr Fuller currently has no capacity to pay any such compensation, and is unlikely to have any such capacity in the near future. While ch 7 provides no guidance as to the criteria to be applied in determining whether such an order is made, I am not satisfied that to do so would reflect the overarching objects and purposes of sentencing as contained in ss 6 and 7 of the Sentencing Act. Mr Fuller is someone at the beginning of a journey of rehabilitation, one that, initially, prioritises recovery from substance dependency over employment. In the circumstances of this matter, a reparation order would unduly detract from Mr Fuller’s intention towards rehabilitation, and detract from the fulfilment of the sentencing purposes in this matter.
Consideration
40․The prosecution did not oppose the imposition of a treatment order. The prosecution acknowledged that a treatment order would appropriately prioritise Mr Fuller’s rehabilitation and it has the prospect of reducing Mr Fuller’s risk of re-offending by addressing his underlying issues with illicit substances.
41․I agree. Mr Fuller is eligible for a treatment order, and I am satisfied that it is an appropriate and suitable order to be imposed: ss 12A, 80S, 80T Sentencing Act.
Pleas of guilty
42․Mr Fuller initially pleaded not guilty to the charges in the Magistrates Court. Accordingly, a brief of evidence was prepared. Following this, Mr Fuller entered pleas of guilty to the two charges and the matter was committed to the Supreme Court for assessment in the Drug and Alcohol Sentencing List. The prosecution submissions included that had Mr Fuller not pleaded guilty, the matter would have been proceeded as a trial in the Supreme Court. While I am not satisfied that a full reduction is appropriate, as was submitted on Mr Fuller’s behalf, there is sufficient utilitarian value to the plea of guilty that a reduction in the order of 20 per cent is appropriate.
Presentence custody
43․Mr Fuller has been remanded in custody on these charges since his arrest on 20 March 2024. During this time, he has served sentences of imprisonment for offences of minor theft and destroy/damage property imposed by the Magistrates Court on 27 November 2024. The effective term for those sentences was from 28 August 2024 to 27 November 2024. Accordingly, the period that Mr Fuller has spent in custody solely on remand in respect to these charges, as at the date of these reasons and orders, is 182 days.
44․However, as will become apparent, Mr Fuller is not to be released from custody at the date of these orders. This is because a treatment order is to be imposed, with his treatment order to commence with an immediate entry to a residential rehabilitation program. The program that he has been assessed as suitable for is available from 6 January 2025. The effect of s 12A (3)(a) of the Sentencing Act is such that where the sentence is taken to have stated on a day before the day the sentence is imposed, being the situation that applies here, the treatment order “must … suspend the remaining part of the sentence beginning on the day the sentence is imposed”. Accordingly, the treatment order for Mr Fuller is not to be imposed, that is, not to take effect, until 6 January 2025. Orders will be made to reflect this legislative curiosity. These orders will extend to reflecting a period in presentence custody that contemplates a release on 6 January 2025.
45․I note that this subsection would benefit from legislative reform to enable the Court to determine any date considered appropriate for the commencement of a treatment order, rather than the restriction as currently drafted. This will enable the Court to impose a treatment order at the most therapeutically beneficial time, rather than the Court being constrained by an unnecessary legislative requirement.
Orders
46․For those reasons, I make the following orders:
(1)The following orders are made and taken to be imposed on 6 January 2025:
(2)On the charge of aggravated robbery (CAN 3523/2024), the offender is convicted and sentenced to 30 months imprisonment, reduced from 37 months on account of the plea of guilty, to commence on 31 May 2024 and end on 30 November 2026.
(3)On the charge of drive motor vehicle without consent (CAN 3524/2024), the offender is convicted and sentenced to 10 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 31 July 2026 and end on 30 May 2027.
(4)The total period of imprisonment of 3 years will commence on 31 May 2024 and end on 30 May 2027.
Drug and alcohol treatment order
(5)A drug and alcohol treatment order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Dylan Edward Fuller, in respect of the eligible offences set out in Orders 1 and 2, of which Dylan Edward Fuller has been convicted, and for which he has been sentenced for a total term of 3 years imprisonment.
(6)The drug and alcohol treatment order be for 2 years, 4 months, and 25 days.
(7)The custodial part of the drug and alcohol treatment order for the eligible offences be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 6 January 2025 until 30 May 2025.
(8)The treatment and supervision part of the drug and alcohol treatment order be for 18 months, to commence on 6 January 2025 and end on 5 July 2026.
(9)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Dylan Edward Fuller be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the treatment and supervision part of the drug and alcohol treatment order, 6 July 2026, until the end of the total sentence, 30 May 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
(10)For the treatment and supervision part of the drug and alcohol treatment order:
(a)The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed.
(b)Dylan Edward Fuller undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team.
(c)Dylan Edward Fuller travel directly on release from custody on Monday, 6 January 2025 in the company of an employee of Canberra Recovery Service and admit himself to the rehabilitation program conducted by Canberra Recovery Service and remain there until he has completed the program but not for less than 3 months unless otherwise directed by the person in charge of his program at Canberra Recovery Service.
(d)Dylan Edward Fuller obey all reasonable directions of the person in charge of his program at Canberra Recovery Service and the facility at the program and comply with all the rules and obligations of the program and the facility.
(e)If Dylan Edward Fuller is discharged from or leaves the program before the 3 months’ duration of the program or in duration as otherwise directed by the person in charge of his program at Canberra Recovery Service, he report to the ACT Corrective Services by 4:00pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed.
(f)Dylan Edward Fuller not return a positive test sample under alcohol and drug testing.
(g)Dylan Edward Fuller not consume or use alcohol, cannabis, illicit drugs and prescription drugs not prescribed to him.
(h)Dylan Edward Fuller comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(11)Dylan Edward Fuller be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force before he leaves the Court precincts.
(12)It is noted that Dylan Edward Fuller has indicated a willingness to engage in restorative justice, and it is recommended that the Director-General (corrections) refer the offences of aggravated robbery (CAN 3523/2024) and drive motor vehicle without consent (CAN 3524/2024) for restorative justice pursuant to pt 6 of the Crimes (Restorative Justice) Act 2004 (ACT) at a stage as deemed appropriate by the Director-General (corrections) during the Drug and Alcohol Treatment Order.
(13)Dylan Edward Fuller be directed to appear in court for DASL Review in person on Friday, 17 January 2025 at 11:30am.
47․The further orders of the Court are:
(14)List the matter for confirmation of sentence orders on Monday, 6 January 2025 at 10am before the duty Judge.
(15)Dylan Edward Fuller be remanded in custody until Monday, 6 January 2025 at 10am, and appear in the Supreme Court on that date for imposition of the sentence orders.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 29 May 2025 |
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