Director of Public Prosecutions v Fuller
[2025] VCC 961
•8 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01944
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB FULLER |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2025 | |
DATE OF SENTENCE: | 8 July 2025 | |
CASE MAY BE CITED AS: | DPP v Fuller | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 961 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Guilty by jury verdict - Common law assault - Guilty plea - Motor vehicle theft - Handling stolen goods - Possession of methylamphetamine - Related summary offences of drive whilst disqualified - Committing an indictable offence whilst on bail – Defence of sudden emergency – Loss of utilitarian value of guilty plea due to rejection of early plea offer – Bugmy enlivened – Substantial criminal history in regard to age of offender – Youth – Risk of institutionalisation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
Sentence: Total effective sentence of 12 months’ imprisonment.
s6AAA re charges 4,5,6 and related summary offences: 18 months with non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Stokes for Plea Ms D. Tang for Sentence | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | Emma Turnbull Lawyers |
HIS HONOUR:
1Jacob Fuller, on indictment N12477566.1, you pleaded guilty in the absence of the jury panel to Charge 4, motor vehicle theft, Charge 5, handling stolen goods, Charge 6, possession of methylamphetamine, and this morning you pleaded guilty to related summary offences of drive whilst disqualified and committing an indictable offence whilst on bail.
2You pleaded not guilty to attempted kidnapping and common law assault and recklessly place in danger of serious injury or reckless conduct endangering persons. I entered a verdict of not guilty in relation to that charge after hearing a no case submission. The jury acquitted you of attempted kidnapping but found you guilty of the alternative offence of common law assault.
3The max penalties are as follows – common law assault, five years; theft, 10 years; handling stolen goods, 15 years; possession of methylamphetamine, five years, because I am not satisfied on balance of probabilities it was not committed for a purpose related to trafficking because of the quantity, the packaging and admissions that you intended to sell some of it. Driving whilst disqualified is a maximum of two years, and commit an indictable offence on bail, three months.
4The evidence led at trial relating to the common law assault included extensive CCTV footage and evidence from eyewitnesses. The offences occurred in November 2022.
5At the time of the offending, you were 23 years old. You were living in Werribee. You were in a relationship with the complainant, Rachel Page.[1] She was 18 years old. The relationship was a volatile one and had been on and off over approximately five months in 2022.
[1]A pseudonym.
6The volatile nature of the relationship is reflected in the text message exchanges between you and Ms Page, which were tendered as an exhibit at the trial.[2]
[2]Exhibit “Z” of the trial.
7The offending occurred on 11 November 2022. At that time, the victim believed she was pregnant with your child, but subsequent blood tests confirmed that she was not pregnant.
8On 11 November 2022, you were driving a blue Hilux which had been stolen from Medina Drive, Hoppers Crossing on 7 November 2022. The basis of the car theft is not that you took the vehicle from Medina Drive, but that you took possession of it from another person knowing that it was a stolen vehicle.
9On 11 November, Rachel Page was sitting in the front passenger seat. You stopped at Presidents Park in Werribee, and she got out of the vehicle.
10She walked to the Better Choice Service Station on the corner of Greaves Street North and Heaths Road, Werribee. This occurred at 9.36 am. She purchased a drink from the rear fridge in the service station. You drove the Hilux into the service station and then walked into the shop area and watched her as she paid for her drink and left the shop. You followed her out of the shop area. As she began running away, you yelled out, ‘Rachel, stop'.
11She ran to Greaves Street North, looking behind her. You got back in the Hilux and followed her. Your driving is shown on the CCTV footage. At times, you reversed back against traffic. Your driving was aggressive, and the victim was clearly trying to get away from you.
12A witness, Aaron Mercieca, who gave evidence at the trial, saw you following her and he pulled over outside the front of 286 Greaves Street North.
13The victim turned right into Gerald Street. You followed her, reversing into Gerald Street around a vehicle parked at the Give Way sign on the wrong side of the road, before stopping the vehicle in Gerald Street. You got out of the car. The victim ran away again. You got back into the vehicle and drove after her as she ran.
14You got out of the vehicle again and grabbed her around the waist. The Hilux started to roll away, presumably because you had not put on the handbrake, and you ran towards it. You got into the vehicle and reversed it back towards the complainant. That was the conduct that was the basis of the reckless conduct endangering, of which I found you not guilty. In my opinion, the driving was nowhere near conduct endangering, but it was nonetheless aggressive driving.
15You then got out of the vehicle again and grabbed the complainant from behind, seemingly moving her towards the driver’s side door of the Hilux with her struggling to get away from you.
16At around this time, a bus came along the road driven by witness, Nihat Ceylan. He stopped the bus and got out to assist. Aaron Mercieca as well ran in to help the victim as your struggled with her. He told you to stop. He grabbed you and pushed you away from her. He held you against the fence at 263 Greaves Street North. The fence collapsed and you fell back into the property.
17Eventually, the victim was taken to Mr Mercieca’s vehicle for her safety where another witness, Ms Sheahan, was present. You then got back into the Hilux and left the scene.
18The evidence of the witnesses, namely Sheahan, Rush, Holmes, Mercieca, Ceylan, who saw the confrontation between you and the victim, was that you were behaving very aggressively towards her. Mr Mercieca and Mr Ceylan felt it was necessary to physically intervene for her safety.
19In your record of interview, you referred to the complainant having a history of making threats to kill herself, including by taking pills. A text message was read into evidence which she sent a few days later, and referred to the pills, 'Taking her out'.
20You said in the record of interview that in the car she told you she was going to kill herself by running in front of traffic, and that your actions were to protect her from herself. You said you were trying to get her into the car, and she would not get in.
21Based on this account, your counsel, Ms Swiney, argued that the defence of sudden emergency was a lawful justification for your conduct.
22The jury rejected the defence of a lawful justification or excuse. In relation to the attempted kidnapping offence, your counsel also argued that the conduct alleged in this case, carrying away the complainant from where she was on the nature strip towards the vehicle, was not sufficient to constitute the completed offence, because that was what the prosecution argued would have amounted to the completed offence, and therefore your actions were not sufficient to constitute an attempted kidnap. It seems to me the primary argument was that the distance covered was insufficient for kidnapping, and obviously, the jury accepted that argument.
23The defence of sudden emergency has both a subjective and objective component. The prosecution must show beyond reasonable doubt that the accused did not reasonably believe there was a sudden emergency, and that he did not believe reasonably that his response was the only way to deal with the sudden emergency, and that the conduct was not a reasonable response to the emergency.[3]
[3]Crimes Act1958 (Vic) s 322R
24Your counsel argued that I should find on the facts that the jury rejected your defence based on there being other reasonable responses to the threat. That was certainly one of the arguments the prosecution made in this case.
25In this case whilst I cannot exclude beyond reasonable doubt that the complainant made some sort of threat in the car, in my opinion you exaggerated the seriousness of the circumstances between you and the victim in the car. I accept that you lied about when you found out she was pregnant to support your account and to make it sound as though there was an urgent situation of imminent danger to the victim that you faced.
26It is clear from the footage that the victim is running away from you. It is also apparent from the footage that she was not trying to kill herself. The witnesses who observed the conduct viewed it as unjustifiable aggression towards her and that is why they stepped in to assist.
27I do not accept that your conduct was an effort to protect her. In my opinion, that suggestion is at odds with the aggressiveness of your behaviour, both physical and verbal; your driving whilst following her; and the physical force you used in the assault.
28In my view, this was an assault in the context of a volatile dysfunctional relationship, which was calculated to control the victim and to get her back to the car. You were not going to tolerate her walking away from you. Even if you harboured some view about her safety, it was in my opinion it was mixed with a motive of control and was not close to being reasonable.
29In those circumstances, in my opinion, you were not motivated by a reasonable belief in a sudden emergency.
30The other offences are dealt with briefly in the prosecution trial opening, and there was not a great deal of discussion about them on the plea. The stolen blue Hilux was found in Tarneit abandoned later that day. That was a matter we had some pretrial discussion about.
3115 November 2022 you were arrested at your grandparent's house. You were searched. You were in possession of a stolen licence, Medicare card and three stolen bank cards. That is the basis of Charge 5. Police also located eight small zip lock bags containing methylamphetamine. The total weight was 5.5 grams. You were interviewed, and you made admissions to using and intending to sell the methylamphetamine; hence, my finding in respect of the maximum penalty. You were also a disqualified driver at the time of this incident.
32In respect of your guilty pleas, they are significant. I accept that in respect of those charges they indicate a willingness to facilitate the course of justice, and they do have utilitarian value. The trial would have taken a longer period to resolve had those offences been in play. It is obvious from the procedural history that you always intended to plead guilty to those matters. I accept they may indicate some remorse for your conduct, although it is difficult in these circumstances to gauge remorse. Nonetheless, your guilty plea in respect of those matters is significant.
33This matter has very long procedural history. You were arrested and remanded in custody back on 15 November 2022. The table supplied by the defence indicates that you made an offer to resolve this matter, the theft of motor vehicle, common law assault, drive whilst disqualified, committing an indictable offence whilst on bail, possession of methylamphetamine, and another offence; essentially the offences that you now face.
34Then there was a series of committal mentions, and on 9 March 2023, for other offences that must have been pending at that time, you received a five-month term of imprisonment with 113 days presentence detention declared; so that 113 days is not counted in the presentence detention that I have available in this sentencing exercise. On 28 March 2023 there was a Crown bottom line to resolve that was rejected by the defence. You got bail in May 2023.
35You received another term of imprisonment on 27 November 2023. I do not know when those offences were committed, but you had substantial presentence detention available to you at that stage as well.
36In any case, the matter wound its way through the courts for another couple of years almost, with sentence indications in this court, a case conference back in November 2024, none of which succeeded in resolving the case.
37In the end the finding of the jury is in accordance with the plea offer you made way back in January 2023. Although you ran a defence on the common law assault, I do not have any doubt in these circumstances that had that been available at the outset of this trial, you would have pleaded guilty to it. That is what you had always indicated.
38So, in relation to the trial there is the lost utilitarian value, having regard to the plea offer you made at a very early stage in this matter. In those circumstances I effectively deal with this matter as though you had in fact pleaded guilty. That is really the upshot of those principles, given the plea offer you made back in 2023.
39The other aspect of this procedural history is that you have been in custody for various reasons for the bulk of the last two and a half years it seems to me. There have been periods where you have been out and you have not thrived in those circumstances, and committed other offences, but nonetheless there were opportunities had the plea offer been accepted, where you could have been sentenced alongside other matters, and it seems to me inevitably there would have been some concurrency imposed.
40You might have received a non-parole period, but this matter would certainly be well behind you if those plea offers had been accepted.
41So, there are two significant matters that arise out of that, or three perhaps. One is the issue of totality. The second is the loss of utilitarian value of your plea, and the third it seems to me is the risk of you becoming institutionalised by the lengthy period you have spent in prison.
42Your background, it is dealt with in a report of Mr Ian McKinnon dated 23 February 2023, which seemingly was prepared for other intimate partner offences. Mr McKinnon says this: 'Mr Fuller reported he was born in Australia and raised initially by his biological parents. When he was six years of age his parents separated and he remained in his mother's care, only occasionally seeing his father'. You have three younger half siblings, two on your mother's side and one from your father. You mainly lived in Bacchus Marsh throughout your childhood. You are estranged from your mother. You told Mr McKinnon you do not have anything to do with her. You said she threw you out on the streets when you were nine years old and you went to live with your firstly maternal grandparents, but they, in your words, ‘gave you the flick’.
43Then you lived with your paternal grandparents in West Footscray, and you have stayed with them until you were 14. You describe living with them as more stable and that those were better times. You said this is back in 2023, and you keep in contact with your grandparents, but you moved out with a partner in Melton when you were 18. At that time, you said you had been living in West Footscray, Melton, Geelong, and at Ravenhall.
44You describe living with your father in Werribee, but that was unsatisfactory. You also describe not having a good relationship with your stepfather.
45You went to Darley Primary School and Altona Meadows Primary School, and then to Bacchus Marsh College. You were asked to leave in Year 8. You said of your schooling that you missed a lot of school that you had a lot of problems: you were fighting teachers, and you did not attend much. You then went on to finish VCAL Year 11 at St Joseph's Learning Centre. You said your nan tried to make sure you were going to school.
46You have had a difficult background, that is undeniable. Ms Swiney submitted that the Bugmy principles have some application in this case. There is reference in the report to substance abuse and use of methylamphetamine was apparent in this offending. I accept that you had a difficult upbringing which has contributed to a lifestyle of drug use and criminality that you have adopted that is related to the offending in this case, and that that is relevant to the assessment of your moral culpability.
47The other aspect of the report that Mr McKinnon wrote is that he says you have demonstrated antisocial and criminal traits with a significant propensity for violent behaviour, particularly when frustrated and angry when you perceive you are being abandoned or rejected by a significant other, and when you are engaging in significant levels of substance abuse. He said you pose a risk of reoffending in a similar violent manner. He could not have been more accurate, Mr Fuller, it is plain that you have difficulty accepting the wishes of intimate partners, and that is an ongoing problem for you.
48You have a substantial criminal history for someone of your age, which includes several offences for contravening intervention orders, including persistent contraventions and multiple prior convictions for driving whilst disqualified. You generally have a bad road traffic history. You have subsequent offences as well I am told, and you have received these other terms of imprisonment during your remand period for these offences. Your prior convictions are relevant to your moral culpability, your prospects of rehabilitation, and the need for specific deterrence in this matter.
49It is undeniable that the offending in this case might have been dealt with summarily had the matter resolved to a common law assault back in 2023, but it does have its serious features.
50In deciding the appropriate sentences in this case, I must have regard to the maximum penalties as a guidepost as they reflect the seriousness of such offences.
51The common-law assault is an example of intimate partner violence. There are multiple appellate sentencing authorities emphasising the need for general deterrence and denunciation in respect of such offending.
52In your case, you have relevant prior convictions for offending against intimate partners. This is obvious from your antecedents and also from what Mr McKinnon said. You have been to court before for this type of offending, and nothing the courts have done so far has deterred you. From your past experiences before the courts, you must have well understood the wrongfulness of such behaviour, and yet you have committed such offences on multiple occasions.
53That said, this is an example of intimate partner violence at the lower end of the spectrum which would ordinarily have been dealt with in the Magistrate’s Court, as would the other offences to which you have pleaded guilty.
54The drive whilst disqualified, in my opinion, is a serious offence, given the number of times you have been to court for that offence. Here you were on this day, driving a stolen vehicle when you had no right to be driving at all.
55The amount of methamphetamine was not insignificant, and you made admissions to having an intention to sell some of it.
56The car theft, the drugs, the handling stolen goods offences, the driving whilst disqualified, and committing offences on bail, are indicative of your recidivism. They are lower objective gravity examples of those offences but short terms of imprisonment with modest periods of cumulation are appropriate.
57You were born in 1999. You are still a young man, and you were a young man at the time of these offences.
58Based on the information I have, which is not much, the risk of you re-offending is considerable; but, having regard to your age, the need to facilitate your rehabilitation remains a significant sentencing purpose. You are in some danger of becoming institutionalised it seems to me.
59You are in custody for other matters. I am told the other charges are due to be heard as a plea later this month, and that they relate to firearms offences.
60A combination sentence might have been appropriate for these offences, but because you are in custody and I do not know what the outcome of your pending matters will be, I have formed the view that a straight sentence of imprisonment is appropriate.
61In sentencing you I have had significant regard to the fact that you have now been in custody for most of the last two years even though only 355 days of that time is presentence detention for these matters. Your lost opportunity for concurrency is significant.
62I have had regard to deterrence specific, and general and denunciation, especially as regards the intimate partner offence – the common law assault. I have balanced those principles with the matters in mitigation.
Sentence
63My sentences in this matter are as follows. Can you stand up? For the common law assault, you are convicted and sentenced to a period of seven months. For the motor vehicle theft, Charge 4, you are convicted and sentenced to a period of imprisonment of six months. For handling stolen goods, Charge 5, you are convicted and sentenced to a period of imprisonment of four months. For Charge 6, possession of a drug of dependence, you are convicted and sentenced to a period of imprisonment of three months.
64For driving whilst disqualified, you are convicted and sentenced to a period of imprisonment of four months. For committing an indictable offence whilst on bail, which is an aggravating feature for all of these offences, so I have decided to convict and discharge you.
65I make the following orders for cumulation. Two months of the sentence on Charge 4, one month of the sentence on Charge 5, one month of the sentence on Charge 6, possession, and one month of the sentence for the drive whilst disqualified is cumulative on the base sentence for the common law assault, which makes a total effective sentence of 12 months. I allow presentence detention in this matter of 355 days.
66The 6AAA is tricky here, given there were pleas of not guilty for some matters, and guilty to others, but on the offences to which you pleaded guilty, without those pleas of guilty, I would have sentenced you to a period of imprisonment of 18 months and fixed a non-parole period of 12 months.
67
The presentence detention is 355 days, so your future it seems to me will now be determined by what happens to you in the Magistrates' Court,
Mr Fuller, do you follow?
68OFFENDER: Yes, I do, Your Honour.
69HIS HONOUR: I just say this to you. The offending against intimate partners will lead to very long sentences if it continues. Do you follow?
70OFFENDER: Yes, I do.
71HIS HONOUR: Furthermore, you have so many offences for driving whilst disqualified that any further offending of that nature will also lead to further periods of imprisonment.
72I am required I think to make an order in respect of your licence on the car theft.
73MS STOKES: Yes, Your Honour, with a conviction, that is correct.
74HIS HONOUR: I have to make an order on a car theft.
75HIS HONOUR: On the car theft and the driving whilst disqualified, I will make a further order for disqualification of 12 months from today's date. Do you understand that?
76OFFENDER: Yes, I do, Your Honour.
77HIS HONOUR: Are there any other orders I need to make? Forfeit the drugs. Have we got a draft order for that?
78MS STOKES: That was filed as well. It is in relation to drugs and the various ID cards, Your Honour.
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