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Fuller (a Pseudonym) v The Queen

Fuller (a Pseudonym) v The Queen

Case [2013] VSCA 186 24 July 2013

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0062

ERIK FULLER (A PSEUDONYM)	Appellant
v.
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2013
DATE OF JUDGMENT:	24 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 186
JUDGMENT APPEALED FROM:	DPP v [EF] County Court of Victoria, (Judge Millane, Sentence 10 April 2013) 2013 VCC 372

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CRIMINAL LAW – Sentence – Culpable driving causing death – Negligently causing serious injury – Theft of motor vehicle – Thefts of petrol – Imposition of aggregate sentence – Crown concession that aggregate sentence impermissible – Re-sentencing – Appellant 14 years and 10 months of age at time of offending – Low level intellectual functioning and psychological problems – Reduced moral culpability – Severe head injury sustained by appellant in accident giving rise to offences of culpable driving and negligently causing serious injury – Permanently increased intellectual deficit – Extra-curial punishment – General deterrence of little significance as sentencing consideration, likewise specific deterrence, despite prior and subsequent offending – Prospects of rehabilitation guarded – No relevant current sentencing practices – Sentence not exceeding three years’ imprisonment, which would permit making of Youth Justice Centre Order, inappropriately low having regard to entirety of circumstances - Appellant sentenced to total effective sentence of three years and nine months’ imprisonment with non-parole period of one year and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Backwell	Simon English Barristers & Solicitors
For the Respondent	Ms D Piekusis	Mr Craig Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

On 10 April 2013, on a plea of guilty, Erik Fuller was sentenced on three charges of theft (Charges 1, 2 and 3),[1] one charge of culpable driving causing death (Charge 4)[2] and one charge of negligently causing serious injury (Charge 5),[3] to an aggregate sentence of five years and ten months' imprisonment. The judge fixed a non‑parole period of three years' imprisonment. The judge made ancillary orders which had the effect of disqualifying Fuller from obtaining any licence or permit to drive for a period of four years commencing on the date of sentence. The judge recommended, pursuant to s.471(1) of the Children, Youth and Families Act 2005, (‘the Children’s Act’) that the Adult Parole Board make an order directing that Fuller be transferred to serve all or part of his sentence in a Youth Justice Centre. Finally, the judge stated, pursuant to s.6AAA of the Sentencing Act 1991, that but for the plea of guilty she would have imposed a sentence of eight years' imprisonment with a non‑parole period of five years and eight months' imprisonment.
[1]Crimes Act 1958, s 74.
[2]Crimes Act, s 318.
[3]Crimes Act, s 24.

Now Fuller applies for leave to appeal against sentence; and, if leave is granted, against the sentence imposed. He relies upon these grounds:

Ground 1: The sentence imposed is manifestly excessive in all the circumstances.
Particulars
The Learned Sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fuller (a Pseudonym) v The Queen

Details

AGLC: Fuller v The Queen [2013] VSCA 186
Case: [2013] VSCA 186
Decision Date: 24 July 2013

CaseChat Overview and Summary

In Fuller (a Pseudonym) v The Queen, the appellant, Fuller, sought to appeal against his sentence for culpable driving causing death and negligently causing serious injury. The case was heard in the High Court of Australia. Fuller, at the time of the offence, was 14 years and 10 months old and had low-level intellectual functioning and psychological problems. The primary legal issues were the appropriateness of an aggregate sentence, the applicability of a Youth Justice Centre Order, and the overall sentence considering Fuller's age, intellectual capabilities, and the nature of his offending.

The court considered whether an aggregate sentence was permissible and noted that the Crown conceded it was not. It also considered the sentencing principles applicable to young offenders with intellectual disabilities, weighing the considerations of general and specific deterrence, rehabilitation prospects, and the need to reflect the seriousness of the offending. Given Fuller's young age, cognitive impairments, and the permanent intellectual deficit resulting from a head injury sustained during the offence, the court found that a sentence not exceeding three years’ imprisonment would be inappropriate. The court emphasised the importance of reflecting the gravity of the offences while also considering Fuller's reduced moral culpability and rehabilitation prospects.

The High Court concluded that the original sentence was inadequate in reflecting the totality of the circumstances. The court re-sentenced Fuller to a total effective sentence of three years and nine months’ imprisonment, with a non-parole period of one year and nine months. This sentence was deemed appropriate, balancing the need for punishment and deterrence with the unique circumstances of Fuller's case. The court's decision underscored the necessity of tailoring sentences to the individual offender, particularly in cases involving young people with significant intellectual and psychological challenges.

Orders