Fuller v R

Case [2022] NSWCCA 203


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Fuller v R [2022] NSWCCA 203
Hearing dates: 2 May 2022
Date of orders: 19 September 2022
Decision date: 19 September 2022
Before: Brereton JA at [1];
Adamson J at [6];
N Adams J at [15].
Decision:

(1) Leave to appeal granted and the appeal allowed in part.

(2) The sentence imposed by Cavanagh J on 9 November 2020 is quashed. In lieu thereof, the applicant is sentenced to imprisonment for 8 years and 4 months. The non-parole period of 5 years and 8 months will commence on 19 December 2018 and expire on 18 August 2024.

Catchwords:

SENTENCING – murder charge – plea of guilty to manslaughter at Local Court case conference and at trial – plea not accepted by Crown – manslaughter verdict – Crimes (Sentencing Procedure) Act s 25E –– mandatory discount – error conceded

SENTENCING – manslaughter – objective seriousness – where sentencing judge found “well above mid-range” and declined to find species of manslaughter – duty of sentencing judge to find facts consistent with jury verdict – extreme provocation and excessive self-defence – no error – sentence not otherwise manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 23, 24, 421

Crimes Amendment (Provocation) Act 2014 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1A (ss 25A-25F), s 54D

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

AB v The Queen (1999) 198 CLR 11; [1999] HCA 46

Ahmad v R [2021] NSWCCA 30

Black v R [2022] NSWCCA 17

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Davidson v R [2022] NSWCCA 153

House v The King (1936) 55 CLR 499; [1936] HCA 40

Ke v R [2021] NSWCCA 177

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lane v R [2013] NSWCCA 317; 241 A Crim R 321

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Magro v R [2020] NSWCCA 25

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Paterson v R [2021] NSWCCA 273

R v Alexander (1994) 78 A Crim R 141

R v Bolt [2001] NSWCCA 487

R v Fuller [2020] NSWSC 1580

R v Isaacs (1997) 41 NSWLR 374

R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31

Refaieh v R [2018] NSWCCA 72; 272 A Crim R 245

Rogers v R [2021] NSWCCA 61

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

SmithvR [2015] NSWCCA 193

Sun v Chapman [2022] NSWCA 132

Category:Principal judgment
Parties: Justin Fuller (Applicant)
Regina (Respondent)
Representation:

Counsel:
Mr W Terracini QC with Mr P Kondich (Applicant)
Mr G Newton (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2018/390994
Publication restriction: Nil.
 Decision under…

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Fuller v R [2022] NSWCCA 203
Case
[2022] NSWCCA 203
Decision Date

CaseChat Overview and Summary

The appellant, Fuller, was sentenced for manslaughter after a plea of guilty to manslaughter was not accepted by the Crown. The case was heard in the New South Wales Supreme Court. The appellant had previously pleaded guilty to manslaughter at a Local Court case conference and at trial, but this plea was rejected by the Crown. The jury ultimately found the appellant guilty of manslaughter, and the trial judge assessed the objective seriousness of the offence as well above mid-range, declining to characterise the manslaughter as a species of extreme provocation or excessive self-defence.

The legal issues before the court included whether the sentencing judge erred by not accepting the appellant's guilty plea to manslaughter, and whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge should have accepted the guilty plea and applied a mandatory discount under the Crimes (Sentencing Procedure) Act s 25E. The Crown conceded an error in the sentencing process regarding the mandatory discount but maintained that the sentence was not manifestly excessive.

The court found that the trial judge had not erred in declining to accept the appellant's plea of manslaughter, as it was the jury's role to determine the appellant's guilt. The court also held that the sentencing judge's assessment of the objective seriousness of the offence was well supported by the evidence, and the sentence was not manifestly excessive. The court accepted the Crown's concession of error regarding the mandatory discount but found that it did not affect the overall outcome of the sentence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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