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
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…
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.
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Details
AGLC
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.