Fuller v The King - [2023] NSWCCA 282

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Fuller v R [2023] NSWCCA 282
Hearing dates: 14 August 2023
Date of orders: 14 August 2023
Decision date: 13 November 2023
Before: Adamson JA at [1]
Wright J at [2]
Fagan J at [72]
Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeals – appeals against sentence – whether sentencing judge erroneously took into account criminal history as an aggravating factor rendering the offending more objectively serious – remarks to be read as a whole – no error established – appeal dismissed
CRIMINAL LAW – appeals – appeals against sentence – manifest excess – where non-parole period in excess of statutory ratio – sentence not unreasonable or plainly unjust – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 31(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A(2)(d), 56

Cases Cited:
Cherry v R [2017] NSWCCA 150
Honeysett v R [2023] NSWCCA 138
R v Nahlous [2013] NSWCCA 90; 228 A Crim R 50
R v Shankley [2003] NSWCCA 253
Sampson v R [2023] NSWCCA 239
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Justin Fuller (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00246975
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

02 February 2023

Before:

Hock DCJ

File Number(s):

2021/00246975

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mr Fuller, pleaded guilty to a charge of intentionally causing to be received a document threatening to kill, knowing its contents, contrary to s 31(1) of the Crimes Act 1900 (NSW). The offence was committed against his former domestic partner, with whom he shared four children, and was extremely menacing and explicit as to the threat of killing. The applicant was sentenced in the District Court to imprisonment for a non-parole period of 2 years and 10 months and a balance of term of 1 year and 8 months. At the time of offending and sentencing, the applicant was serving a sentence of imprisonment for manslaughter of 8 years and 4 months. The effective overall sentence for both offences yielded a non-parole period of 7 years and 6 months and a total sentence of 9 years and 2 months imprisonment, representing a non-parole ratio of 82%.

When sentencing the applicant under the heading of objective seriousness, Hock DCJ noted that it was an “aggravating factor that the offence was committed in custody while serving a sentence for an extremely violent crime” and as such, there was an increased need for general deterrence. Her Honour also referred to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and accepted that the sentence should…

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 v The King

Details

AGLC: Fuller v The King [2023] NSWCCA 282
Case: [2023] NSWCCA 282
Decision Date: 13 November 2023

CaseChat Overview and Summary

The appellant, Fuller, was convicted of an offence and sentenced by a lower court. Fuller appealed the sentence to the High Court, arguing that the sentencing judge had erroneously considered the appellant's criminal history as an aggravating factor, which rendered the offending more objectively serious. The appeal hinged on whether this consideration constituted a legal error that warranted the intervention of the High Court.

The court examined whether the sentencing judge's remarks should be read as a whole to determine if there was an error in considering the appellant's criminal history as an aggravating factor. The court held that the remarks, when read in their entirety, did not establish that the sentencing judge had erred. The court found that the sentence was not manifestly excessive, even though the non-parole period was beyond the statutory ratio, and it was not unreasonable or plainly unjust.

The High Court dismissed the appeal, affirming the original sentence. The court concluded that there was no legal error in the sentencing process, and the sentence was within the bounds of judicial discretion. The appeal was therefore dismissed, and the original sentence stood.

Orders