Fuller v The Queen - [2021] NTCCA 1

CITATION:Fuller v The Queen [2021] NTCCA 1

PARTIES: FULLER, John Clifford

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No CA 17 of 2020 (22000363)
DELIVERED:  19 February 2021
HEARING DATE:  19 February 2021
JUDGMENT OF:  Grant CJ, Southwood & Brownhill JJ

REPRESENTATION:
Counsel:
Appellant:S Cox QC with M Jehne
RespondentD Dalrymple with N Loudon
Solicitors:
Appellant:Northern Territory Legal Aid Commission
RespondentOffice of the Director of Public Prosecutions
Judgment category classification: C
Number of pages: 11

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Fuller v The Queen [2021] NTCCA 1

No CA 17 of 2021 (22000363)
BETWEEN:

JOHN CLIFFORD FULLER
Appellant

AND:

THE QUEEN
Respondent

CORAM: GRANT CJ, SOUTHWOOD & BROWNHILL JJ
EDITED REASONS FOR JUDGMENT
(Delivered ex tempore on 19 February 2021)
THE COURT:

On 18 September 2020, the appellant was sentenced to imprisonment for three years and nine months for the crime of aggravated robbery and seven months’ imprisonment for the crime of supplying less than a commercial quantity of cannabis. Three months of the seven month sentence was ordered to be served cumulatively with the sentence of three years and nine months, giving a total sentence of four years. The total sentence of imprisonment was backdated to 5 January 2020 to be suspended on conditions after the appellant had served 18 months in prison.
The appellant has appealed against the sentence imposed on him for the count of aggravated robbery on the following grounds:
(a)the learned sentencing judge did not properly take into account the fact that the appellant gave sworn evidence that he was prepared to identify and give evidence against two co-offenders who had not been charged; and
(b)in all the circumstances of the offence and the appellant, the total effective sentence was manifestly excessive.
The facts of the offending
The facts of the offending are as follows.
Sometime before 5:30 pm on 10 December 2019, the appellant and his co-offenders, CK and DH, formed the common intention to unlawfully enter a residence to take three pounds of cannabis and for the appellant to act as backup to achieve that purpose. TH and the victim, SM, lived at the address. The sentencing judge accepted that initially the appellant did not intend to rob the victim.
On that day, the appellant, CK and DH drove to the victim’s home. They arrived at 5:30 pm. TH and SM were both at home at the time. The three offenders entered the property through the front gate and went around to the back veranda where AH was sitting on a chair. DH asked if SM was at home.
The appellant and CK went into the house. CK searched a bedroom looking for SM and damaged a door in the process. SM heard noise and came out of his room. He saw the appellant and CK in the hallway and formed the impression from CK’s…

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 Queen

Details

AGLC: Fuller v The Queen [2021] NTCCA 1
Case: [2021] NTCCA 1
Decision Date: 19 February 2021

CaseChat Overview and Summary

The appellant, Fuller, appealed to the Supreme Court of the Northern Territory against the sentence imposed for aggravated robbery. The appeal was brought before Grant CJ, Southwood and Brownhill JJ. The grounds of appeal concerned whether the sentencing judge had adequately considered the appellant's offer to identify and give evidence against uncharged co-offenders, and whether the total effective sentence was manifestly excessive in all the circumstances.

The court was required to determine two primary legal issues. Firstly, whether the sentencing judge had properly taken into account the appellant's sworn evidence indicating his willingness to cooperate with authorities by identifying and testifying against two co-offenders who had not been charged. Secondly, the court had to assess whether, in light of the specific facts of the aggravated robbery and the appellant's personal circumstances, the imposed sentence was demonstrably too severe.

The court considered the facts of the aggravated robbery, which involved the appellant and two co-offenders unlawfully entering a residence with the common intention to steal cannabis. While the sentencing judge accepted the appellant initially did not intend to rob the victim, the events escalated when the appellant and a co-offender entered the victim's room. The appellant disarmed the victim of a broom handle and demanded to know the location of the cannabis, shaking the victim by his shirt. The appellant then took the cannabis. The court noted that the appellant received a portion of the stolen cannabis, which he subsequently supplied to others. The court's reasoning would involve weighing the appellant's offer of assistance against the seriousness of the offence and the need for general and specific deterrence. The court would also consider the principles of sentencing, including proportionality and the impact of the appellant's cooperation on the overall justice of the case.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has appealed against the sentence imposed on him for the count of aggravated robbery on the following grounds:(a)the learned sentencing judge did not properly take into account the fact that the appellant gave sworn evidence that he was prepared to identify and give evidence against two co-offenders who had not been charged; and (b)in all the circumstances of the offence and the appellant, the total effective sentence was manifestly excessive. The facts of the offending The facts of the offending are as follows. Sometime before 5:30 pm on 10 December 2019, the appellant and his co-offenders, CK and DH, formed the common intention to unlawfully enter a residence to take three pounds of cannabis and for the appellant to act as backup to achieve that purpose. TH and the victim, SM, lived at the address. The sentencing judge accepted that initially the appellant did not intend to rob the victim. On that day, the appellant, CK and DH drove to the victim’s home. They arrived at 5:30 pm. TH and SM were both at home at the time. The three offenders entered the property through the front gate and went around to the back veranda where AH was sitting on a chair. DH asked if SM was at home. The appellant and CK went into the house. CK searched a bedroom looking for SM and damaged a door in the process. SM heard noise and came out of his room. He saw the appellant and CK in the hallway and formed the impression from CK’s appearance and behaviour that he was under the influence of the drug ice. CK said to SM, “You’re a cunt. You fucken stole from me. You’re a dog cunt”. At this time CK was acting irrationally. He was swinging his arms in a threatening manner. SM was afraid. He went back into his room, closed the door and put his body up against the door in an attempt to stop the two offenders from getting in. CK used bodily force to break the door off its hinges and the appellant and CK forced their way into SM’s room. SM grabbed a metal broom handle, which was about a metre long, to try to defend himself. CK again shouted at him, “You fucken dog cunt. You stole from me”. SM told CK he did not know what he was talking about. CK lunged towards SM, who tried to defend himself. SM hit CK with the broom handle three times. The appellant took the broom handle off SM and threw it to the ground. The appellant grabbed SM by his shirt near to his neck and shook him. He said to SM, “Tell me where it is”. SM felt obliged to comply with the appellant’s request. He said to the appellant, “It’s over there” and pointed to a bag of cannabis on the floor. The appellant let go of SM and grabbed the bag containing 227 grams of cannabis, which is less than a commercial quantity, and the appellant and CK walked out of the house. CK also took a small amount of cannabis from the table on the back veranda as he was leaving. The appellant received 84 grams of cannabis as payment for his part in the robbery. He supplied that cannabis to other people in the Darwin area. That supply was also in an amount less than a commercial quantity of the drug.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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