R v Fuller

Case [2013] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FULLER

[2013] SASCFC 85

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Nicholson)

16 August 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE

Appeal against sentence.  The defendant and appellant, Christopher Martin Fuller, was convicted of the offence of trafficking in a controlled drug and sentenced to imprisonment for five years.  The defendant pleaded guilty to one offence of unlawful possession of a dangerous article and one offence of possession of a prohibited weapon, and was sentenced to a term of imprisonment of four months.  The defendant was jointly charged with three counts of unlawful sexual intercourse with a child under the age of 14 years.  The offences were committed with a child aged eight years.  The defendant pleaded guilty to the offences of unlawful sexual intercourse and was sentenced to a term of imprisonment of seven years and four months. The defendant’s co-offender was sentenced to a term of imprisonment of six years and eight months in respect of the offences of unlawful sexual intercourse.  The defendant pleaded guilty to the offence of aggravated possession of child pornography and was sentenced to a term of imprisonment of two years and four months.  All terms of imprisonment were ordered to be served cumulatively, leading to a total head sentence of 15 years imprisonment.  The head sentence was reduced to a period of 13 years and eight months on account of the principle of totality and time already spent in custody.  No reduction was made as to any particular sentence.  At the time of sentencing, the defendant was serving an earlier sentence of 18 months imprisonment, with a non-parole period of 12 months.  The Judge extended the existing non-parole period of 12 months to a period of nine years and six months.

Whether the sentence of five years for trafficking in a controlled drug was manifestly excessive.  Whether the Judge erred in finding that the major portion of the drugs was for personal use.

Held per Gray J (David and Nicholson JJ concurring):  The sentence of five years imprisonment was within the discretion…

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AGLC
R v Fuller [2013] SASCFC 85
Case
[2013] SASCFC 85
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of Christopher Martin Fuller, who had been convicted of multiple offences including trafficking in a controlled drug, unlawful sexual intercourse with a child under 14, aggravated possession of child pornography, unlawful possession of a dangerous article, and possession of a prohibited weapon. The sentencing judge had imposed cumulative sentences for these offences, resulting in a head sentence of 15 years, which was then reduced to 13 years and eight months due to the principle of totality and time already served. The non-parole period was extended to nine years and six months. The appeal was heard by Gray, David, and Nicholson JJ.

The primary legal issues before the court were whether the sentencing judge had erred in the imposition of individual sentences and the application of the principle of totality, and whether the non-parole period was appropriate. Specifically, the court considered the parity between the sentence imposed on Fuller and that of his co-offender for the sexual offences, the impact of Fuller's guilty pleas, and the overall totality of the sentences.

Gray J, with whom David and Nicholson JJ agreed, allowed the appeal in part. While the total head sentence of 13 years and eight months was confirmed, the individual sentences were adjusted to better reflect the principle of totality and time spent in custody. The sentence for drug trafficking was reduced from five years to four years, the sentence for the sexual offences was reduced from seven years and four months to seven years and two months, and the sentence for child pornography possession was reduced from two years and four months to two years and two months. The sentence for the weapon and article possession offences remained at four months. The extended non-parole period of nine years and six months was confirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
It is necessary, however, to adjust the Record of Proceedings to reflect an appropriate allocation of the reduction on account of the principal of totality and time spent in custody to the particular sentences imposed on the defendant. In my view, this adjustment may appropriately be reflected in the following manner. The sentence imposed in respect of the offence of trafficking in a controlled drug should be reduced from a term of five years to a term of four years. The sentence imposed in respect of the three counts of unlawful sexual intercourse should be reduced from a term of seven years and four months to a term of seven years and two months. The sentence imposed in respect of the offence of aggravated possession of child pornography should be reduced from two years and four months to a term of two years and two months. Conclusion The appeal should be allowed. The total period to be served in prison as determined by the sentencing Judge of 13 years and eight months for the present offending is confirmed. However, the individual sentences leading to that total term are set aside and, in lieu, the following sentences are imposed:-The defendant is sentenced to a term of imprisonment of four years in respect of the offence of trafficking in a controlled drug;-The defendant is sentenced to the one term of imprisonment of seven years and two months in respect of the three offences of unlawful sexual intercourse with a child under the age of 14 years;-The defendant is sentenced to a term of imprisonment of two years and two months in respect of the offence of possession of aggravated child pornography;-The defendant is sentenced to a term of imprisonment of four months in respect of the offence of possession of a prohibited weapon and the offence of possession of a dangerous article;-The defendant is convicted of the offence of failing to store ammunition separately from firearms but no further penalty is imposed.Each of the above sentences are to be served cumulatively on each other and on the sentence of 18 months imprisonment imposed by Muecke DCJ on 20 September 2012. The extended non-parole period of nine years and six months fixed by the Judge is confirmed. The non-parole period is taken to have commenced on 18 May 2012. DAVID J: I would dismiss the appeal. I agree with the reasons of Gray J and the orders he proposes. NICHOLSON J: I would dismiss the appeal. I agree with the reasons of Gray J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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