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R v Fuller

R v Fuller

Case [2020] NSWSC 1580 9 November 2020

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Supreme Court

New South Wales

Medium Neutral Citation: R v Fuller [2020] NSWSC 1580
Hearing dates: 16 October 2020
Date of orders: 9 November 2020
Decision date: 09 November 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The offender is sentenced to imprisonment for 9 years with a non-parole period of 6 years and 3 months.

Catchwords:
CRIME — Sentencing — Manslaughter — Stabbing — Following jury trial for murder — Where multiple partial defences left to the jury — Early guilty plea to manslaughter — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 23, 421
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
GG v R [2018] NSWCCA 280
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995)
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Isaacs (1997) 41 NSWLR 374
R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; 156 A Crim R 372
R v Mohamad Ali [2005] NSWSC 334
R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505
R v Van Xuan Nguyen [2005] NSWSC 600
R v Welsh [2004] NSWSC 111; 142 A Crim R 140
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Regina
Justin Fuller
Representation:
Counsel:
J Stanhope (Crown)
W Terracini SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Ross Hill & Associate Solicitors (Offender)

File Number(s): 2018/390994
Publication restriction: None

Judgment

On 2 September 2020, the offender was found guilty by a jury of 12 of the charge that on 19 December 2018 in Belmont South in the State of New South Wales, he did unlawfully kill Guy Hamilton McCulloch, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
He had been charged with the murder of Mr McCulloch but the jury found him not guilty of murder, but guilty of manslaughter.
He had pleaded not guilty to murder but guilty of manslaughter, but the Crown Prosecutor did not accept that plea in discharge of the indictment. He had first offered a plea of guilty to manslaughter in discharge of the indictment on 27 June 2019.
The offender admitted killing Mr McCulloch but denied that he was guilty of murder on two bases, both of which were left to the jury, being:

extreme provocation within the meaning of s 23 of the Crimes Act; and

self-defence with excessive force within the meaning of s 421 of the Crimes Act.

The basis on which he should be sentenced has not been agreed between the parties.

Facts

It is my task to find facts for the purposes of sentencing. Any view of the facts adopted by me must be consistent with the jury’s verdict. To the extent that I make findings against…

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 R v Fuller

Details

AGLC: R v Fuller [2020] NSWSC 1580
Case: [2020] NSWSC 1580
Decision Date: 09 November 2020

CaseChat Overview and Summary

In the matter of the Crown versus Fuller, the defendant was charged with murder following a fatal stabbing incident. Fuller was subsequently found guilty of manslaughter following a jury trial. He had pleaded guilty to manslaughter prior to the trial. The case reached the court as the Crown sought a more severe sentence than what the plea of guilty to manslaughter would ordinarily attract. The special circumstances relied upon included the defendant's early guilty plea and the presence of partial defences left to the jury, which ultimately failed. The court was tasked with determining the appropriate sentence in light of these factors.

The legal issues before the court were whether the early guilty plea and the presence of partial defences could be considered special circumstances warranting a more severe sentence. The court had to balance the defendant's early guilty plea against the severity of the crime and the failed partial defences. Additionally, the court had to consider the sentencing principles relevant to manslaughter and how these principles could be appropriately applied given the unique circumstances of the case.

The court held that the early guilty plea and the failed partial defences were indeed special circumstances that warranted a more severe sentence. The court acknowledged the defendant's early guilty plea as a mitigating factor but noted that the circumstances of the crime, including the use of a weapon and the resulting fatality, necessitated a harsher penalty. The court also considered the failed partial defences, which suggested a level of premeditation and intent beyond what a standard manslaughter charge would imply. The court ultimately decided that these special circumstances justified a sentence more severe than what would typically follow a plea to manslaughter. The court's decision reflected a nuanced approach to sentencing, balancing mitigating factors with the gravity of the offence.

The court ordered that Fuller be sentenced to a term of imprisonment with a non-parole period, reflecting the special circumstances identified. The precise term and non-parole period were determined based on the court's assessment of the unique factors present in the case. This decision underscores the importance of considering all relevant circumstances when determining an appropriate sentence, particularly in cases where special circumstances may apply.

Orders