R v Fuller

[2016] NSWSC 815

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Fuller [2016] NSWSC 815

Hearing dates:

19 April 2016

Date of orders:

14 June 2016

Decision date:

14 June 2016

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Conviction recorded;

 

(2) Form 1 offences taken into account;

 (3) Sentence imposed of 24 and a half years’ imprisonment, commencing 4 March 2015 and concluding 3 September 2039, with a non-parole period of 17 years, concluding 3 March 2032.

Catchwords:

CRIMINAL LAW – murder – early guilty plea – adverse psychologist’s report – youth of offender – sentence imposed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

BP v R [2010] NSWCCA 159
R v Robinson [2000] NSWSC 972

Category:

Sentence

Parties:

Regina (Crown)
Owen Junior Fuller (Offender)

Representation:

Counsel:
M Pincott (Crown)
E Wilson SC (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2013/380993

REMARKS ON SENTENCE

1. HIS HONOUR: The offender, Owen Junior Fuller, has pleaded guilty to murder having killed Corey Mark Power. The Court must sentence him.

2. The offence of murder is the worst offence in the criminal calendar carrying a maximum sentence of life imprisonment and a standard non parole period of 20 years. The imposition of a life sentence is for those murders that are within the worst category of murder and in which the offence “is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition” of such a sentence.

Facts

3. There are agreed facts. Many deal with the deceased in a detail that, while relevant to background in order that the Court understand the issues, are unnecessary to repeat.

4. The deceased was 33 years of age at the time of his death, the offender was just over 18 years of age.

5. Briefly stated, on 7 August 2013, the offender and another broke into premises and stole a vehicle and some tools. The two co-offenders drove to an address and rang the deceased to leave the tools with him. The deceased told the offender and his accomplice in the robbery to burn the motor vehicle.

6. The deceased drove to Canberra from Young and sold the tools, then returning to Young. He was at the time, it seems, living in Canberra. There is a suggestion that the offender and his robbery accomplice were never paid for the tools and the deceased owed them $600.

7. From 25 August 2013, the deceased was staying in Young at the house of persons who were mutual acquaintances of the deceased and the offender. The deceased was consuming drugs.

8. In the meantime, the offender and his robbery accomplice were exchanging text messages expressing anger and resentment toward the deceased and his failure to pay the money said to be owed. The messages became increasingly hostile towards the deceased and disclosed increasing anger. Reference was made to assaulting the deceased. They then discussed with each other the fact that the deceased had returned to live in Young.

9. At 3.57am on 29 August 2013, the deceased sent two messages to the Facebook account of another female friendly with each of the deceased and the offender. The offender, who had previously been in a relationship with this woman, gained access to the account. The offender knew the password.

10. The woman was absent from Young on 29 August 2013 and had been for some two weeks or more. By a series of messages, the offender, pretending to be the Facebook account holder, lured the deceased to a location (the Weir), where he assaulted the deceased.

11. The offender had sought unsuccessfully to contact the robbery accomplice but met the deceased alone. According to the accused’s record of interview, the murder occurred as follows.

12. The deceased walked towards the offender, the offender punched him at which point the deceased fell to the ground. The deceased got to his feet and the offender punched him again. At that point the deceased did not get to his feet and the offender considered the deceased may have been “knocked out or something”. The offender had a tomahawk down his back, pulled it out and repeatedly hit the deceased with the blunt end.

13. The attack with the blunt end of the tomahawk killed the deceased.

14. The offender told police that he was not “even angry” with the deceased. It seems if there were motive it was the failure to pay the $600 debt and a fear that the deceased was going to disclose the robbery for which the offender may be imprisoned. The offender denied to police that there was a monetary motive and I accept that.

15. The offender did describe to the psychologist the feeling that he could not stop once he had started and that it was as if he was observing another inflicting the injuries.

16. The circumstances of the offence render it serious even by the standards of murder. Leaving aside those aspects inherent in murder itself, the offence involved some planning by the offender when he lured the deceased by deceiving him into thinking the deceased was not communicating with the offender. I accept that the method was opportunist resulting as it did from the unexpected access to Facebook messages. Nevertheless the intention to assault the deceased predated the event and the method utilised discloses premeditation.

17. Further, the offence involved gratuitous violence beyond that necessary to carry out the offence. The attack with a tomahawk is properly described as frenzied. The offence also involved the use of a weapon but I do not double count that factor and include it in assessing the offence itself only.

Subjective Circumstances

18. As earlier stated the offender had just turned 18 years of age at the time of the offence; he was 18 years and two months. His youth is a most significant factor.

19. I have the advantage of a psychologist’s assessment and report, it discloses some ameliorating background.

20. The offender emanates from Wagga Wagga and is of Aboriginal descent. His early childhood was violent as his father was physically abusive. His parents separated when the offender was four years of age.

21. Whether the offender was in late primary school, his mother handed custody to his father and stepmother because, according to the offender, his mother was unable to control the offender. The violence continued.

22. His education was interrupted by moves, his misbehaviour and the time spent in juvenile detention. The offender was diagnosed with Attention Deficit Disorder and hyperactivity (ADHD) and with Oppositional Defiant Disorder (ODD). ODD involves an increased risk of antisocial behaviour, impulse control problems, substance use, anxiety and depression.

23. The offender has a long criminal history which, for obvious reasons, was as a juvenile. He was first before the Courts at age ten. He has been a regular consumer of alcohol since he was 13. At that age he also commenced consuming ecstasy and cocaine having previously experimented with cannabis.

24. The offender is of average intelligence if not above average with an IQ of between 92 and 106. Ms Robilliard, the psychologist qualified on behalf of the offender, administered the Hare Psychopathy Checklist Revised (PCL-R) and expressed the opinion that the offender’s score strongly suggested psychopathy. Other tests suggested he was approaching significance in sadistic, aggressive attributes.

25. Ms Robilliard concluded that the offender “demonstrates a symptom pattern consistent with psychopathy”. This overlaps with personality disorders such as antisocial disorder and narcissistic traits. He displays a callous disregard for the integrity of others and a lack of remorse. He has “a severely disturbed and distorted self-concept with regard to his violent behaviour. His non-significant score on the aggressive/statistic scale also suggests that his psychopathic personality is well entrenched and overriding reality.”

26. Further she stated that the offender’s feeling of belonging in juvenile detention and also in adult custody indicated a degree of identification with the mores of the criminal subculture exemplified by a recent attack on a fellow inmate for a purpose he describes as “to ensure his own safety in the hierarchy of prison population”.

27. The offender’s psychopathic profile may prevent him from having access to certain treatments in the prison system, because it may exacerbate maladaptive behaviour by improving his ability to manipulate.

28. It seems his intelligence would enable him to acquire education and skills but he would be unable to interact freely until he can demonstrate improved self-control. This would probably require individual psychotherapy with an experienced professional.

29. The offender has acted out cruelly to animals and other persons from a young age. He does not display genuine remorse. Rather any expression of regret is focused on the effect on him.

30. The offender pleaded guilty at the earliest opportunity. At the time of his interview by police on these charges he was serving a sentence for other offences in Queensland and was extradited to New South Wales in December 2014. The Queensland sentences’ non-parole period expired on 4 March 2015 and the offender has been in New South Wales prisons since that date. I apply the principles of totality in regard to the relationship with the Queensland offences.

Conclusion

31. Sentencing is never an easy task. Sentencing in a situation such as this is difficult. There are a number of Form 1 offences which may be used only to increase the sentence for murder and not to impose sentences for the other offences listed. The increase in the sentence arises as a result of an assessment that there are good grounds for treating specific deterrence and retribution as more significant. There are eight Form 1 offences to which I have regard, each is serious and five involve the infliction of injury.

32. Murder, as already stated, is the most serious offence in the criminal calendar and the maximum sentence reflects the value our society places on human life.

33. As has been said on a number of occasions, even with an offence as serious as murder, one must assess the relative objective seriousness as compared to all murders. One does not however assess an offence by imagining a worse scenario.

34. This murder, while horrific, is not in the worst category. It does not involve an intention to kill, but, rather, an intention to inflict really serious injury. Nevertheless the circumstances of the limited premeditation and the frenzied attack put the offence objectively well above mid-range in seriousness.

35. The purposes of sentencing are: protection of society, deterrence both specific and general, retribution and reform. The Court synthesises these sometimes overlapping, sometimes competing, goals and seeks to derive a sentence that reflects each of them.

36. The seriousness of the offence must be assessed with the abusive and deprived early childhood, the plea of guilty, the protection necessary when dealing with a potential psychopath or someone with such traits and the youth of the offender. I reiterate my remarks in BP v R [2010] NSWCCA 159, including my agreement with the late Hodgson JA.

37. This offender was a boy, only just 18 and quite immature. Nevertheless the offence is not one that displays particular immaturity. He also has displayed some remorse and acceptance of responsibility with his plea of guilty. I intend to allow a discount for that plea but not to the full extent of 25% and I take that into account in fixing a sentence that is overall appropriate: s 22 Crimes (Sentencing Procedure) Act 1999 (NSW).

38. Like Adams J in R v Robinson [2000] NSWSC 972, were it not for the offender’s youth, the offence, the psychological assessment and the need for protection would warrant a severe sentence. There are significant risks of reoffending and a total disregard for authority and the norms of behaviour.

39. The risk in imposing a less severe sentence on a psychopath or someone showing such tendencies is ameliorated slightly by the existence of a regime including continuing detention orders, and the like, if psychotherapy is either unavailable or unsuccessful.

40. An extended period of parole is unnecessary and I do not find special circumstances. I start from a sentence of 32 years.

41. OWEN JUNIOR FULLER please rise:

You are convicted that on 28 August 2013 at Young in the State of New South Wales you did murder Corey Mark Power.

Taking into account the offences on the Form 1 you are sentenced for the offence of murder for which you are here convicted to a non-parole period of 17 years’ imprisonment, commencing 4 March 2015 and concluding on 3 March 2032 with a further term of seven and a half years concluding 3 September 2039.

You are first eligible for release on parole on 3 March 2032.

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Amendments

23 October 2017 - Cover sheet - typographical error in Decision: "Sentence imposed of 25 and a half years’ ..." amended to "Sentence imposed of 24 and a half years’"

20 June 2016 - Paragraph numbering corrected.

Decision last updated: 23 October 2017