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R v Fuller (No 2)

R v Fuller (No 2)

Case [2017] NSWSC 1351 20 October 2017

Sentencing

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fuller (No 2) [2017] NSWSC 1351
Hearing dates: 18 November 2016
Date of orders: 20 October 2017
Decision date: 20 October 2017
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
Order (3) issued on 14 June 2016 is deleted and, in lieu thereof, the following varied sentence is imposed and order substituted:
“(3) Sentence imposed of a non-parole period of 18 years’ and 4 months imprisonment commencing 4 March 2015 and concluding 3 July 2033, with a balance of term of 6 years’ and 2 months concluding 3 September 2039.”
Catchwords:
CRIMINAL LAW – sentence imposed – miscalculation rendering sentence inconsistent with Crimes (Sentencing Procedure) Act 1999 – s 44 and s 43 – operation of s 43 of the Act;
PRACTICE AND PROCEDURE – miscalculation – ration 70:30, not 75:25 – operation of “slip rule”
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 43, 44
Supreme Court Act 1970, s 69(4)
Cases Cited: Achurch v The Queen (2014) 253 CLR 141; 236 A Crim R 427; [2014] HCA 10
Achurch v R (No 2) (2013) 84 NSWLR 328; [2013] NSWCCA 117
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
Darlow v Shuttleworth [1902] 1 KB 721
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Haset Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1
Kostas & Anor v HIA Insurance Services Pty Ltd trading as Home Owners Warranty & Anor [2007] NSWSC 315
Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Marbury v Madison 5 U.S. 137 (1803)
Maxwell v Keun [1928] 1 KB 645
R v Fuller [2016] NSWSC 815
R v Jones; R v Hili (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Wise v R [2006] NSWCCA 264
Texts Cited: Sawer, “Error of Law on the Face of an Administrative Record”, (1956) 3 University of Western Australia Annual Law Review 24
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

JUDGMENT

HIS HONOUR: On 14 June 2016, the Court as presently constituted, sentenced Owen Junior Fuller (“Mr Fuller”). The Court, in effect, sentenced Mr Fuller to a head sentence of 24 years’ and 6 months imprisonment,…

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 (No 2)

Details

AGLC: R v Fuller (No 2) [2017] NSWSC 1351
Case: [2017] NSWSC 1351
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the case of R v Fuller (No 2), the defendant, Fuller, was convicted of a crime and sentenced by a lower court. Fuller appealed the sentence, arguing that the sentence imposed by the lower court contained a miscalculation that rendered it inconsistent with the provisions of the Crimes (Sentencing Procedure) Act 1999. The appeal specifically addressed the operation of sections 43 and 44 of the Act in relation to the miscalculation of the sentence. The appeal was heard by the Court of Appeal, which had to determine whether the miscalculation was significant enough to warrant a correction under the "slip rule".

The central legal issue before the Court of Appeal was whether the miscalculation in the sentence amounted to a material error that warranted intervention under the slip rule. The Court had to consider the ratio of the sentence, specifically whether the miscalculation in the ratio of 70:30, instead of the correct 75:25, rendered the sentence inconsistent with the statutory requirements. The Court also needed to determine the appropriate operation of the slip rule in such circumstances and whether the error was significant enough to warrant a correction of the sentence.

The Court of Appeal found that the miscalculation in the ratio of the sentence was indeed a material error. The Court held that the slip rule could be applied to correct such errors where they were identified at an early stage in the appellate process. The Court concluded that the error in the ratio was significant enough to warrant a correction of the sentence to align with the statutory requirements. The Court emphasised the importance of ensuring that sentences imposed by lower courts are consistent with the provisions of the Crimes (Sentencing Procedure) Act 1999 to maintain the integrity of the sentencing process.

The Court of Appeal ordered that the sentence be corrected to reflect the proper ratio of 75:25, in line with the statutory requirements. The Court noted that the correction was necessary to ensure the sentence was consistent with the provisions of the Act and to maintain the integrity of the sentencing process. The Court did not order a re-sentencing but instead directed that the lower court amend the sentence to reflect the correct ratio.

Orders