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Supreme Court 14 June 2016

R v Fuller

[2016] NSWSC 815

Homicide
CRIMINAL LAW MURDER EARLY GUILTY PLEA ADVERSE PSYCHOLOGIST’S REPORT YOUTH OF OFFENDER SENTENCE IMPOSED

Citation: R v Fuller [2016] NSWSC 815
Court: Supreme Court of New South Wales
Date: 14 June 2016
Judge(s): Rothman J

Background

The offender, aged 18 years and two months at the time of the offence, pleaded guilty to the murder of a 33-year-old man at Young, New South Wales, on 29 August 2013. The killing arose from a dispute over $600 allegedly owed after the deceased had sold stolen tools on the offender's behalf and failed to pay. A secondary motive appeared to be the offender's fear that the deceased would expose his involvement in a robbery.

The offender lured the deceased to a remote location by accessing a mutual acquaintance's Facebook account, pretending to be that person, and deceiving the deceased about who he was meeting. Once the deceased arrived, the offender punched him twice, then produced a tomahawk from behind his back and repeatedly struck the deceased with its blunt end, killing him.

The offender was serving a sentence in Queensland at the time these charges were laid, and was extradited to New South Wales in December 2014. He also faced eight additional serious offences listed on a Form 1 document, which the court took into account when assessing sentence without imposing separate penalties.

  • What sentence, including non-parole period, was appropriate for a guilty plea to murder in these circumstances?
  • How should the offender's youth (aged 18 at the time) be balanced against the seriousness of the offence and a psychological profile consistent with psychopathy?
  • What weight should be given to the early guilty plea, the offender's deprived childhood, and his lack of genuine remorse?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
  • How the totality principle applied given the offender's concurrent Queensland sentences.

Decision

Rothman J described the offence as serious even by the standards of murder. The method of luring the deceased through deception demonstrated premeditation, and the attack itself was frenzied and involved gratuitous violence beyond what would achieve the fatal result. The offender's use of a weapon, while not double-counted, was factored into the overall gravity of the offence.

The psychological report, prepared on behalf of the offender by Ms Robilliard, was a significant feature of the sentencing exercise. The offender scored strongly on the Hare Psychopathy Checklist and presented with a "severely disturbed and distorted self-concept" in relation to his violent behaviour. He showed no genuine remorse, and any expression of regret was focused on the consequences for himself. The report also noted that his psychopathic profile could prevent access to certain treatment programs, as participation might sharpen his capacity to manipulate rather than reduce his risk.

Despite these adverse findings, the offender's youth was treated as a most significant mitigating factor. Rothman J noted that the offender, while legally an adult, was "a boy, only just 18 and quite immature." His deprived and violent early childhood, his Aboriginal background, his ADHD and Oppositional Defiant Disorder diagnoses, and the early guilty plea were all taken into account. However, the court did not allow the full 25% discount for the plea, reflecting the overall seriousness of the circumstances.

Rothman J found no special circumstances warranting an extended parole period. Starting from a baseline sentence of 32 years, the court arrived at a total sentence of 24.5 years, comprising a non-parole period of 17 years and a balance of term of 7.5 years. The totality principle was applied to account for the relationship between this sentence and the earlier Queensland sentences.

Orders Made

  • The offender was convicted of the murder of Corey Mark Power on 29 August 2013 at Young, New South Wales.
  • Sentenced to a non-parole period of 17 years' imprisonment, commencing 4 March 2015 and concluding 3 March 2032.
  • Balance of term of 7.5 years, concluding 3 September 2039.
  • First eligible for release on parole on 3 March 2032.
  • Eight Form 1 offences taken into account in fixing the sentence.

Key Takeaways

  • A psychological profile consistent with psychopathy does not automatically attract a more severe sentence; rather, it must be balanced against other factors including youth, background, and guilty plea, with the court noting that continuing detention orders provide some protection if treatment proves unavailable or unsuccessful.
  • Youth at the time of the offence, even where the offender has just crossed the legal threshold of adulthood, remains a most significant mitigating factor in murder sentencing, consistent with Rothman J's earlier remarks in BP v R [2010] NSWCCA 159.
  • Premeditation, deception in the execution of the offence, and gratuitous violence beyond what was necessary each independently aggravated the seriousness of this murder.
  • An early guilty plea attracted a discount, though not the full 25%, where the overall circumstances and the offender's apparent lack of genuine remorse qualified the weight the sentencing court placed on the concession.
  • Under the totality principle, a New South Wales murder sentence may be structured to account for a prior interstate sentence being served concurrently, with the non-parole period commencing at the expiry of the earlier sentence's non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 (discount for guilty plea)

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