Citation: R v Fuller [2020] NSWSC 1580
Court: Supreme Court of New South Wales
Date: 9 November 2020
Judge(s): Cavanagh J
Background
The offender was charged with the murder of Guy Hamilton McCulloch, who was stabbed on 19 December 2018 at Belmont South. The offender admitted the killing but denied murder on two bases: extreme provocation under s 23 of the Crimes Act 1900 (NSW), and excessive self-defence under s 421. A jury acquitted him of murder and convicted him of manslaughter.
The offender had first offered a plea of guilty to manslaughter in June 2019, some fourteen months before trial. The Crown did not accept that plea in discharge of the indictment, and the matter proceeded to trial.
The killing arose against a backdrop of years of family conflict. The offender was the half-brother of the deceased's long-term partner. The relationship between the families had deteriorated over many years and involved threats, property damage, and confrontations on multiple occasions. On the day of the killing, the deceased had twice deliberately reversed his vehicle into the offender's stationary car before the fatal stabbing occurred approximately fifteen minutes later.
Legal Issues
- What facts should be found by the sentencing judge, consistent with the jury's manslaughter verdict, where different partial defences were left to the jury and the basis for the verdict could not be determined with certainty?
- What weight should be given to an early guilty plea to manslaughter where the Crown did not accept that plea and proceeded to trial on murder?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What sentence appropriately reflected the objective seriousness of the offending balanced against the offender's subjective circumstances and the purposes of sentencing, including general deterrence, denunciation, retribution, and rehabilitation?
Decision
Cavanagh J found facts for sentencing consistent with the jury's verdict, applying the criminal standard of proof for any findings adverse to the offender. The judge accepted that the offender returned to the scene to confront the deceased's partner and to ask the deceased to stop driving her past their home, and that the stabbing followed a series of confrontational events on the day, including the deceased twice ramming the offender's stationary vehicle with his own car.
Because both partial defences had been left to the jury and different jurors may have accepted different aspects of the evidence, the judge could not determine the precise basis for the manslaughter verdict. The judge proceeded on the basis that the matter was, at minimum, serious manslaughter, while also acknowledging the long history of conflict and provocation leading up to the offence.
The judge found that special circumstances existed, justifying a longer parole period than the statutory default ratio. In applying the sentencing principles from Veen v The Queen (No 2), the judge undertook an intuitive synthesis of all relevant factors, treating general deterrence and denunciation as important considerations while also crediting the offender's early guilty plea.
The offender's early offer to plead guilty to manslaughter, made in June 2019 and well before the trial commenced, attracted a 20% discount on the notional sentence. The judge arrived at a notional sentence of 11 years and 3 months, reduced to 9 years following that discount.
Orders Made
- A total sentence of 9 years' imprisonment was imposed for manslaughter.
- Non-parole period: 6 years and 3 months, commencing 19 December 2018, with eligibility for parole on 18 March 2025.
- Balance of term: 2 years and 9 months.
- The offender's solicitor was directed to advise the offender of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), s 25C, given that manslaughter is a "serious violence offence" within the meaning of that Act.
Key Takeaways
- Where a jury returns a manslaughter verdict after multiple partial defences are left to them, the sentencing judge cannot assume which defence, or combination of defences, formed the basis of the verdict; the judge must find facts independently, consistent with the verdict, applying the criminal standard for adverse findings.
- An early guilty plea to manslaughter retains its full mitigatory value even where the Crown refuses to accept it in discharge of a murder indictment and the matter proceeds to trial, provided the plea was entered genuinely at an early stage.
- Special circumstances justifying a departure from the standard non-parole period ratio may be found where longer rehabilitation and supervision on parole is considered appropriate in the particular circumstances of the offender.
- Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a court sentencing for a "serious violence offence" (which includes manslaughter) is required to warn the offender of the existence and potential application of that Act.
- In applying the sentencing principles confirmed in Veen v The Queen (No 2), the purposes of general deterrence, denunciation, retribution, and rehabilitation overlap and must be weighed together through an intuitive synthesis rather than treated as separate, sequential considerations.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18 (manslaughter), 23 (extreme provocation), 421 (self-defence: excessive force)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Isaacs (1997) 41 NSWLR 374
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995)
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505
- R v Welsh [2004] NSWSC 111; 142 A Crim R 140
- R v Mohamad Ali [2005] NSWSC 334
- R v Van Xuan Nguyen [2005] NSWSC 600
- R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; 156 A Crim R 372
- GG v R [2018] NSWCCA 280