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Court of Criminal Appeal 19 September 2022

Fuller v R

[2022] NSWCCA 203

Homicide
SENTENCING MURDER CHARGE PLEA NOT ACCEPTED BY CROWN MANSLAUGHTER VERDICT CRIMES (SENTENCING PROCEDURE) ACT S 25E MANDATORY DISCOUNT

Citation: Fuller v R [2022] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 19 September 2022
Judges: Brereton JA; Adamson J; N Adams J (primary reasons)

Background

The applicant stabbed and killed a man who was seated in his vehicle at Belmont South near Newcastle on 19 December 2018. He faced a murder charge at trial before Cavanagh J and a jury, but pleaded guilty to the alternative charge of manslaughter. He had also offered that plea at an earlier Local Court case conference. The Crown did not accept the plea on either occasion, and the trial proceeded.

The applicant raised two partial defences at trial: extreme provocation and excessive self-defence. The jury acquitted him of murder but returned a guilty verdict on manslaughter. Cavanagh J sentenced him to nine years' imprisonment with a non-parole period of six years and three months, applying a 20% discount to reflect the plea offer.

The applicant sought leave to appeal against sentence on three grounds: that the discount applied was too low, that the finding of objective seriousness was too high, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying a 20% discount rather than the mandatory 25% discount under s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the applicant's plea offer at the Local Court case conference.
  • Whether the sentencing judge erred in characterising the objective seriousness of the manslaughter as "well above mid-range" and "more in the higher range."
  • Whether the sentence imposed was manifestly excessive, having regard to the finding of objective seriousness and the applicant's subjective circumstances.

Decision

Ground 1: Plea Discount

The Crown conceded, and the Court agreed, that the mandatory 25% discount under s 25E(3)(a) of the Crimes (Sentencing Procedure) Act applied. The applicant had offered a plea of guilty to manslaughter at the Local Court case conference and maintained that offer at trial. The error in applying only a 20% discount was not one that affected the general exercise of the sentencing discretion, so the appropriate remedy was to apply the correct discount to the undiscounted sentence indicated by the primary judge, rather than to resentence afresh.

Ground 2: Objective Seriousness

The Court found no error in the sentencing judge's assessment. The facts found at sentence were consistent with manslaughter on either basis available on the evidence, namely extreme provocation or excessive self-defence, and the finding of objective seriousness was open on either. Critically, the Court confirmed that a sentencing judge's duty is to find the facts consistent with the jury's verdict, not to determine the particular path or reasoning by which the jury arrived at it. Adamson J noted that because multiple jurors may reason differently yet reach the same verdict, the sentencing judge should not attempt to ascertain which form of manslaughter the jury found proven; rather, the judge must find facts consistent with that verdict and sentence accordingly.

On a related procedural point, Brereton JA disagreed with any suggestion that sentencing judges should avoid identifying where a manslaughter offence falls on the range of seriousness. His Honour considered that transparency and consistency in sentencing are enhanced by such an assessment. Brereton JA also added that a challenge to a finding of objective seriousness is not subject to the House v The King restraints that govern appellate review of discretionary decisions: a finding of objective seriousness is a conclusion of fact, not a discretionary exercise, and the appellate test is whether the finding is correct.

Ground 3: Manifest Excess

Given that the objective seriousness assessment was upheld, the Court assessed whether a sentence of eight years and four months with a non-parole period of five years and eight months (reflecting the corrected 25% discount) was unreasonable or plainly unjust. The Court was not satisfied that it was, and dismissed this ground.

Orders Made

  • Leave to appeal granted; appeal allowed in part.
  • The sentence imposed by Cavanagh J on 9 November 2020 is quashed.
  • In substitution, the applicant is sentenced to imprisonment for 8 years and 4 months, with a non-parole period of 5 years and 8 months commencing 19 December 2018 and expiring 18 August 2024.

Key Takeaways

  • Under s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount is mandatory where an accused offers a plea of guilty at a Local Court case conference and maintains that offer at trial, regardless of whether the Crown accepts the plea.
  • A sentencing judge's duty after a jury verdict is to find the facts material to sentencing that are consistent with that verdict. It is not the judge's task to identify the particular reasoning process or legal basis the jury applied to reach its conclusion.
  • Brereton JA confirmed that a finding of objective seriousness is a conclusion of fact, not a discretionary decision, and is therefore reviewed on appeal on a correctness standard rather than the House v The King error standard.
  • Where a sentencing error does not affect the underlying discretionary exercise, the Court of Criminal Appeal may correct it by applying the proper legal rule to the undiscounted sentence indicated by the primary judge, without conducting a full resentencing.
  • Sentencing statistics and comparable cases remain tools available to an appellate court when assessing manifest excess, but they are not determinative, particularly where the primary seriousness assessment is upheld on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23, 24, 421
- Crimes Amendment (Provocation) Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A-25F (especially s 25E), s 54D
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- AB v The Queen (1999) 198 CLR 11
- Ahmad v R [2021] NSWCCA 30
- Black v R [2022] NSWCCA 17
- Cheung v The Queen (2001) 209 CLR 1
- Davidson v R [2022] NSWCCA 153
- House v The King (1936) 55 CLR 499
- Ke v R [2021] NSWCCA 177
- Kentwell v The Queen (2014) 252 CLR 601
- Lane v R [2013] NSWCCA 317
- Lehn v R (2016) 93 NSWLR 205
- Magro v R [2020] NSWCCA 25
- Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
- Obeid v R (2017) 96 NSWLR 155
- Paterson v R [2021] NSWCCA 273
- R v Alexander (1994) 78 A Crim R 141
- R v Bolt [2001] NSWCCA 487
- R v Fuller [2020] NSWSC 1580
- R v Isaacs (1997) 41 NSWLR 374
- R v Loveridge [2014] NSWCCA 120
- Refaieh v R [2018] NSWCCA 72