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Court of Criminal Appeal 13 November 2023

Fuller v R

[2023] NSWCCA 282

Public order & justice offences
CRIMINAL LAW APPEALS APPEALS AGAINST SENTENCE REMARKS TO BE READ AS A WHOLE NO ERROR ESTABLISHED APPEAL DISMISSED CRIMINAL LAW

Citation: Fuller v R [2023] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 13 November 2023
Judge(s): Adamson JA, Wright J, Fagan J

Background

The applicant pleaded guilty in the Local Court to intentionally causing to be received a document threatening to kill, knowing its contents, contrary to s 31(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years imprisonment. The applicant sent the threatening document to his former domestic partner, with whom he shared four children, while he was in custody serving a sentence for manslaughter.

The District Court sentenced the applicant to a total term of 4 years and 6 months imprisonment, comprising a non-parole period of 2 years and 10 months and a balance of term of 1 year and 8 months. A 25% discount was applied for the guilty plea. The sentence was ordered to be served partly concurrently and partly consecutively with the existing manslaughter sentence of 8 years and 4 months.

The combined effect of the two sentences produced a total effective non-parole period of 7 years and 6 months and a total effective sentence of 9 years and 2 months, representing a non-parole ratio of approximately 82%. The statutory ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW) is two-thirds (approximately 67%). The applicant sought leave to appeal, arguing that the sentencing judge erred in her approach to his criminal history and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the applicant's criminal history as a statutory aggravating factor that increased the objective seriousness of the offending under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the imposition of a non-parole period that exceeded the statutory two-thirds ratio constituted error
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Criminal history as aggravating factor: The Court held that the remarks on sentence must be read as a whole and not construed in a pedantic or semantic fashion. When the sentencing judge described it as an aggravating factor that the offence was committed in custody while the applicant was serving time for a violent killing, she was conveying that those circumstances made the threats more terrifying to the recipient and therefore increased the objective seriousness of the threatening document offence itself. The Court found this was not an impermissible use of the applicant's criminal history as a statutory aggravating factor. The applicant's prior convictions were considered separately and at length in the context of his subjective circumstances, which was the proper approach.

Non-parole ratio and manifest excess: The Court acknowledged that the combined non-parole period of 82% significantly exceeded the statutory two-thirds ratio. However, exceeding that ratio is not of itself an error: s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the relevant authorities permit departure from the ratio where the sentencing judge expressly considers and justifies it. Hock DCJ gave express consideration to the total effective non-parole period and concluded that no lesser period would adequately reflect the purposes of sentencing under s 3A. The Court found that conclusion was open to her Honour and involved no error of principle.

Manifest excess: The Court found the sentence was not outside the range of available sentences, nor was it unjust or plainly unreasonable. The nature and circumstances of the offending, including the content of the threatening document and the existing domestic relationship between the applicant and the victim, supported the sentence imposed. While the total effective parole period was short, it reflected a principled determination of the appropriate sentence having regard to all relevant facts and sentencing principles. No latent error of principle was disclosed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Remarks on sentence must be read as a whole: a reference to the circumstances of an offender's custodial status and the nature of the offence for which he is imprisoned can legitimately inform the objective seriousness of a subsequent offence without constituting an impermissible use of criminal history as a statutory aggravating factor.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period that exceeds the statutory two-thirds ratio is not automatically erroneous, provided the sentencing judge expressly considers the ratio and articulates why a lesser non-parole period would not adequately reflect the purposes of sentencing.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a short total effective parole period, resulting from the interaction of concurrent and consecutive sentences, does not of itself reveal error where it flows from a principled sentencing exercise.
  • No error was established simply because the effective non-parole ratio across multiple sentences was high, where special circumstances findings had been made in relation to both sentences and the overall structure was explicable by reference to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The domestic relationship between the offender and the victim, the content of the threatening document, and the fact that the offence was committed from custody while serving a sentence for a violent crime were all legitimate considerations in assessing the objective seriousness of a threatening document offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 31(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(d), 56

Cases:
- Cherry v R [2017] NSWCCA 150
- Honeysett v R [2023] NSWCCA 138
- R v Nahlous [2013] NSWCCA 90; 228 A Crim R 50
- R v Shankley [2003] NSWCCA 253
- Sampson v R [2023] NSWCCA 239
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14