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Court of Criminal Appeal 21 June 2024

Fuller v R

[2024] NSWCCA 106

Assault & violenceTheft & property

Citation: Fuller v R [2024] NSWCCA 106
Court: Court of Criminal Appeal, NSW
Date: 21 June 2024
Judges: Mitchelmore JA (leading judgment); Sweeney J and Huggett J (agreeing)

Background

The applicant pleaded guilty in the District Court to entering a dwelling house with intent to steal, with charges of larceny and stealing a motor vehicle taken into account on a Form 1. The offending involved the applicant and a co-accused travelling to a hotel where the co-accused had arranged to meet a victim through a dating website. The applicant knocked on the victim's hotel room door, attempted to push past him, and ultimately stole $500 cash and the victim's Mercedes.

At the sentencing hearing, both parties agreed that the applicant had made "quite frank admissions" to his own offending conduct during a recorded police interview (an ERISP, or electronically recorded interview with suspect). The applicant also gave unchallenged evidence of remorse about the impact of his offending on the victim.

The sentencing judge imposed four years' imprisonment with a three-year non-parole period. In doing so, the judge was critical of the applicant's ERISP responses, concluding that his expressions of remorse were not genuine partly because he had not made clear admissions without obfuscation or prevarication. That conclusion directly contradicted the agreed position of both parties.

  • Whether the sentencing judge denied the applicant procedural fairness by departing from the agreed characterisation of the ERISP admissions as "quite frank" without alerting the parties and giving them an opportunity to respond.
  • Whether the sentencing judge erred by giving insufficient weight to the applicant's early guilty plea as evidence of contrition.
  • Whether the sentencing judge erred by rejecting unchallenged evidence of remorse without giving the applicant an opportunity to address that rejection.
  • Whether the sentence was manifestly excessive.

Decision

Ground 1(a): ERISP and procedural fairness (upheld)

The Court found that the sentencing judge's adverse assessment of the ERISP responses did not accord with the basis on which both parties had proceeded throughout the hearing. The Crown had agreed that the admissions were "quite frank" and did not seek to revisit that position after the ERISP transcript was tendered. By using the ERISP to undermine the applicant's remorse in a way that was contrary to the agreed factual foundation, without giving the applicant any opportunity to address that departure, the sentencing judge denied the applicant procedural fairness. This ground was upheld, and the sentence was set aside.

Ground 1(b): Guilty plea and contrition (not upheld)

The Court found no error in the sentencing judge giving the applicant's guilty plea less weight as evidence of contrition in the particular circumstances of this case. The plea alone does not compel a finding of genuine remorse.

Ground 1(c): Unchallenged remorse evidence (not upheld)

A sentencing judge is not required to accept evidence of remorse simply because it is given on oath and goes unchallenged. The burden remains on the offender to establish remorse on the balance of probabilities. The Court found no procedural fairness error in the judge's treatment of the remorse evidence standing alone. It was the combination of departing from the agreed ERISP characterisation without notice, rather than the rejection of remorse evidence generally, that constituted the procedural unfairness.

Resentencing

As neither party submitted the matter should be remitted to the District Court, the Court of Criminal Appeal resentenced the applicant directly. After applying a full 25% discount for the utilitarian value of the guilty plea to a starting point of four years, the Court imposed a total sentence of three years' imprisonment, with a non-parole period of two years and three months, backdated to the date of custody. An intensive correction order was not available given the length of the sentence imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 6 November 2023 quashed.
  • Applicant resentenced to imprisonment with a non-parole period of 2 years and 3 months commencing 29 October 2022 and expiring 28 January 2025, with a balance of term of 9 months expiring 28 October 2025 (total term: 3 years).
  • Earliest eligible release date: 28 January 2025.

Key Takeaways

  • Procedural fairness in sentencing requires that a judge who proposes to depart from an agreed factual basis must give the parties an opportunity to address that departure before acting on it.
  • Where both parties have proceeded on an agreed characterisation of evidence, including an agreed description of a police interview as involving "frank admissions," a sentencing judge cannot use that evidence against the offender in a materially different way without first raising the issue.
  • A sentencing judge is not obliged to accept sworn, unchallenged evidence of remorse. The offender bears the burden of establishing remorse on the balance of probabilities, and rejection of that evidence does not of itself constitute a denial of procedural fairness.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 68(1), an intensive correction order cannot be made where the term of imprisonment imposed exceeds the statutory threshold, regardless of submissions in support of such an order.
  • In allowing a procedural fairness ground, the Court of Criminal Appeal may resentence directly where neither party contends the matter should be remitted to the original court.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3)(i), 32, 68(1)
- Crimes Act 1900 (NSW), ss 111(1), 117, 154F

Cases
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
- Crane v R [2024] NSWCCA 87
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- Hoskins v R [2020] NSWCCA 18
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mihelic v R [2019] NSWCCA 2
- Newman v R [2018] NSWCCA 208
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Skocic v R [2014] NSWCCA 225
- Smith v R [2024] NSWCCA 59
- Turnbull v R [2019] NSWCCA 97
- Whipp v R [2024] NSWCCA 79
- Wong v R (2001) 207 CLR 584; [2001] HCA 64