Fuller v R

[2023] NSWCCA 282

Court of Criminal Appeal (NSW)|2023-08-14|Before: Adamson JA, Wright J, Fagan J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-08-14

Before

Adamson JA, Wright J, Fagan J

Catchwords

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

Source

Original judgment source is linked above.

Catchwords

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

Judgment (22 paragraphs)

[1]

Solicitors: Ross Hill and Associate Solicitors (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00246975 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 02 February 2023 Before: Hock DCJ File Number(s): 2021/00246975

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mr Fuller, pleaded guilty to a charge of 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 was committed against his former domestic partner, with whom he shared four children, and was extremely menacing and explicit as to the threat of killing. The applicant was sentenced in the District Court to imprisonment for a non-parole period of 2 years and 10 months and a balance of term of 1 year and 8 months. At the time of offending and sentencing, the applicant was serving a sentence of imprisonment for manslaughter of 8 years and 4 months. The effective overall sentence for both offences yielded a non-parole period of 7 years and 6 months and a total sentence of 9 years and 2 months imprisonment, representing a non-parole ratio of 82%. When sentencing the applicant under the heading of objective seriousness, Hock DCJ noted that it was an "aggravating factor that the offence was committed in custody while serving a sentence for an extremely violent crime" and as such, there was an increased need for general deterrence. Her Honour also referred to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and accepted that the sentence should be served partly concurrently and partly consecutively with the sentence for manslaughter. The issues raised by the applicant's grounds of appeal were: 1. Whether the sentencing judge erred by finding the applicant's history presented as an aggravating factor; 2. Whether the sentence imposed was manifestly excessive in all the circumstances, particularly in light of the fact that the ratio for of the effective non-parole period to the total effective sentence exceeded the statutory ratio. The Court (per Wright J, Adamson JA and Fagan J agreeing) granted leave to appeal but dismissed the appeal Held as to issue (i): The remarks on sentence must be read as a whole and not in a pedantic or semantic fashion. Viewed in context, it was clear that the sentencing judge's comment that the offence was aggravated by the fact it was committed while the offender was in custody for taking a human life in a violent crime was intended to convey that the circumstances identified made the threats in the document more terrifying and thus the offence in question more objectively serious. The comment did not involve consideration of the applicant's "record of previous convictions" for the purposes of considering a statutory aggravating factor. Rather, the applicant's criminal history was considered separately, and at some length, by the sentencing judge in relation to the subjective case of the offender: [53]-[55] Held as to issue (ii): The sentence imposed was not outside the range of available sentences nor was it unjust or plainly unreasonable, especially when consideration was had to the nature and circumstances of the offending, including the terms of the poem sent to the victim and the domestic relationship between the offender and the victim. The sentencing judge gave express consideration to the length of the total effective non-parole period and the ratio but concluded that no less effective non-parole period would adequately reflect the purposes of sentencing. This did not involve any error: [63]-[66].

[7]

Facts

It was noted that the applicant was serving a custodial sentence for manslaughter.
In relation to the offence for which the applicant was to be sentenced, the sentencing judge found that the victim had been in a relationship with the applicant on an "on and off basis" for more than a decade from 2007. They have four children together. During their relationship, the applicant referred to the victim as "Little Fox".
In about mid-2019, while the applicant was in custody, the victim commenced a relationship with a former friend of the applicant. Having found out about this in late August to early September 2019, the applicant then tried to win back the victim's affection.
On 21 October 2019, the applicant sent to the victim a bunch of roses and a card, reading: "To [the victim], thinking of you more and more every day, My Little Sox [sic]. Love Always, Justin"
On 22 October 2019, the applicant sent another bunch of flowers with a card, which read: "Beautiful flowers for the most beautifulest women in the world. Love you forever, my Little Fox"
The same day, he called the victim from gaol and she thanked him for the flowers. The applicant spoke of wanting to continue their relationship on his release.
Between 22 October 2019 and 27 May 2020, the victim and the applicant continued to have contact by telephone and she visited him in gaol. They spoke of his bail application, their children and their daily lives as well as his property, tax, MyGov account and Centrelink reference number. The victim held a power of attorney for the applicant during this time. The applicant repeatedly asked the victim whether she was still seeing his former friend but she declined to give a clear answer, although the pair continued to say they loved each other. Some of the calls contained veiled threats concerning the former friend, for example: "I don't want to get out and then end up back in here".
On 27 May 2020, the relationship between the victim and the applicant ended in a verbal argument on account of the applicant learning that the victim had continued to see his former friend. The applicant deleted the victim's phone number from his call list.
On 27 May 2020, the victim also received a letter from the applicant, which contained a collection of family photos which were originally of her and their children but they had the children's faces cut out and so depicted only her. Another photo of the victim and the applicant was enclosed with her face crossed over. The applicant's letter also contained a drawing of flowers with a heart in the middle, with the word "hate" inside it.
The applicant and the victim had intermittent contact on one of their children's telephones during the remainder of 2020 and the first half of 2021. In mid-May 2021, the applicant and the victim had an argument over the telephone.
On 19 or 20 May 2021, the victim received a letter in a correctional centre envelope, which was the same as the envelopes that the applicant had previously used. The envelope contained a poem which was as follows: "A man must have Dreams Cause this World is not What it seems. If I don't get this shit off my mind, These Bar i will forever Stay Behind. At the end of the Day, what can i say from the Bottom of my heart, i meant it when i said "until death do us apart." You said you would Always Be there, But i don't see where. i'm not mad, i'm just Sad. One Day i've got it all, the next i'm Kept Behind a locked door. As i sit in this cell, Thinking about going to Hell, i cant's Help But Hate thinking of you getting it up the Date. While i'm Sitting in here going out y mind, your out there getting it from Behind. You Always said that your ass Belonged to me, Now you will see Just how Bad i Can Be. Will you ever feel safe in the Dark, Knowing that you Broke my heart? could i make Killing you a form of Art? When i get out, you will go mad with Doubt. Will the next time your looking me in the eyes Be your time to Die? Will Today be that Day? What the Hell will you say? And No, i'm not going nuts, i Just Hate your fucking guts. One Day, I will Be free, So you should Just hang yourself from a tree Think of how happy you would make me Be. i guess we will Just have to wait and see, Just which way it's gonna be One Thing is Clear, This i tell you my Dear The Day you fucking Die, i will be on a fucking High. So Until that day, All i will say is Tick Tock my little fox"
This poem caused the victim to feel terrified as she read it and it was reported to police.
The applicant was charged with an offence contrary to s 31(1) of the Crimes Act on 26 August 2021 and, as noted above, he pleaded guilty to that offence.

[9]

The applicant's subjective case

Hock DCJ then turned to consider the applicant's subjective case.
After noting that the applicant was 36 years old, and 34 at the time of the offending, her Honour considered that until 2020, his criminal history was relatively minor including a number of convictions for common assault, possessing a prohibited weapon, contravening an apprehended violence order and assault occasioning actual bodily harm.
Hock DCJ found that the most significant matter on the applicant's record was the conviction for manslaughter committed on 19 December 2018 for which the applicant was sentenced, on appeal, to imprisonment for 8 years and 4 months, with a non-parole period of 5 years and 8 months, dating from 19 December 2018. It was noted that this was the applicant's first custodial sentence and "represented a disturbing escalation of his violent offending".
Next, it was noted that the applicant did not give evidence but relied on a comprehensive forensic psychological report, prepared by Ms Caroline Hare, and a Violent Offenders Treatment Program (VOTP) report.
Drawing on that material, her Honour found that the applicant experienced deprivation and dysfunction in his early childhood and adolescence, when his father was an alcoholic and verbally abusive when intoxicated. When the applicant was about 6, he witnessed his father shoot himself in the stomach. It was noted that his father did become sober but died in 2017 and his mother remained supportive of the applicant despite problems in their relationship in earlier years. The applicant was sexually assaulted by two different men when he was 12. One of these was a teacher and this, understandably, had an impact on the applicant's engagement in education and behavioural deterioration. Hock DCJ noted that the psychologist recorded that the applicant was "largely illiterate".
It was accepted that the applicant reported working in the prefabricated concrete industry for a total of about 10 years, including as a supervisor which gave him a sense of pride in his achievement, and that he told the psychologist that he recognised the importance of engaging in work to maintain lifestyle stability.
As to the applicant's drug use, it was accepted that he turned to using cannabis after he was sexually assaulted at the age of 12 and that he was exposed to it at a young age by his father. Thereafter, the applicant used "ice" and became addicted to opioids after sustaining serious injuries from a motor vehicle accident in 2007. It was noted that he was currently on a bi-monthly program of Buvidal injections which adequately managed his cravings.
Her Honour recognised that the applicant's childhood difficulties including exposure to illicit drugs, "reduced his moral culpability to some extent", although "protection of the community remain[ed] an important consideration in the sentencing process".
The sentencing judge also observed that, "to his credit", the applicant participated in the VOTP and completed it in April 2022. It was noted that the report from that program included the following: "[The applicant's] attendance was good and he was always appropriate and supportive of other participants. His participation was always very good, and he actively engaged and contribute[d] to the Violent Offenders Treatment Program group discussions. He was conscientious in the completion of his homework and his written work was commensurate with his abilities."
Her Honour observed that after completion of the VOTP, the applicant's risk of violent reoffending was assessed as having been lowered from the medium risk range to the lower range.
Hock DCJ also noted that the applicant "offered remorse for his conduct" to the psychologist and by his plea of guilty and that the psychologist reported that he has "seemingly accepted the termination of their relationship but hopes that they can successfully cooperate in the future to co-parent their four children".
In light of the positive factors, her Honour concluded that the applicant's prospects of rehabilitation appeared to be reasonable. It was also suggested that he would continue to benefit from following the recommendations of the psychologist and engaging in vocational, educational and psychological programs in custody and on parole.

[15]

Submissions

The substance of the applicant's submissions in relation to the first ground of appeal was that by stating that it was "an aggravating factor that the offence was committed in custody while the [applicant] was serving a sentence for an extremely violent crime" when considering the objective gravity of the threatening document offending as well as referring to the manslaughter offending as the "most serious matter on the [applicant's] record" when considering his criminal history as part of his subjective case, the sentencing judge had "double loaded", or "double counted", the applicant's criminal history as an aggravating factor.
In addition, it was contended that Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14 (Veen No 2) and R v Shankley [2003] NSWCCA 253 (Shankley) at [31] established that effect of the prior criminal record of the offender, where it is relevant to sentencing, was not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted".
Ms Kluss of counsel, who appeared for the applicant, thus submitted in effect that taking into account the manslaughter offending as increasing the objective seriousness of the later offending was both impermissible and involved double counting.
The Crown effectively submitted in its written submissions that the sentencing judge's comment that it was "an aggravating factor that the offence was committed in custody while the [applicant] was serving a sentence for an extremely violent crime" was merely a reference to an objective circumstance which made the offending for which the applicant was to be sentenced more serious. In addition, it was submitted that the discussion of the applicant's prior offending under the heading of "Subjective case of the offender" involved a consideration of another, different relevant factor, namely his criminal history. It was noted that the sentencing judge's consideration of his criminal history did not include any finding that the applicant's history aggravated the seriousness of the offence for which he was to be sentenced.

[16]

Consideration

Given the nature and circumstances of the relationship between the applicant and the victim and the threatening terms of the poem he caused her to receive, there can be no doubt that the fact that the applicant was in custody serving a sentence for taking a human life in an extremely violent crime rendered the threats in the poem more terrifying and thus the offence for which the applicant was to be sentenced more objectively serious.
It is important not to take a pedantic or semantic approach to remarks on sentence, but rather they should be read fairly as a whole: R v Nahlous [2013] NSWCCA 90 at [93]; 228 A Crim R 503 (Adamson J (as her Honour then was), Davies J and Hoeben CJ at CL agreeing). When the remarks on sentence in this case are read fairly and as a whole, it can be seen that the sentencing judge's comment that "it is an aggravating factor that the offence was committed in custody while the [applicant] was serving a sentence for an extremely violent crime" was intended to convey that the circumstances identified made the offence in question more objectively serious and thus, as her Honour said, there was "an increased need for general deterrence in such circumstances". That comment was not intended to, and did not involve, a consideration of the applicant's "record of previous convictions" for the purposes of determining whether that matter should be found to be an aggravating factor within s 21A(2)(d) of the Sentencing Procedure Act.
In the present case and consistently with what was said in Veen No 2 and Shakely, the applicant's record of previous convictions, or criminal history, was considered separately and at some length by Hock DCJ under the heading "Subjective case of the offender" in the remarks on sentence. Her Honour concluded that until 2020, the applicant's criminal history was relatively minor but the manslaughter offence, which led to the applicant's first custodial sentence, represented a disturbing escalation in his violent offending. No specific statement was made by her Honour that the applicant's record of previous convictions was taken into account as an aggravating factor increasing the sentence. Nor was it said that his record of previous convictions increased the objective seriousness of the offending for which he was to be sentenced.
In any event, the facts and circumstances that rendered the offending in the present case more objectively serious, namely that the applicant was in custody and had taken a human life in a an extremely violent crime, were different in nature from the applicant's record of previous convictions, which inter alia gave an indication of the applicant's subjective attitude or approach to offending generally. The fact that his criminal history included the manslaughter conviction, as a result of which he was in custody at the relevant time, did not mean that the sentencing judge erroneously considered that the applicant's record of previous convictions rendered his offending more objectively serious. The objective facts and circumstances of the offending were found by her Honour to have increased objective seriousness of the offending and thus the need for general deterrence. The remarks on sentence as a whole demonstrate that the sentencing judge did not consider that the applicant's record of previous convictions itself increased the objective seriousness of his offending.
When the remarks on sentence are properly understood in context and as a whole, there was not, in my view, any erroneous taking into account of the applicant's record of prior convictions to increase the objective seriousness of the offending or any impermissible double loading or double counting of the applicant's criminal history, as contended by the applicant under ground 1. Accordingly, I was of the view that ground 1 should be rejected.

[19]

Submissions

The applicant submitted that the sentence imposed for the offending relating to the threatening poem was manifestly excessive having regard to: 1. the non-parole period of 2 years and 10 months which, when considered with the non-parole for the manslaughter offence, yielded an overall period on parole of only 1 year and 8 months, which was inadequate for the purposes identified by both the sentencing court in relation to the manslaughter offence and Hock DCJ in relation to the threatening document offending as the justification for the findings of special circumstances in each case and was approximately 82%, well above the statutory ratio for the non-parole period to the total sentence; 2. the starting point for the sentence for the threatening poem offence of 6 years (before the application of the 25% discount for the plea of guilty which yielded the sentence of 4 years and 6 months) was very high given the maximum penalty of 10 years, especially in light of the favourable findings in relation to remorse, the applicant's positive response to the VTOP resulting in his risk of reoffending being reduced and his moral culpability being reduced by reason of his background, as well as consideration of the hardship caused by the effects of the COVID-19 pandemic, and this indicated that those factors had not been taken into account to moderate the sentence.
The substance of the Crown's written submissions was that the setting of the non-parole period for the threatening document offending involved no error and the differences in the rationales for the findings of special circumstances in respect of the manslaughter offence and the threatening document offending effectively reflected the applicant's different circumstances presented by each case. Furthermore, it was submitted that the setting of a non-parole period must adequately reflect the offending's objective criminality, which was what the sentencing judge expressly considered, and there was no factual error in the sentencing judge's finding that the effective overall time on parole was adequate for the offender's reintegration into the community. Finally, it was contended that, given the offending took place from custody, in the context of a domestic relationship and involved very serious threats, the sentence was not manifestly excessive in all the circumstances.

[20]

Consideration

The principles to be applied in determining whether a sentence is manifestly excessive are well established and were not in dispute in the present case. Relevantly for present purposes, those principles include that to be successful, a ground of appeal that complains of a manifestly excessive sentence must establish that the sentence imposed was outside the available range of sentences such as to be plainly unjust or unreasonable and only if the sentence is outside the proper range such that there must have been some misapplication of principle will appellate intervention be warranted: Honeysett v R [2023] NSWCCA 138 at [80]-[81] (Wilson J, Button and Sweeney JJ agreeing) citing The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].
No statistics as to lengths of sentences or comparable cases were relied upon by the applicant in the present case to assist in determining whether the sentence imposed by Hock DCJ was outside the available range of sentences.
The poem sent to the victim in the present case was extremely menacing and explicit as to the threat of killing. The words and ideas, in particular those set out below, were chillingly terrifying, designed to instil fear and to remove any sense of safety or security from being attacked and killed: "… Now you will see Just how Bad i Can Be. Will you ever feel safe in the Dark, Knowing that you Broke my heart? could i make Killing you a form of Art? When i get out, you will go mad with Doubt. Will the next time your looking me in the eyes Be your time to Die? Will Today be that Day? What the Hell will you say? And No, i'm not going nuts, i Just Hate your fucking guts. One Day, I will Be free, So you should Just hang yourself from a tree Think of how happy you would make me Be. i guess we will Just have to wait and see, Just which way it's gonna be One Thing is Clear, This i tell you my Dear The Day you fucking Die, i will be on a fucking High. So Until that day, All i will say is Tick Tock my little fox"
It must also be borne in mind in the present case that the victim was in a domestic relationship with the applicant for a considerable period, they have four children together and the offending involved very serious threats of personal violence by killing. Whether the sentence was manifestly excessive was, therefore, to be considered in light of the principles relating to the sentencing of offenders for domestic violence offending. In this Court, Johnson J (Macfarlan JA and Harrison J agreeing) explained in Cherry v R [2017] NSWCCA 150 at [78] and [79]: "78 … It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community. 79 In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54]."
Taking into account those matters, the maximum penalty of 10 years' imprisonment under s 31(1) of the Crimes Act, the other relevant facts and circumstances identified by the sentencing judge and the purposes of sentencing, I was of the view that a sentence of 4 years and 6 months after the application of the discount of 25%, implying a starting point of 6 years, was not unreasonable or plainly unjust nor did it bespeak some error of principle. This was so even taking into account all of the positive findings made by the sentencing judge in relation to the applicant's remorse, reduced risk of reoffending and reduced moral culpability because of his disadvantaged background and upbringing, as well as the hardship in custody caused by the effects of the COVID-19 pandemic and the finding of special circumstances.
As to the length of the effective non-parole period when the sentence for the threatening document offending was considered together with the sentence for the manslaughter offence, it could be perceived that the period of 1 year and 8 months was shorter than the parole periods for each of those offences taken separately and that it was equivalent to a non-parole to total sentence ratio of approximately 82%. From the remarks on sentence, however, it can be seen that Hock DCJ gave particular consideration to the length of the total effective non-parole period which would result when the sentence for the manslaughter offence was considered with the sentence imposed by her Honour. It was her view that "no lesser effective non-parole period for this current sentence would adequately reflect all the purposes of sentencing set out in s 3A of the [Sentencing Procedure Act]." This conclusion was certainly open to her Honour and did not involve any error.
While the total effective parole period might have been viewed as short, the evidence did not establish that it was inconsistent with the findings of special circumstances made in relation to both the sentence for manslaughter and the sentence of the threatening document offending. Furthermore, the length of the total effective parole period was the result of a principled determination of the appropriate sentence having regard to all the relevant facts and circumstances and principles of sentencing including, in particular: 1. the fact that a lesser non-parole period for the threatening letter offending would not adequately reflect all the purposes of sentencing; and 2. the appropriate date for commencement of the sentence in light of s 56 of the Sentencing Procedure Act and given the sentence that the applicant was currently serving for the manslaughter offence.
There was no error of principle by the sentencing judge in so doing. Even though short, the total effective parole period was not so short or disproportionate in all the circumstances as to render the sentence for the threatening document offending unreasonable or plainly unjust nor did it bespeak some other latent error of principle.
For these reasons, I was of the view that ground 3 should not succeed.

Fuller v R

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