R v Fuller

Supreme Court of NSW|2020-10-16|Before: Cavanagh J

Judgment

On 2 September 2020, the offender was found guilty by a jury of 12 of the charge that on 19 December 2018 in Belmont South in the State of New South Wales, he did unlawfully kill Guy Hamilton McCulloch, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).

Facts

It is my task to find facts for the purposes of sentencing. Any view of the facts adopted by me must be consistent with the jury's verdict. To the extent that I make findings against the offender, I apply the criminal standard. [1]
Having regard to the nature of the defences raised by the offender, a number of key facts relevant to those defences were in dispute. However, the offender did not dispute that he did, at around 1.40pm on 19 December 2018, stab Mr McCulloch with a large knife (albeit he was carrying two) whilst Mr McCulloch was sitting in the driver's seat of his vehicle and whilst Ms Kristy Duley was sitting in the passenger's seat.
It is not in dispute that the stabbing of Mr McCulloch occurred within about 15 minutes after Mr McCulloch had twice deliberately reversed his black Nissan Navara into the front of the offender's silver Holden Commodore vehicle, which was stationary at the time. On the first occasion that this happened, the offender's then-partner, Narelle Abercrombie, was in the driver's seat of the Commodore.
The nature of the defences raised by the offender meant that the focus of the trial was on the events that happened on the date that Mr McCulloch was killed, leading up to the stabbing, as well as the conflict between the offender, Ms Duley and Mr McCulloch and various other family members in the years prior to the day of Mr McCulloch's death.
Much of the version of events put forward by Ms Duley and other prosecution witnesses was the subject of dispute, leading to extensive cross-examination, as were parts of the version of events put forward by the offender, who gave evidence at the trial.
It is not possible to know what facts might have been accepted by the jury or whether the jury accepted both or only one of the defences raised by the offender. Different jury members might have accepted different parts of the evidence and come to different conclusions about the basis of the manslaughter verdict.
It is my task to find facts only for the purpose of this sentencing judgment.
The offender is the half-brother of Ms Duley, who was Mr McCulloch's long-term de facto partner. They share the same mother, Toni Fuller. There was a long history of conflict between Ms Duley and perhaps Mr McCulloch, who was also known as Wink, on the one side and the offender and Mrs Fuller on the other side. The extent to which Mr McCulloch was directly involved in this conflict was a matter in issue at the trial.
Ms Duley and Mr McCulloch had six children together. Unfortunately, those children were removed from their care at two different points, with three children being removed in 2001 and their further three children being removed in 2013. Three of the children were placed under the care of Mrs Fuller.

Conflict prior to the day

This and other matters led to considerable conflict between Ms Duley and Mrs Fuller, as well as the offender.
There were a series of events, incidents or threats raised as relevant to the partial defences by the offender during the course of the trial. Whilst I directed that the jury could not have regard to all of these matters (such as Ms Duley's Facebook posts directed at her mother), a number of incidents were highlighted during the trial that I accept occurred. These included: 1. In or around September 2014, the caravan in which Ms Duley was living at the time and in which she stored belongings was set on fire. She believed that the offender was responsible. 2. Subsequently, in October 2014, Ms Duley used some form of petrol incendiary to set fire to the offender's four-wheel drive, which also caused damage to the house of Ms Abercrombie. The offender believed that Ms Duley was responsible and she later admitted to it. 3. In 2015, whilst the offender was living at Gateshead, three men paid a visit to him. They said that Wink knew where he was living and that he had better watch his back; Wink knew what he had done. This appears to have been a reference to the caravan fire in 2014. 4. During the four years between these events and the day of Mr McCulloch's death, there were a number of events or incidents involving some or all of the offender, Ms Duley, Mr McCulloch and Mrs Fuller, including: 1. Ms Duley threatening her mother at her mother's place of work; and 2. Ms Duley and Mr McCulloch driving by the offender's residence or that of Mrs Fuller with Ms Duley yelling out threats such as "tick tock" or "you're dead" or making a slicing motion across her throat.
One of the incidents about which the offender gave evidence involved Gregory John Gay, who was a friend of Mr McCulloch and a witness to the events on the day of his death. Mr Gay denied knowing the offender but the offender said that there had been a prior meeting between him and Mr Gay, at which time Mr Gay asked the offender whether he knew who he was and said that he was one of Wink's mates and mentioned that he could hit him with a bow and arrow.
Mr Gay denied that such a conversation ever took place.
He was cross-examined forcefully and described by Senior Counsel for the offender as simply a liar. I do not know what the jury made of that conflict. It is not necessary that I make any finding about it for the purposes of my sentencing task. It could only have gone to the offender's state of mind on the day.
As I have said, there was a long history of conflict between the offender and Ms Duley. Mr McCulloch played a significant role in that conflict in that he was often the driver of the vehicle with Ms Duley in the passenger's seat. In that sense, he was part of the conflict, albeit that he maintained some relationship with the offender.

The events of the day

Some events of the day were the subject of dispute between the prosecution and the offender. They mainly related to what was said at certain times, whether Mr McCulloch made threats towards the offender, whether Mr McCulloch tried to reverse into the offender at any time and whether the offender punched Ms Duley at any time. Having regard to the verdict, it seems likely that the jury must have accepted much of the offender's version on at least a number of matters that were in dispute.
For the purposes of the sentencing judgment, I accept the following sequence of events.
At approximately 1.20pm on 19 December 2018, Mr McCulloch and Ms Duley were out the front of the house at 5 Beach Street, Belmont South with Mr Gay and his partner, Nadine Harrison, who lived at that property.
As they were out the front, the offender and Ms Abercrombie happened to drive by with a number of their children in the offender's silver Holden Commodore. Ms Duley yelled out, "tick tock" in the direction of the offender's vehicle. Ms Abercrombie responded with a raised middle finger. On learning of Ms Duley's comment, the offender wanted to get out of the vehicle at that point, but Ms Abercrombie kept driving to 16 Marriot Street, where Mrs Fuller lived.
When she stopped the vehicle, the offender got out of the car and walked very quickly back towards Mr Gay's house in Beach Street (roughly a two to three minute walk).
On seeing the offender heading back towards Beach Street (after leaving her children in the care of Codie Fuller), Ms Abercrombie followed him in the vehicle. She continued to follow him until she parked the vehicle in Beach Street, a little behind Mr McCulloch's vehicle, a black Nissan Navara. By this time, Mr McCulloch and Ms Duley were sitting in the driver and passenger seats of their vehicle.
The offender's purpose in returning to the scene was to confront Ms Duley and also to ask Mr McCulloch to stop driving Ms Duley past their house, as on the offender's version, this is when Ms Duley would often yell out things directed at him.
On the offender's version, he was approaching the passenger window of Mr McCulloch's vehicle to confront Ms Duley, when Mr McCulloch suddenly reversed quickly into the front of his vehicle in which Ms Abercrombie remained, nearly running over the offender in the process.
It is not clear to me what would have prompted Mr McCulloch to reverse into the vehicle at any point before the offender's confrontation with Ms Duley. It may be more likely that he did so at the point when the offender was remonstrating with Ms Duley as she sat in the passenger seat.
Ms Duley says that prior to any ramming, the offender approached her as she sat in the passenger's seat and started punching her.
Ms Harrison, Mr Gay's partner, gave evidence at trial that she observed the offender punch Ms Duley 20 to 30 times. In the aftermath of the stabbing, she was recorded on a body-worn camera worn by a Police Officer standing outside her house, saying that the offender punched Ms Duley a couple of times.
Ms Duley said that she did her best to avoid the blows whilst the offender continued to rain punches on her from a standing position outside the vehicle.
The offender denies punching or attempting to punch Ms Duley at all. Having regard to the absence of any significant injury or marking to Ms Duley, if there was any physical action by the offender at that time, it was limited and did not cause any injury to Ms Duley. He did not punch her 20 or 30 times.
Having said that, there was at least a heated confrontation instigated at that time by the offender.
It is only necessary to find that at some point during the offender's confrontation with Ms Duley, Mr McCulloch reversed his vehicle with force into the offender's vehicle whilst Ms Abercrombie remained in it.
At some point after the first ramming, Ms Duley opened her car door and things fell from the car into the gutter. At some point thereafter, Mr McCulloch again reversed the Nissan Navara into the front of the offender's vehicle, this time, with even more force. He did so deliberately. Because of the shape and features of the back of the Navara, the collision caused significant damage to the offender's vehicle but not Mr McCulloch's.
The offender may have had to jump out of the way of the vehicle as it was reversing. He believed that Mr McCulloch was trying to run into him (although there was no evidence that Mr McCulloch was actually trying to run into the offender).
In any event, after the second ramming, there followed a confrontation between Mr McCulloch and the offender which was captured by Ms Abercrombie on a mobile phone. The footage formed part of the evidence in the proceedings. The offender went to the driver's side door of the vehicle. The confrontation was verbal but not physical. The offender says that as he was standing toe-to-toe with Mr McCulloch, adjacent to Mr McCulloch's driver's side door, Mr McCulloch said, "Do you want to see how far I'm willing to go?" He saw him look down towards the bottom of his seat and the offender says he saw something which looked like a knife.
He said at this stage he saw Mr Gay coming towards him with a baseball bat. I accept that by this stage, Mr Gay had a baseball bat and was moving towards the vehicle. He is shown on the same footage caught by the mobile phone.
Around this time, that is, within seconds of all this occurring, Ms Duley moved from Mr McCulloch's vehicle towards Ms Abercrombie who was, by this stage, standing on an adjacent corner on the other side of the road. The offender left Mr McCulloch and moved to get between Ms Duley and Ms Abercrombie. Ms Duley accepted that she was going to "have a go" at Ms Abercrombie whilst the offender and Mr McCulloch were standing toe-to-toe, adjacent to the driver's side door of Mr McCulloch's vehicle.
Ms Duley did not touch Ms Abercrombie. The offender got in between them. Ms Duley and the offender exchanged words in a heated way.
Immediately thereafter, Mr McCulloch called out to Ms Duley to come back to the car. At this time, Mr Gay was standing somewhere close to Mr McCulloch's vehicle with a baseball bat in hand. The offender says and I accept that he heard Mr Gay ask Mr McCulloch if he wanted him to go on with it. He had the bat in his hand.
Mr McCulloch and Ms Duley then got into their vehicle and drove away. According to the offender, as they did so, they swung past the corner of Ellen Street where the offender and Ms Abercrombie were standing. The offender said that Mr McCulloch said, "Game on dog. You and your family's dead". He then put the car in reverse, swung around and turned down Hudson Street.
The offender took what was said as a threat to his family. He told Ms Abercrombie to stay there, that is, on the corner of Ellen Street and Beach Street.
After a short exchange with Ms Abercrombie, the offender took off on foot towards the house on Marriott Street. When he got there, his sister, Codie Fuller, and his children were inside the house. He asked whether Ms Duley and Mr McCulloch had been there. She said they had not been. He told his sister that Wink just smashed the car and threatened to kill him. Ms Fuller said the kids were alright. She was watching them.
He then went to check Ms Abercrombie's house, which was about a three minute walk away, being on the next street over. Before he got to that house, Mr McCulloch and Ms Duley drove back past him in the direction of Mr Gay's house.
When they left the scene initially, they had gone to a 7-Eleven service station on the corner of Marks Point Road and the Pacific Highway. Whilst they were at the service station, she had said to Mr McCulloch that they should return to the scene even though they knew that the Police had been called. She was concerned that Mr McCulloch might lose his licence (that is, his work licence, which he needed for his part-time work).
They were on their way back to the scene when they passed the offender. As they were driving past, Ms Duley motioned a gun-like signal. Mr McCulloch said, "Who's protecting your missus now?"
The offender contemplated running back to Beach Street but instead ran to Ms Abercrombie's home. He says that he was looking for his phone to try to ring Ms Abercrombie. He was looking in his bag and as he did so, he noticed two machetes in the bag. He had used the machetes the weekend before to cut out a motorbike track for the kids.
The offender took the bag and jogged back towards Beach Street with the machetes inside. He said that his thinking at the time was that if they went to attack him, he could pull the knives out and scare them off. He said he was not sure where Ms Duley and Mr McCulloch had gone to or where Ms Abercrombie was but he was concerned for her safety. Having said that, his decision to take the bag with the knives in it was deliberate. I accept, however, that he was not planning at that point to stab Mr McCulloch.
He says that as he entered Beach Street, he was looking around for Ms Abercrombie and calling out for her. He says he checked for her in the Commodore and called towards Ellen Street where he had last seen her. He says he did not see her. Although the Crown submits that I would not accept this part of the offender's evidence, having regard to other evidence including CCTV footage taken from a house on Ellen Street I am unable to conclude beyond a reasonable doubt that Ms Abercrombie was there to be seen at the precise time when the offender looked for her.
The offender says he heard Mr Gay yell out, "She's as good as gone".
As a result of Mr Gay's statement about Ms Abercrombie, he was thinking about whether Mr McCulloch and Ms Duley had her. He was trying to see what was happening in the back of their Navara. He told Mr Gay to stay out of it. On the offender's version, Mr Gay then grabbed an axe and jumped the fence. I consider that Mr Gay grabbed his axe after he first saw the knives.
The offender admits that at this time he pulled the two knives out of his bag and clanged them together saying words, "What, you want some of this?" Mr Gay then yelled out to Ms Duley and Mr McCulloch, "He's got two knives".
Mr McCulloch took off immediately in the vehicle and the offender started chasing the vehicle. He says he wanted to see what was going on in the back seat of the car because of his concern for Ms Abercrombie's safety.
He chased the vehicle but the vehicle was speeding off until it suddenly stopped. The offender had stopped chasing when he heard or saw the vehicle reversing towards him. He jumped out of the way just as it was about to hit him. He jumped on to the side rock slider of the vehicle.
The physical evidence makes it clear that Mr McCulloch did suddenly stop and reverse. The reason he did so is not known and whether he was actually trying to run over the offender is not known but the offender believed this is what he was trying to do.
The offender had to jump out of the way. He says he landed on the side of the driver's door and grabbed the side of the driver's window, which was down. He had the two knives in his hands. He reached into the driver's side and stabbed Mr McCulloch five times. He did so deliberately. On one occasion, the knife penetrated into the liver. It was the fatal strike. The other wounds were more superficial in nature.
The offender said he was not thinking of a knife being in his hands at the time. He said the first two blows were struck as the car was reversing and he was going for the third one when the car came to a halt. He realised he had stabbed Mr McCulloch. He remembers pulling the blade out of his stomach. He says he was in fear at the time; he had enough and he just wanted Mr McCulloch to stop. He was hanging off the side of a moving vehicle.
After the stabbing, the offender fled the scene, discarding the knives in a random property on the way back to the house at Marriott Street where he was arrested a short time later.
He said that he had had enough of Ms Duley's threatening him with Mr McCulloch and just the whole thing. This is consistent with a comment he made while being arrested a short time later, which was captured on a Police Officer's body-worn camera.
He said his kids had been scared and having nightmares and it was getting to Ms Abercrombie. His mother was stressed every day. He said that when he was coming back to Beach Street with the knives, he knew that the Police were on their way. He thought that if he got around there and there was nothing to fear, the knives would not need to come out of his bag.
He knew there were witnesses everywhere at the time. There had been a motor vehicle accident on the corner of Beach Street and the Pacific Highway which was within 50 metres from the point where Mr McCulloch was ultimately stabbed. Paramedics were at that scene at the time of stabbing. There were a number of people around and a number of persons gave evidence witnessing the stabbing.

Basis of manslaughter

The Crown Prosecutor urges me to conclude that the jury must have accepted the defence of extreme provocation, rather than self-defence with excessive force. This is because: 1. having regard to the evidence of Ms Abercrombie, she was there to be seen in Ellen Street when the offender returned with his knives; 2. despite Ms Duley's verbal threats over the years, there is no evidence of her ever being physically violent to Ms Abercrombie or any other person; 3. it is unlikely that the offender believed that Ms Abercrombie was in some way being held in the backseat of the Navara with Ms Duley doing something to her; and 4. the accused's assertion as to when Mr Gay had the axe and what Mr Gay said to him should not be accepted.
Mr Terracini on behalf of the offender says that it is not possible to know what the jury accepted and that I would only be speculating if I attempt to make findings one way or the other.
There is merit in both parties' submissions.
The jury may have generally accepted the offender's evidence including that the offender had a concern for Ms Abercrombie's safety. However, I am satisfied to the criminal standard that he was not looking for Ms Abercrombie in the vehicle immediately before the stabbing and he was not focused on her safety at that point.
He did not say that he looked into the vehicle when he was hanging onto the side immediately before the stabbing. If he had, he would have seen that she was not there.
The idea that Mr McCulloch had taken Ms Abercrombie against her will in broad daylight in the presence of other people seems most unlikely.
The jury may have accepted that the offender had concerns for his own safety in the moments leading up to the stabbing. Mr McCulloch must have suddenly reversed his vehicle at a point when the offender was around his vehicle and the jury may have accepted that the offender had cause to believe that he was attempting to run him over.
Mr Terracini also emphasises, and I accept, that it is unlikely the jury would have found self-defence with excessive force without accepting that much of the provocative conduct took place. This all leads to the conclusion that the jury must have accepted much of the offender's version.
Mr Terracini also submits that not only is it not possible to now determine whether the jury accepted one or both of the partial defences but it is unnecessary to make any finding about this as part of the sentencing process because, he submits, the nature of the offending is no worse than the case of manslaughter by an unlawful and dangerous act.
In this regard, the offender relies on the observations of the New South Wales Court of Criminal Appeal in R v Isaacs. [2] I do not accept that Isaacs necessarily establishes such a principle in all circumstances. Indeed, the Court emphasised that each case depends upon its own circumstances.
It is not always possible to determine by which route a jury reached its verdict. [3] Both partial defences were left to the jury. There was no suggestion that they should not have been.
Further, for the reasons I have identified, the facts are intertwined and the sentence does not depend upon whether the jury might have accepted the defence of self-defence with excessive force or extreme provocation. The members of the jury might have come to their verdict of manslaughter on different bases.
In a matter such as this, I do not consider it critical to determine on which basis the jury came to its verdict of manslaughter. What is important is that I properly consider the objective seriousness of manslaughter. The objective seriousness of the offending is essentially the same, no matter which defence was accepted. My sentence should reflect the objective seriousness of the offending and the offender's subjective case, as well as matters such as deterrence. [4]
It has often been said that the characterisation of the killing as coming within any particular head of manslaughter may not be of great significance in a particular case. [5] In my view, this is such a case.
My duty is to find facts sufficient for the sentencing task. It was the jury's duty to consider and determine whether one or both of the partial defences were made out. They plainly did consider that one or both of the partial defences were made out.
Having regard to the substantial overlap in the facts, it is not necessary for me to reach any concluded view as to whether the jury's decision was based on the partial defence of extreme provocation or self-defence with excessive force.

Victim impact statement

In the circumstances of this matter, it is important that I address the victim impact statement and the effect that Mr McCulloch's death has had on his longstanding partner and other family members.
Kristy Duley was the de facto partner of Mr McCulloch. She is 42 years old and had been in a relationship with the deceased since she was 18. She was sitting in the passenger's seat of the car when the offender stabbed Mr McCulloch as he was sitting in the driver's seat of the car.
She provided a victim impact statement which I have considered closely and have regard to. As she says in her victim impact statement, she has shared her entire adult life with Mr McCulloch and loved him deeply. Mr McCulloch was 50 years of age at the time of his death. They had been living in part out of their car and also staying sometimes with their friends Mr Gay and Ms Harrison. Mr McCulloch worked as much as he could and endeavoured to provide for Ms Duley.
It is difficult to imagine or comprehend the trauma that she must have experienced and continues to experience, both as a result of witnessing and being so close to the killing of Mr McCulloch and the sense of loss that she continues to suffer.
It is appropriate that I also acknowledge that the process of the trial would have aggravated her trauma and feelings of loss.
Ms Duley's prior conflict and relationship with the offender was the subject of considerable focus at the trial. This resulted in robust cross-examination of Ms Duley on behalf of the offender, no doubt having regard to the offender's instructions and version of events.
Although on the sentencing hearing Ms Duley entered the witness box to deliver her victim impact statement orally, she was unable to do so, instead expressing considerable anger and frustration at the process and the result. She expressed that anger and frustration as she left the Court. I was thus not able to express my sympathy to her for her loss. I do so, now.
I acknowledge Ms Duley's grief and loss and have had regard to her victim impact statement as an aspect of the harm done to the community. However my sentencing task requires me to balance a number of competing factors.

Seriousness of the offending

It has often been said that the crime of manslaughter involves the felonious taking of human life, which is regarded by the law as a most serious crime. [6] The Court of Criminal Appeal has also emphasised that the circumstances giving rise to a conviction for manslaughter and degrees of culpability are so varied that no established sentencing tariff can be applied.
The seriousness of the offending is determined with reference to the facts of the killing and not the class of manslaughter. [7] Mr Terracini helpfully provided JIRS statistics but the extent to which I could have regard to such statistics is limited. As is well known, using such statistics and other cases as a basis for sentencing is fraught with danger and must be undertaken with caution. [8]
There is no tariff and each case depends on its own facts and circumstances.
Objective seriousness must be assessed without reference to matters personal to the offender or a particular class of offender and only with reference to the nature of the offending. [9]
In my view, the offending is objectively very serious. It is well above the mid-range of objective seriousness.
In my view, there are a number of factors about the offending that place it in that range, including: 1. When the offender decided to return to the scene of the earlier incident, he brought with him two large knives, described as machetes. 2. As he was approaching Mr McCulloch's vehicle from behind, he decided to pull them out and brandish them. 3. He chased after Mr McCulloch with knives in his hands. 4. He stabbed Mr McCulloch five times whilst Mr McCulloch was defenceless sitting in the driver's seat of his vehicle next to Ms Duley. His use of weapons is an aggravating factor. 5. The fact that he did so in full view of a number of people who he must have known could see him, does not lessen the seriousness of the offending. Whether he might have had concerns for Ms Abercrombie's safety, the force used by the offender was extreme. 6. Such extreme violence was perpetrated in a public street in full view of a number of people.
In my view, this type of offending falls well above the mid-range and more in the higher range of objective seriousness.

Subjective case

The offender did not give evidence on the sentencing hearing. He gave evidence during the trial.
On the sentencing hearing, the offender relied on the following evidence: 1. report of John Machlin, Clinical Psychologist, dated 6 October 2020; 2. affidavit of Toni Fuller dated 13 October 2020; 3. affidavit of the offender's eldest daughter dated 13 October 2020; 4. affidavit of Kristy Bazic dated 14 October 2020; 5. affidavit of Alex J McCulloch dated 14 October 2020; and 6. affidavit of Suzanne Dawn Price dated 13 October 2020.
The Crown tendered the offender's criminal history and Department of Corrective Services Records.
None of the deponents, nor Mr Machlin, were required for cross-examination.
It is a matter for me what weight I give to statements said to have been made by the offender to the psychologist in circumstances in which the offender did not give evidence on the sentencing hearing.
The offender did give evidence during the trial. At the end of cross-examination he made a statement in answer to a question that he was distraught at what had he had done immediately after he had done it. He said "that man" was the father of his nephews and nieces, some of whom had grown up in the same house as him like brothers and sisters. He said he was not proud of what he had done but he had had enough. I have regard to that evidence as spontaneous and generally consistent with some of his statements to the psychologist. It is also consistent with his comment at the time of his arrest.
The offender is currently 33, turning 34 this week. Until being placed in custody, he has spent all his life in Belmont. His family and social circumstances are set out in the report of Mr Machlin. His father left the family when the offender was about 7. His mother was on a disability pension. He said he was sexually abused when he was in Year 6 and he used to suffer bullying. By the age of 12, he was smoking marijuana and moved onto party drugs.
His father returned to the family home when he was 16, having given up alcohol. His father died at some point in the 12 months or so prior to the events which led to the killing of Mr McCulloch.
The offender told Mr Machlin about the conflict with Ms Duley. He said he felt he needed to side with his mother and protect her.
The offender experienced learning difficulties and has difficulties with literacy, especially spelling. He suffered some injuries in a motor vehicle accident in 2007, which impacted upon his ability to work. As he said when being questioned during the trial about a matter related to the charges against him, there is not much work a person can get with his level of education and literacy.
He appears to have had a reasonable work record punctuated by time off for injury and difficulties remaining in employment consequent upon his limited education.
He has had six children to two different partners, two to his first partner, Ms Bazic. I acknowledge the supporting presence of his eldest daughter throughout the trial.
He had four further children with Ms Abercrombie. He believed that he had a good relationship with Ms Abercrombie but she has ended the relationship since he was taken into custody. He said he remains close to all his children and he yearns for the time when he can be part of their lives again.
He has had issues with drugs over the years. Following his motor vehicle accident at the age of 20, he was prescribed OxyContin and he became reliant on methamphetamine. In his late twenties, he relapsed again on methamphetamine. He sought treatment as an outpatient. He has subsequently been prescribed anti-depressant and anti-psychotic medications but he has not had psychotic experiences for a period of four years. At the time of the examination by Mr Machlin, he was on a combination of anti-depressant and anti-psychotic medication, apparently designed to assist with anxiety and depression, racing thoughts or ruminations and sleeping problems.
According to Mr Machlin, the offender shows no signs of cognitive impairment or psychotic disturbance. He would have met the diagnostic criteria for a substance abuse disorder during the periods when he resorted to methamphetamine use. He may have also suffered periods of clinically significant depression and PTSD.
According to Mr Machlin, in the time leading up to the offence, his historical frailties were compounded by the stress and anxiety of his ongoing conflict with Ms Duley and Mr McCulloch. However, he was functioning satisfactorily. He did not suffer from a cognitive disability or mental health condition at the time of his offence.
Mr Machlin felt that he was probably suffering an adjustment disorder with mixed anxiety and depressed mood.
Mr Machlin says that the offender comes from a life of significant social disadvantage and dysfunction which have had broad effects on him personally and embroiled him in ongoing family conflict which ultimately led to the death of Mr McCulloch. He is unable to comment on the extent to which his earlier mental health history, including depression and trauma symptoms, contributed to his actions in the heat of the moment. However, he says that the offender is contrite about the offence, understands the gravity and understands the devastating consequence for his family, including the children of Ms Duley and Mr McCulloch.
He has been reliant on medication for his anxiety and depression and may be vulnerable to depressive decline.
Having said that, Mr Machlin opines that his rehabilitative prospects are good, as he does not present as a high risk to the community. He would be well-advised to manage his external environment and take practical steps to avoid further conflict. He felt that the risk of reoffending would diminish should the offender relocate when released on parole. Mr Machlin opines that the offender would benefit from an extended period of parole to monitor his susceptibility to problems with his social environment and to ensure that he receives adequate treatment for his mental health.
It is not necessary that I merely repeat all of the evidence of those persons who have provided affidavits for the purposes of this sentencing. The offender's mother, Toni Fuller, details the trauma and disadvantage that the offender has suffered during his formative years, as well as a result of his serious car accident in 2007 and the difficulties that he had previously experienced with drugs.
She also details the support that the offender has given her since the death of her own husband and how the abusive conflict to which I have already referred affected both her and the offender.
The offender's oldest daughter is 15. As I have already observed, she provided support to the offender during the trial. She details the support that the offender has provided to her, in particular, emotionally and refers to how his encouragement has kept her in school and she is now in Year 10 at TAFE studying because of his constant encouragement to do so. She also refers to the remorse that he suffers.
The offender's former partner, Kristy Bazic, also refers to the support that the offender has provided to her and their two children since the children were born. She details the impact that the offending has had on her and her two children, in particular, referring to their oldest daughter. Her youngest daughter is also suffering from the consequences of her father's conduct.
I have also had regard to the affidavit of Alex McCulloch who is the oldest son of Mr McCulloch and Ms Duley and is now 23 years old. He details the very close relationship that he has had with the offender. He has had to come to terms with not only losing his father, but also losing his uncle. He says that he has experienced difficulties since the incident because he does not hate the offender and has had to deal with considerable ill feeling towards him. He says that he does not blame the offender. He says that he saw a lot of the drama that his parents caused towards the offender and his family.
I have also had regard to the affidavit of Suzanne Price who is close to the offender's mother, Mrs Fuller. She again refers to witnessing some of the drama that has taken place. She refers also to the considerable support that the offender had given to his mother over the years.
All of this evidence tends to support the proposition that the offender had been a supportive father and uncle, as well as a good partner to Ms Abercrombie, over the years. In particular, he had supported his mother and sided with his mother in the ongoing conflict with Ms Duley and, to a certain extent, Mr McCulloch.
The offender's criminal record is limited. He has had a number of driving-related offences, going back to 2007 and, in particular, had been convicted of driving recklessly in 2012 and then driving whilst his licence was suspended in 2018.
He was convicted of assault and contravene AVO in 2010 (both in June and November 2010) and then a further assault for which he was given a community service order in 2014. His criminal history is not such that it should bear on the length of this sentence.
I accept that his time in gaol has been made more difficult as a result of the current health crisis and as he waited for a long period of time for his trial date.
Further, he says that he has had to defend himself in goal on two occasions. He believes that his life is in danger from persons associated with Mr McCulloch. He says that he will have to move from his former residential area on release for his own protection.
In sentencing, I consider that general deterrence and denunciation is of some importance, particularly, as the offending occurred on a public street in full view of many members of the public.
Although the offending was a culmination of an ongoing conflict between persons known to each other, the offending took place in broad daylight at a place where it was observed by quite a number of people. The community must know that the Court treats such acts of public violence very seriously. Further, whatever the background and the offender's intentions, he deliberately brought two large knives to the scene of a conflict which had, to that point, involved property damage and threats and abuse. He then used them to stab Mr McCulloch. This was a violent crime. As is well known, bringing a weapon to the scene of a conflict creates the very real possibility that serious injury or death might happen. This is what happened here.
I do not consider that specific deterrence is of any real significance in the circumstances of this matter.
I accept that, having regard to the offender's background, the evidence from Mr Machlin, the offender's attempts at undertaking courses whilst on remand and the facts and circumstances to which I have referred, the offender has good prospects of rehabilitation.
Further, I accept that he has shown some remorse. He identified such remorse in answer to a question during cross-examination and made a similar statement to Mr Machlin. Having said that, the offender has really only shown remorse for the effects of his conduct on those close to him, albeit, that includes Mr McCulloch's and Ms Duley's children. Perhaps that is because of the nature of the conflict that led to the offending.
He has plainly accepted responsibility for his actions. From the time that he offered to plead guilty to manslaughter, he has acknowledged that he killed Mr McCulloch. He has further acknowledged the hurt and loss to Mr McCulloch's and Ms Duley's children.
I have regard to the difficulties that the offender experiences in custody in the sense that he has received threats and has ongoing concerns for his safety.
I find special circumstances on that basis and on the basis that the offender will need a longer period on parole with an ongoing need for medical supervision and the likely need to relocate. Having said that, the reduction in the non-parole period is limited as I am satisfied that the non-parole period I am imposing is appropriate in all the circumstances, having regard to the seriousness of the offending and the level of criminality.
The hardship that arises from the offender's separation from his children and, indeed, the fact that Ms Abercrombie has indicated that she has ended the relationship, are not factors that I take into account. Separation from and the breakdown of relationship with loved ones is often a sad fact of incarceration. It is not a mitigating factor.
Similarly, the hardship to the offender's children is, again, the type of hardship which is unfortunately common, particularly in circumstances in which the nature of the offending is of such severity and warrants a significant period in detention, but it is not a mitigating factor.

Discount

The offender first offered a plea of guilty to manslaughter on 27 June 2019. According to law, he is entitled to a discount for the utilitarian value of that plea.
The offender submits that he should receive the full 25% discount on the basis that he offered a plea of guilty to manslaughter at the earliest possible opportunity after Mr Terracini was retained (and, inferentially, gave him advice to do so).
The Crown Prosecutor suggests that a discount should only be 20%.
I have had regard to perhaps the factual complexity of the partial defences raised but, in my view, that posed no barrier to the offender offering the plea at the earliest possible stage. In my view, a discount of 20% is appropriate.

The sentence

The offence carries a maximum penalty of 25 years. There is no standard non-parole period.
The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform.
As observed in Veen v The Queen (No 2), [10] those purposes overlap and none can be considered in isolation when determining what an appropriate sentencing is in a particular case.
In the process of intuitive synthesis which is the sentencing process, I have had regard to the objective seriousness of the offending, as well as the offender's subjective circumstances. I consider that the principles of general deterrence and denunciation are important. I consider that a slightly longer period on parole is appropriate, having regard to my finding of special circumstances.
Of course, I emphasise that I am sentencing for manslaughter and not murder and that the offender accepted his responsibility at an early stage.
Justin Fuller, for the offence of manslaughter of which you have been found guilty by a jury, I impose a sentence of imprisonment consisting of a non-parole period of 6 years and 3 months with a balance of term of 2 years and 9 months. The sentence will date from 19 December 2018. The offender will become eligible for parole when the non-parole period expires on 18 March 2025. That is a total sentence of 9 years. It would have been a sentence of 11 years and 3 months but has been reduced by 20% because of the offender's early plea of guilty.
As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence: s 25C. I ask the offender's solicitor to undertake that task on the Court's behalf.

Endnotes

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[14].
(1997) 41 NSWLR 374 at 381.
R v Mohamad Ali [2005] NSWSC 334 at [47] (Wood CJ at CL).
Ali at [56].
R v Welsh [2004] NSWSC 111; 142 A Crim R 140; Ali at [56]; R v Van Xuan Nguyen [2005] NSWSC 600 at [24].
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995) at 4 (Gleeson CJ); R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; 156 A Crim R 372.
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [49] (Howie J).
R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; GG v R [2018] NSWCCA 280 at [60].
(1988) 164 CLR 465 at 476; [1988] HCA 14. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)

Cited By (4)