Fuller v R [2024] NSWCCA 106

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v R [2024] NSWCCA 106 Hearing dates: 5 June 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Before: Mitchelmore JA at [1]; Sweeney J at [58]; Huggett J at [59] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence of imprisonment imposed on the applicant in the District Court on 6 November 2023. (4) In lieu thereof, sentence the applicant to a non-parole period of 2 years and 3 months commencing on 29 October 2022 and expiring on 28 January 2025, with a balance of a term of 9 months, expiring on 28 October 2025. The total term is 3 years' imprisonment. (5) The earliest date upon which the applicant will be eligible for release to parole is 28 January 2025. Catchwords: SENTENCING — procedural fairness — where parties proceeded on basis that the applicant had made frank admissions to his own offending conduct in an ERISP — whether sentencing judge failed to provide an opportunity to the applicant to address adverse findings made about his responses in the ERISP SENTENCING — relevant factors on sentence — remorse and contrition — whether sentencing judge failed to consider the applicant's early guilty plea and unchallenged evidence of remorse and contrition Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3)(i), 32, 68(1) Crimes Act 1900 (NSW), ss 111(1), 117, 154F Cases Cited: 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 Category: Principal judgment Parties: Nathan Fuller (Applicant) Rex (Respondent) Representation: Counsel: A Norrie (Applicant) E Wilkins SC (Respondent)