Courts Must Apply a 25% Sentencing Discount for All Early Guilty Pleas

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By Paul Gregoire and Ugur Nedim

On the afternoon of 19 December 2018, Belmont South resident Guy McCulloch suddenly reversed his car towards Justin Fuller, who was in pursuit of it on foot. Holding two machetes, Fuller then reached in and stabbed the driver five times, with one blow penetrating McCulloch’s liver fatally.

Fuller was concerned that his partner, Narelle Abercrombie, may have been in danger in the back of McCulloch’s vehicle, after the latter’s associate in the years-long local neighbourhood spat, Gregory Gay, had suggested to Fuller that her safety was being threatened by McCulloch and himself.

The feud began back in September 2014, when the caravan of Kristy Duley, Fuller’s half-sister and McCulloch’s partner, was allegedly set on fire by her half-brother. Duley then set fire to Fuller’s four-wheel drive the following month, with the flames having damaged Abercrombie’s house.

Over the succeeding years, there had been multiple incidents serving to heighten the dispute between Fuller and McCulloch, including Duley threatening her mother in her workplace and her having also driven past Fuller’s residence on multiple occasions, yelling threats of violence.

After he fatally stabbed his long-term adversary, Fuller fled the scene and headed back to his own home. And on being arrested a short time later, the offender told police that he was sick of the persistent threats that had been scaring his children and his partner.

Early plea of guilt

Fuller pleaded not guilty to the murder of McCulloch, before NSW Supreme Court Justice Richard Cavanagh on 3 August 2020. But he did plead guilty to manslaughter. Although the Crown didn’t accept the plea to the lesser offence and a trial for murder commenced.

Section 18(1)(a) of the Crimes Act 1900 (NSW) contains the offence of murder, which constitutes an act or an omission that results in the ending of the life of another, whether the accused did this intentionally or recklessly. And it carries a maximum of life imprisonment or 25 years inside.

The crime of manslaughter is contained in section 18(1)(b) of the Crimes Act 1900, which constitutes the offence of having caused the unlawful death of another that’s punishable despite it not being murder. The difference is manslaughter doesn’t involve premeditation or malice.

There are three broad categories of manslaughter: by unlawful and dangerous act, by criminal negligence and by excessive self-defence.

Section 24 of the Crimes Act provides that the maximum penalty for manslaughter is 25 years imprisonment.

Fuller raised the defences of extreme provocation and excessive self-defence. Available under section 23 of the Act, extreme provocation posits that an individual accused of murder took a life due to the extreme and criminal actions of the deceased which caused them to lose self-control.

On 2 September 2020, the Supreme Court jury returned a verdict of not guilty of murder but guilty of manslaughter.

And Justice Cavanagh sentenced Fuller to 9 years imprisonment on 16 October, with non-parole set at 6 years and 3 months. This sentence reflected a 20 percent discount due to the utilitarian value of Fuller’s early guilty plea.

Appealing the sentence

Fuller appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 2 May 2022, based on 3 grounds.

The first was that, according to the legislation, the early guilty plea discount was not enough, while the second ground asserted that a finding of objective seriousness in the “higher range” was wrong, and the third considered the sentence was manifestly excessive.

In terms of the first ground, Fuller’s legal team pointed to section 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), claiming it makes it mandatory for an individual in the circumstances of their client to have received a 25 percent discount as a result of their early plea of guilt.

However, the prosecution countered that assertion as while Fuller had pleaded guilty to manslaughter in the Local Court, he did so without making “any disclosure of the degree of culpability or factual basis for such a plea”, and the Crown couldn’t accept it in that context.

Discount not applied

NSWCCA Justice Natalie Adams cited the argument made by Acting Justice Carolyn Simpson in the 2022 NSWCCA case Black versus R, in which the laws governing early guilty pleas were considered, as set out in part 3 division 1A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

Simpson raised section 25D(2)(a) of the Sentencing Act, as it stipulates that the discount for a guilty plea should be “a reduction of 25 percent in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence”.

And section 25E outlines that a sentencing discount may be applied to pleas in certain cases, where the offence pleaded to was not that officially offered, but it was a reasonable alternative to that offered, and that 25 percent would have been the discount if that offence was offered.

Justice Adams noted that prior to the passing of the 2017 amendments that inserted part 3 division 1A into the Sentencing Act, there had been room for discretion in terms of discount applied to a plea made at a certain time during proceedings. However, now the discount triggered is mandatory.

“In Black, the question of the relevant discount turned on the proper construction of the new provisions,” her Honour found. “The fact remains that the applicant should have been afforded a discount of 25 percent and was not.”

The Crown conceded that, based on the argument in Black, the first ground was made out, and a 25 percent discount should have applied. And Justice Adams then considered the final two grounds and found they were not made out.

Correct discount applied

In her 19 September 2022 final findings, Justice Adams determined that as the last two grounds were not made out, then the appropriate course was to discount 25 percent from the original sentence imposed by Justice Cavanagh, in place of the 20 percent he’d originally applied.

This was underscored by the fact that the objective seriousness of the offence was of the “higher range”, and therefore, the sentence imposed was not exceedingly excessive.

Her Honour ordered that the original sentence be quashed, and with the stipulated 25 percent discount then being applied, the correct sentence was 8 years and 4 months, with a non-parole period of 5 years and 8 months.

NSWCCA Justices Paul Brereton and Christine Adamson agreed with their colleague’s orders.

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