R v Fuller (No 2)

1. [1]

   HIS HONOUR: On 14 June 2016, the Court as presently constituted, sentenced Owen Junior Fuller (“Mr Fuller”). The Court, in effect, sentenced Mr Fuller to a head sentence of 24 years’ and 6 months imprisonment, commencing 4 March 2015 including a non-parole period of 17 years’ imprisonment.

2. [2]

   Both the Crown and Senior Counsel for Mr Fuller have approached the Court to address an issue in the proceedings. For that purpose the sentencing hearing was re-opened and submission put by each counsel.

3. [3]

   Counsel each submit that the Court should correct the sentence imposed as the sentence imposed is contrary to law, in the absence of a finding of special circumstances. It is necessary to set out the history of the matter including the reasons for the error.

Sentence History

1. [4]

   Mr Fuller was sentenced after a plea of guilty to the offence of murder. These reasons should be read with the Remarks on Sentence (also known as the Sentencing Reasons for Judgment) R v Fuller [2016] NSWSC 815 (“the Remarks”).

2. [5]

   At [34]-[39] of the Remarks, the Court described the offence as particularly serious, but not the most serious that warranted an indeterminate sentence. The Court also remarked that were it not for the youth of the offender, a more severe sentence would have been warranted.

3. [6]

   The putative starting point was a head sentence of 32 years’ imprisonment, which, after discount for the plea of guilty of something slightly less than 25%, resulted in a head sentence of 24 years’ and 6 months imprisonment. A non-parole period of 17 years’ imprisonment was imposed.

4. [7]

   At [40] of the Remarks, the Court made clear that it was not finding special circumstances and no such finding was made. Further, the Court made clear in the Remarks that an extended period of parole was unnecessary.

5. [8]

   The reference to an extended period of parole is a reference, in sentencing proceedings or remarks on sentence, to a shorter non-parole period than would be the case, if the prescribed ratio of non-parole period to the balance of the term of the sentence were to apply.

6. [9]

   There can be little doubt given the comments of the Court at [40] of the Remarks that the Court intended to apply the statutorily prescribed ratio. Moreover, given the structure of the sentence and the stated starting point of 32 years’ before discount, it cannot be doubted that the head sentence intended to be imposed was 24 years’ and 6 months imprisonment.

7. [10]

   The provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) requires the Court first to set a non-parole period: s 44(1) of the Act. The terms of s 44(2) of the Act require the Court to set a balance of term that does not exceed one-third of the non-parole period, unless the Court decides there are special circumstances. Arithmetically, one third of the non-parole amounts to one quarter of the head sentence.

8. [11]

   One quarter of the head sentence of 24 years’ and 6 months is 6 years’ and 1.5 months. The balance of term imposed by the Court was 7 years’ and 6 months and exceeded the maximum balance of term (6 years’ and 1.5 months). As a consequence, the sentence imposed is wrong in law and inconsistent with s 44(2) of the Act.

9. [12]

   The error occurred as a result of calculating (and rounding) 70% of the head sentence instead of 75%. It was, in every sense, an error of arithmetic or calculation.

10. [13]

    Counsel submit that the Court should correct the calculation error by fixing a non-parole period of 18 years’ and 4 months being three-quarters of 24 years’ and 6 months (after rounding). This is an agreed position, although each counsel reaches that conclusion by a different path.

The Submissions

1. [14]

   The Crown submits that the error is one to be corrected under the “slip rule”, by which submission the Crown refers to the inherent or implied powers of a superior court of record to correct judgments issued. I will come to that power later in these reasons. The Crown submits that s 43 of the Act does not allow correction of the error.

2. [15]

   Counsel for Mr Fuller submits that the error can and should be corrected under s 43 of the Act. It is appropriate to recite the manner by which counsel has reached that conclusion.

3. [16]

   First, counsel submits that pursuant to the terms of s 44(3) of the Act, the sentence imposed is not invalidated by reason of a failure to comply with s 44(2) of the Act. Next, the submission notes that more than a mere error of law or fact is required to engage the operation of s 43(2) of the Act.

4. [17]

   Relying on the judgment of the High Court in Achurch v The Queen (2014) 253 CLR 141; 236 A Crim R 427; [2014] HCA 10 at [32] and [36], it is submitted that a narrow construction of s 43 of the Act ought to be applied: Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9 at [36].

5. [18]

   Nevertheless, counsel submits that a sentence imposed contrary to s 44(2) of the Act involves more than mere error of law. Such a sentence is, while valid, impermissible. Absent a decision as to special circumstances, the sentence imposed is “contrary to law”, namely inconsistent with an express requirement of the law: Wise v R [2006] NSWCCA 264 at [14], per Rothman J (Spigelman CJ and Howie J agreeing).

Consideration

1. [19]

   The issue between the parties at this time is the method by which the Court corrects the sentence imposed. There is no issue as to the correction that should be effected.

2. [20]

   Further, counsel for Mr Fuller, understandably, reminds the Court of the effect of not correcting the sentence. The correction “will avoid the need to incur the cost, delay and expense in having to institute an appeal”.

3. [21]

   The Court, as a superior court of appeal, has certain limited powers to correct judgments after entry. The sentence imposed has been entered.

4. [22]

   The Court of Criminal Appeal in R v Jones; R v Hili (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195, after determining that the Court of Criminal Appeal is a superior court of record, commented (Per Rothman J, McClellan CJ at CL agreeing):

5. [23]

   There are other statements to similar effect. Of note is that the correction effected in Hili & Jones, supra, was to the wording of the reasons for judgment; not the terms of the judgment; nor the reasons, as distinct from the wording thereof.

6. [24]

   The power confirmed by s 43 of the Act is a power to re-open the sentence hearing relevantly in circumstances where the Court “has imposed a penalty that is contrary to law”: s 43(1) of the Act. The power to re-open conferred by s 43 of the Act is to allow the court, relevantly, to “impose a penalty that is in accordance with the law”.

7. [25]

   The terms of the Act do not allow the correction of the reasons for judgment or the remarks on sentence. Nor does the Act permit the corrections of the determination of any necessary precondition to the imposition of sentence, unless such a determination is part of the sentence imposed.

8. [26]

   In the present situation, a sentencing judge could not utilise the provisions of s 43 of the Act to alter the decision on the existence of special circumstances. This would be so, even if there were error of law manifest in the determination. It is unnecessary to venture into the possibility of a simple omission of such a finding, where the intention is otherwise manifest. However, such an issue may be corrected by other means, to which the Court will come.

9. [27]

   The subject of the examination by the Court is the sentence (or more accurately, the penalty) and it is the penalty that may be amended under the powers conferred by the provision.

10. [28]

    In construing any statutory instrument, the Court is required to give effect to the legislative intention as discerned from the words used; their context; the purpose of the legislation; and the achievement of harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] and [70]. The principles are well-known and need no further repetition: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14].

11. [29]

    Counsel for Mr Fuller relies on the comment of the Court of Criminal Appeal in Wise v R, supra, which is to the following effect:

12. [30]

    The first sentence of the foregoing comment was not necessary for the determination of the Court. Nevertheless, it is, at least, persuasive: Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.

13. [31]

    The common law jurisdiction of a superior court of record does not permit the correction or amendment of a judgment that has been entered merely to correct legal error (even manifest error) unless, by coincidence, the error is one able to be corrected pursuant to the principles recited at [22] above. The purpose of s 43 of the Act is principally “to correct manifest error” in the sentence, when manifested in the record: Achurch v The Queen, supra.

14. [32]

    The purpose described by the Court of Criminal Appeal in Achurch v R (No 2) (2013) 84 NSWLR 328; [2013] NSWCCA 117 and summarised above returns the Court to “the record”: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [21], Achurch v R (No 2), supra, at [66]. For the purposes of s 43 of the Act, the record does not extend to the reasons for judgment: cf. s 69(4) of the Supreme Court Act 1970.

15. [33]

    This issue was historically examined for the purpose of the issue of writs of certiorari: see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [56] – [59]. Notwithstanding the comment of the High Court in Kirk, supra, at [100], the jurisdiction of the Supreme Court to correct error of law on the face of the record of an inferior court or tribunal was an inherent jurisdiction and inheres in the Court with supervisory or common law appellate jurisdiction: see Kirk, supra, at [57] and [59], citing, with approval, Sawer, “Error of Law on the Face of an Administrative Record”, (1956) 3 University of Western Australia Annual Law Review 24 at 34-35 and Darlow v Shuttleworth [1902] 1 KB 721 at 726. See also Marbury v Madison 5 U.S. 137 (1803).

16. [34]

    The variations in the application or inapplicability of certiorari derived not from the lack of jurisdiction in the supervisory court, but in the alteration of that which was held to form part of the record. Courts, otherwise denied a record in which to find error, would utilise, for example, the use of the term “for the foregoing reasons”, in the preamble to orders issued, as importing into the record the reasons for judgment, allowing those reasons to be utilised for the purpose of disclosing error of the requisite kind.

17. [35]

    That casuistry is not relevant for present purposes. Nor are the provisions of s 69(4) of the Supreme Court Act. The “record” is the content of any order or judgment (as distinct from the reasons for judgment). It is impermissible for a court to utilise s 43 of the Act to overcome a difficulty or legal error in the reasons for judgment: Burrell v The Queen, supra.

18. [36]

    It is then necessary to examine that which forms part of the record in the sentence hearing. The reasons are not, ordinarily, part of the record. Nor is the transcript of proceedings.

19. [37]

    In a superior court of record, the record consists of all judgments issued. That record may or may not have been perfected, but the record consists, at least, of all orders issued.

20. [38]

    An order is the Court’s adjudication on an issue before it and includes a decision to refuse to make an order. It includes a refusal to adjourn: Maxwell v Keun [1928] 1 KB 645; Haset Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47; Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1.

21. [39]

    I dealt with this issue in Kostas & Anor v HIA Insurance Services Pty Ltd trading as Home Owners Warranty & Anor [2007] NSWSC 315 in which I said:

22. [40]

    The determination of the Court that there are or there are not special circumstances is an adjudication between the parties on a matter that is required to be determined and, as such, forms part of the record. The determination could (and possibly should) be included in the formal orders on sentencing, in the same way as a judicial officer would or may record a conviction as part of the formal orders. Even when the conviction is not formally placed in the orders, it necessarily forms part of the orders issued (except, of course, where a conviction is deliberately not recorded, in which case that decision forms part of the record).

23. [41]

    As such the determination by the Court of the existence of special circumstances is an order of the Court and forms part of the record. It is unnecessary to discuss whether a situation in which a court has overlooked the necessity to determine special circumstances falls into the same category, but I doubt that it would. The provisions of s 43 of the Act allow correction of the sentence; not the record. Thus, the determination of the existence of special circumstance (or otherwise) informs the existence of legal error but, even though part of the record, is incapable of being varied under those provisions.

24. [42]

    In the present case, the Court has determined that no special circumstances exist and that there is no need for a shorter non-parole period than would result from an application of the statutory ratio. The sentence imposed did not reflect that intention because of a miscalculation of the ratio.

25. [43]

    In my view, as a result of an examination of the record, and only the record, the sentence imposed is contrary to law and remediable under the provisions of s 43 of the Act. The sentence imposed was contrary to law because it was, on an examination of the record itself, without power, in the absence of a finding of special circumstances: Achurch v The Queen, supra.

26. [44]

    If the foregoing analysis be incorrect, it does not mean that the Court is without remedy. Because the Court has the powers of a superior court of record, it has available to it, the capacity to correct the judgment for miscalculation under the “slip rule”.

27. [45]

    As earlier stated, the “slip rule” is often, and above, used to summarise the powers available to correct errors, namely:

28. [46]

    As the Crown has correctly submitted, the error in the sentence imposed is also as a result of an error of computation and may be remedied under both (a) and (b) above. A court may arrive at a sentence that is contrary to law by a “slip”, and that, in my view, provides a superior court of record, at least, with the capacity to correct the error by following fundamentally different paths.

29. [47]

    A sentence that is contrary to law may be corrected by utilising the powers granted by s 43 of the Act, even though the contravention has been obtained by computational error. Conversely, an order may be corrected by a superior court of record utilising its powers under the “slip rule”, even though the slip has resulted in a sentence “contrary to law”. In rare cases, such as this, each power is available.

30. [48]

    One further matter needs comment. These reasons refer to the “slip rule” being available to a superior court of record. The Court, by implication or otherwise, is passing no comment on the power of other courts or tribunals. Given the circumstances in this case, such a comment would be wholly unnecessary and most undesirable: Burrell v The Queen, supra, at [13].

31. [49]

    It is clear that the intention of the Court was not to find special circumstances, nor to have a longer period than the statutory ratio would provide as the period during which Mr Fuller was eligible for parole.

32. [50]

    In those circumstances, the following applies:

33. [51]

    As earlier stated, the parties agree as to the method by which this error should be corrected. Once more I congratulate counsel for the thoroughness and competence of their submissions.

34. [52]

    The Court makes the following order:

    1. (1)

       Order (3) issued on 14 June 2016 is deleted and, in lieu thereof, the following varied sentence is imposed and order substituted: