Citation: Regina v Lulham [2000] NSWSC 703
Court: Supreme Court of New South Wales (Criminal Division)
Date: 18 July 2000
Judge: Greg James J
Background
The offender pleaded guilty to the murder of a man at a swimming hole near Beechwood, a small rural community on the New South Wales mid-north coast, on 12 November 1998. The killing was carried out by a co-accused referred to by the pseudonym "DT," who shot the sleeping victim at close range with a .22 rifle. The offender did not pull the trigger but played a central role in the events leading to the death.
The facts established at the sentencing hearing showed that the offender had suggested the killing to DT, obtained the firearm and ammunition from his employer, drove DT back to the scene after discussions about killing the victim, and assented to DT proceeding with the shooting. The offender also provided transport away from the scene and was present throughout.
The offender contested the degree of his culpability relative to DT. In particular, he challenged an earlier finding made during DT's sentencing that the offender had procured DT and manipulated him into carrying out the murder. That factual dispute required a separate hearing before sentence could be passed on the offender.
Legal Issues
- What were the respective roles and levels of culpability of the offender and his co-accused DT?
- How should the parity principle apply when sentencing an accessory whose culpability is comparable to, but arguably slightly less than, that of the principal offender?
- What sentence was appropriate having regard to DT's sentence of 16 years (minimum 12 years) and all relevant circumstances?
Decision
The Crown accepted at the hearing that the offender and DT should be treated as equally culpable, and did not press the earlier finding that the offender had manipulated or procured DT in the stronger sense found at DT's sentencing. The court proceeded on the basis that both men bore comparable responsibility for the murder.
The court found, however, that there was "little to choose" between the two offenders. Although the offender was not the person who physically shot the victim, his role was substantial. He had suggested the killing, procured the weapon, driven DT to the scene, and assented to the shooting. His assent constituted at least encouragement, and the court found that the killing would not have occurred without his procurement of the firearm and his driving DT to the location.
The court applied the parity principle (which requires that co-offenders not receive sentences that are unjustifiably disparate) but concluded that parity did not demand an identical sentence to DT's. Because the offender was not the actual shooter, a modestly higher sentence than DT's was imposed rather than an equal one, reflecting the fine distinction in their roles while still respecting the principle.
The court imposed a sentence of 18 years' imprisonment with a non-parole period of 13 and a half years, both dating from 14 November 1998, the date the offender was taken into custody. The court found no special circumstances that would warrant departing from the standard statutory proportion between the non-parole period and the total sentence.
Orders Made
- A pseudonym order was made directing that a witness be referred to as "DT" in published remarks and any published transcript.
- The offender was sentenced to imprisonment for 18 years, commencing 14 November 1998.
- A non-parole period of 13 and a half years was set, also commencing 14 November 1998.
- The offender became eligible for release on parole on 13 May 2012, with the sentence expiring on 13 November 2016.
Key Takeaways
- The parity principle does not automatically produce identical sentences for co-offenders of comparable culpability. Where one offender is the actual killer and another is an accessory, even a fine distinction in roles can justify a modest difference in sentence, provided the overall outcome is not unjustifiably disparate.
- An accessory's culpability can approach that of the principal where the accessory suggested the killing, obtained the murder weapon, transported the principal to the scene, and assented to the shooting proceeding.
- Where factual findings made at an earlier co-accused's sentencing are contested by a subsequently sentenced offender, the court is required to conduct a separate hearing to determine the relevant facts before passing sentence.
- A sentence significantly higher than that of the principal offender is not automatically required simply because the accessory is found to have instigated or organised the offence. The court weighed all circumstances and arrived at a sentence only modestly above DT's 16-year term.
- Under the Crimes (Sentencing Procedure) Act 1999, time spent in pre-sentence custody is taken into account, and the sentencing date runs from the date of arrest rather than the date of the sentencing hearing.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44(2)
Cases
- Previtera (1997) 94 A Crim R 76
- Postiglione (1997) 98 A Crim R 134
- Hodges (1997) 95 A Crim R 85