Citation: Regina v Lulham [2002] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 21 June 2002
Judges: Spigelman CJ, Simpson J, Blanch AJ
Background
The applicant, a 34-year-old farm hand, pleaded guilty to the murder of a man he and his half-brother had a longstanding conflict with. On the day of the offence, the applicant obtained a rifle from his employer, drove his half-brother to the location where the victim was sleeping, and did so knowing his half-brother intended to kill the victim if he was still there. The half-brother carried out the shooting. The applicant was subsequently sentenced by Greg James J in the Supreme Court to 18 years' imprisonment with a non-parole period of 13.5 years.
The sentencing proceedings were complicated by the applicant's failed attempt to withdraw his guilty plea and by disputed facts that required witnesses to be called. The sentencing judge found limited evidence of contrition and gave only a modest discount for the guilty plea. The applicant's half-brother, who had pleaded guilty and cooperated as a witness, received a shorter sentence of 16 years with a minimum term of 12 years.
The applicant sought leave to appeal on three grounds: the weight given to his guilty plea, parity with the sentence imposed on his half-brother, and the sentencing judge's failure to account for the more onerous conditions of protective custody.
Legal Issues
- Whether the sentencing judge gave insufficient weight to the applicant's guilty plea, having regard to the principles in R v Thomson and Houlton
- Whether the disparity between the applicant's sentence and his half-brother's sentence was unjustified, given the comparable levels of culpability
- Whether the sentencing judge erred by failing to account for the fact that the applicant was held in protective custody, which is recognised as a more onerous form of custody
Decision
On the guilty plea, the Court accepted that the sentencing judge correctly identified that the applicant's application to withdraw the plea, and the absence of demonstrated contrition, justified limiting the discount. The judge had acknowledged some utilitarian benefit from the plea under section 22 of the Crimes (Sentencing Procedure) Act 1999, but declined to extend that discount further given the circumstances. The Court found no error in this approach.
On parity, the Court noted the significant differences between the two offenders' positions. The half-brother had pleaded guilty, gave evidence for the prosecution, and received a substantial sentencing discount as a result. The applicant offered no such cooperation and showed no contrition. The Court also noted that the applicant was approximately ten years older than his half-brother. Given these distinguishing factors, the sentence differential was not considered unjust.
On protective custody, the Court found that the matter had been mentioned only cursorily by the applicant's original counsel in December 1999, was never supported by evidence, and was never raised again before sentence was passed months later. The sentencing judge made no reference to it, which was unsurprising in the circumstances. The Court was not satisfied this constituted error on the judge's part.
The Court went further and considered whether, even if the failure to account for protective custody were treated as an error, it would have warranted a different sentence. Having regard to all circumstances, including the overall sentence, the Court concluded that no different sentence should be imposed. Leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A guilty plea discount may be significantly reduced where the offender attempts to withdraw the plea and where there is no meaningful evidence of contrition, even if some utilitarian benefit from the plea is acknowledged.
- Parity between co-offenders does not require equal sentences where there are material differences in culpability, cooperation, and the discounts earned by each offender's conduct.
- Protective custody is recognised as a more onerous form of imprisonment than the general custodial system, but a sentencing court cannot be expected to take that fact into account unless it is properly raised, supported by evidence, and kept before the court.
- No error was established where protective custody had been mentioned only briefly in earlier proceedings, never substantiated, and never drawn to the sentencing judge's attention at the time of sentence.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that it may consider whether an alleged error, even if made out, would have produced any different result, and decline to intervene where it would not.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- R v Thomson and Houlton [2000] NSWCCA 300; (2000) 49 NSWLR 383
- R v Davies (1978) 68 CAR 319
- R v Perez-Vargas (1986) 8 NSWLR 559