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Court of Criminal Appeal 20 August 2003

Lupton v Regina

[2003] NSWCCA 200

Sexual offences
APPEAL AGAINST SENTENCE SEXUAL ASSAULT TWO SEPARATE COMMITTALS MULTIPLE COUNTS IN EACH COMMITTAL COMPLAINTS BY VICTIMS VOLUNTARY DISCLOSURES BY APPLICANT

Citation: Lupton v Regina [2003] NSWCCA 200
Court: New South Wales Court of Criminal Appeal
Date: 20 August 2003
Judge(s): Sheller JA, James J, O'Keefe J

Background

The applicant, a stepfather, was sentenced in the District Court on 33 charges of sexual assault committed against his three stepdaughters over a nine-year period between 1990 and 1999. The charges spanned two separate committals for sentence: 20 counts arising from complaints made by the victims, and 13 counts arising from voluntary disclosures the applicant made during a sex offender programme.

The applicant had pleaded guilty to the first committal charges in October 1999. The sentencing judge allowed a 20 percent discount for the early guilty plea in the first committal and a 25 percent discount in the second. However, the judge was not satisfied that the applicant was truly remorseful or contrite, a finding that influenced the overall approach to sentence.

The combined effect of the sentences imposed was a total period of imprisonment from September 2001 to September 2011 (ten years), with the applicant ineligible for parole for eight of those years. This produced an effective non-parole period of 80 percent of the overall term, which the applicant challenged on appeal.

  • Whether the sentencing judge was prohibited from setting an effective non-parole period exceeding 75 percent of the head sentence under section 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether special circumstances existed that required the non-parole period to be set at less than 75 percent of the overall term
  • Whether the discount allowed for the pleas of guilty, and for the voluntary disclosures, was adequate
  • Whether a less severe sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912

Decision

O'Keefe J, with whom Sheller JA and James J agreed, rejected the submission that section 44(2) imposed a ceiling of 75 percent on the non-parole period. The provision states that the non-parole period "must not be less than" three-quarters of the sentence term. Nothing in the legislation prohibits the court from fixing a non-parole period that exceeds that proportion. The 75 percent figure is a floor, not a cap.

On special circumstances, the Court found no error in the sentencing judge's refusal to make such a finding. The mere fact that a matter or circumstance is capable of constituting special circumstances does not compel a finding in any particular case. The serious nature of the offending, its duration, the applicant's position of authority over the victims, the absence of accepted remorse, and his breach of undertakings not to contact the victims or their families all provided adequate justification for the judge's approach.

The Court also rejected the complaints about the discounts for guilty pleas and voluntary disclosures. The judge had recognised those factors and applied them appropriately. The voluntary disclosures made during the sex offender programme attracted a higher discount (25 percent) than the guilty pleas in the first committal (20 percent), reflecting the different circumstances of each.

Finally, the Court was not persuaded that a different sentence was warranted in law within the meaning of section 6(3) of the Criminal Appeal Act 1912. The sentence imposed was described as far from excessive, and there was no basis for appellate intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, the three-quarters ratio operates as a minimum threshold for non-parole periods, not a maximum. A court may lawfully impose a non-parole period exceeding 75 percent of the head sentence.
  • A finding of special circumstances is not mandatory whenever a qualifying matter is present. Whether special circumstances are found depends entirely on the facts of each individual case.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the seriousness and duration of offending, the abuse of a position of authority, a finding of absent remorse, and post-offence conduct (such as breaching non-contact undertakings) can together justify declining to find special circumstances.
  • Voluntary disclosure of offending, such as confessions made during a rehabilitation programme, may attract a greater sentencing discount than an early guilty plea, reflecting the distinct significance of that conduct.
  • Appellate intervention under section 6(3) of the Criminal Appeal Act 1912 requires the court to form a positive opinion that some other sentence is warranted in law and should have been passed. It is not enough to identify a possible error in the sentencing process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 66 (including ss 61J, 61M, 61O, 66A, 66C)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Power v The Queen (1973) 131 CLR 623
- Regina v Bushby (1977) 1 NSWLR 594
- Regina v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272
- Regina v Simpson (2001) 53 NSWLR 704
- Rex v Geddes (1936) 36 SR (NSW) 554