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Court of Criminal Appeal 9 December 2016

R v Lulham

[2016] NSWCCA 287

Also reported as (2016) 263 A Crim R 287
Assault & violence
CRIMINAL LAW SENTENCE RANGE SENTENCE SENTENCE THE RESPONDENT WHERE THE NON

Citation: R v Lulham [2016] NSWCCA 287
Court: Court of Criminal Appeal, NSW
Date: 9 December 2016
Judges: Bathurst CJ, Beazley P, Hall J, Bellew J, Adams J

Background

The respondent pleaded guilty in the Local Court to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The offending arose from a violent assault on a man with whom the respondent shared a home, committed after the respondent learned the victim had been physically assaulting the victim's wife (who had dementia and was wheelchair-bound) and sexually touching the victim's adult stepdaughter. The respondent had lived with the household for many years and felt intensely protective of the women. He had no prior record for violence.

On 11 March 2016, the District Court sentenced the respondent to 2 years imprisonment with a non-parole period of 1 month and 13 days, backdated to commence from 6 February 2015 (the date of arrest). The practical effect was that the sentence had almost fully expired by the time of the appeal. The non-parole period had long passed, and the parole period was nearing its end.

The Deputy Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate.

  • Whether the sentence imposed was manifestly inadequate, given the sentencing judge's own finding that the offence was slightly below mid-range in objective seriousness.
  • Whether the sentencing judge gave undue weight to the respondent's subjective circumstances.
  • Whether there was a proper evidential basis for the finding of special circumstances (justifying a departure from the standard ratio of non-parole period to total sentence).
  • Whether, even if manifest inadequacy was established, the Court should exercise its residual discretion to decline to intervene and re-sentence the respondent.
  • What constitutes the preferable practice when backdating a sentence to account for pre-sentence custody.
  • Whether an offence committed at the top of a driveway can be treated as occurring at the victim's "home" for the purposes of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court unanimously found the sentence manifestly inadequate. The sentencing judge had assessed the offending as slightly below mid-range in objective seriousness, yet the sentence imposed was dramatically below what that assessment warranted. The sentencing judge had given undue weight to the respondent's subjective case, and there was no adequate evidential basis for the finding of special circumstances.

On special circumstances, the judges offered slightly differing formulations. Bellew J held that a sentencing judge must be satisfied there are significant positive signs showing that rehabilitation is likely to succeed (not merely possible) if a longer parole period is allowed. Bathurst CJ and Beazley P accepted that principle as broadly correct but cautioned it should not be applied in an unqualified manner across all cases, particularly where sentences are long and rehabilitation prospects are difficult to assess at the time of sentencing.

Despite establishing manifest inadequacy, the Court exercised its residual discretion to dismiss the Crown appeal without re-sentencing the respondent. By the time of the appeal, the non-parole period had long expired and the parole period was about to conclude. The respondent had complied with all parole conditions and had made genuine rehabilitative progress. Resentencing in those circumstances would have served no practical sentencing purpose and would have been unjust.

On the backdating question, the Court identified an error in the sentencing judge's approach. Rather than backdating the sentence by 1 month and 13 days to account for the respondent's actual pre-sentence custody, the judge backdated it by over a year, inadvertently treating time spent on bail as equivalent to time in custody. The Court confirmed that expressly backdating a sentence to reflect actual pre-sentence custody is the preferable practice, as it makes transparent to the offender that the time has been credited.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Manifest inadequacy was established where there was a significant disparity between the sentencing judge's own assessment of objective seriousness and the sentence actually imposed, combined with undue weight being given to subjective factors.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the residual discretion to decline to re-sentence exists even where manifest inadequacy is made out, and may be exercised where an offender has substantially served their sentence, complied with parole, and made genuine rehabilitative progress.

  • A finding of special circumstances requires an evidential foundation: the sentencing court cannot make such a finding in favour of an offender where the evidence before it does not support a conclusion that a longer parole period would assist rehabilitation.

  • The preferred formulation on special circumstances and rehabilitation (as expressed by Bathurst CJ and Beazley P) is that evidence must show rehabilitation prospects would be assisted by a longer parole period, though that principle must be applied with flexibility depending on the length of the sentence and the stage at which rehabilitation can realistically be assessed.

  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence should be backdated only by the period of actual pre-sentence custody; backdating beyond that period risks crediting bail time as though it were time in custody, which is an error unless bail conditions were equivalent to quasi-custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 24(a), 47(2)(a), 47(3)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Dashti [2016] NSWCCA 251
- Jonson v R [2016] NSWCCA 286
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- CMB v Attorney-General for NSW (2015) 317 ALR 308; [2015] HCA 9
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Power v R (1974) 131 CLR 623; [1974] HCA 26
- Wiggins v R [2010] NSWCCA 30
- Salafia v R [2015] NSWCCA 141
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v Eastway (unreported, NSWCCA, 19 May 1992)
- R v Bavadra [2000] NSWCCA 292
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146