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31
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
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 occurred on 6 February 2015, when the respondent struck the victim twice with a claw hammer at the victim's home, causing significant injuries. The attack was not spontaneous: it followed an earlier confrontation, damage to the victim's property, and the sending of threatening text messages in the intervening period.

The respondent had no adult criminal history and was assessed as having genuine remorse and good rehabilitation prospects. At sentencing in the District Court on 11 March 2016, he was sentenced to 2 years imprisonment with a non-parole period of just 1 month and 13 days, backdated to the date of his arrest. He also had two property damage offences taken into account on a Form 1 (a procedure allowing a court to take additional offences into account without imposing separate sentences).

The Crown appealed the sentence as manifestly inadequate under s 5D of the Criminal Appeal Act 1912 (NSW). By the time the appeal was heard, the non-parole period had long expired and the full sentence was close to its end date.

Legal Issues

  • Whether the sentence imposed was manifestly inadequate having regard to the objective seriousness of the offending and relevant sentencing principles
  • Whether the sentencing judge erred in finding special circumstances to justify departing from the standard ratio between the head sentence and the non-parole period
  • Whether the Court should exercise its residual discretion not to intervene and re-sentence the respondent, notwithstanding a finding of manifest inadequacy
  • Whether an offence occurring at a victim's home can be an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the offender was not an intruder
  • What the preferable approach is when backdating a sentence to account for pre-sentence custody

Decision

Manifest Inadequacy

The Court accepted that the sentencing judge's assessment of objective seriousness as slightly below mid-range was open to him (at [43]). However, a significant disparity existed between that finding and the sentence ultimately imposed. The Court found that the sentencing judge gave undue weight to the respondent's subjective case in three identifiable ways: by characterising the case as "unusual" without adequate basis, by treating general deterrence as greatly mitigated by the respondent's personal circumstances, and by applying a principle of straining against actual imprisonment in a manner inconsistent with his own finding that imprisonment was warranted (at [45]-[48]). The Form 1 matters also received insufficient weight (at [58]). The sentence was manifestly inadequate and fell well beneath the applicable "bottom line" (at [50], [60]).

Special Circumstances

The Court held that before a finding of special circumstances can be made, a sentencing judge must be satisfied that significant positive signs exist showing rehabilitation is likely to be successful if a longer parole period is allowed, as opposed to a mere possibility (at [54]). No evidence supported such a conclusion in this case and the sentencing judge did not adequately address the issue (at [54]). Even where special circumstances are established, a non-parole period cannot be reduced below the level necessary to punish the offender and serve as a deterrent (at [55]). The degree of variation from the statutory ratio in this case was not supportable.

Beazley P and Adams J offered some qualification to the statement at [54], noting that it may not be appropriate in every case, particularly for long sentences where rehabilitation prospects are difficult to assess at the time of sentencing (at [9]-[10]). Bathurst CJ similarly observed that a sentencing judge is entitled to find special circumstances where evidence demonstrates that rehabilitation prospects would be assisted by a longer parole period, though he agreed no such evidence existed here (at [7]).

Residual Discretion

Although manifest inadequacy was established, the Court exercised its residual discretion not to intervene and re-sentence the respondent. The non-parole period had long expired and the head sentence was nearly at its end. The respondent had complied with parole conditions and made genuine progress in rehabilitation. Returning him to custody at that point would undermine the steps he had taken toward rehabilitation (at [62]-[63]).

Aggravating Factor: Offence at the Victim's Home

Bathurst CJ confirmed, consistent with the companion decision in Jonson v R [2016] NSWCCA 286, that s 21A(2)(eb) is not limited to intruders. The word "home" extends beyond the physical building to the area on the same premises reasonably adjacent to the residence (at [5]). Whether an offence occurring on the premises but outside the building aggravates the offence remains a matter for the sentencing judge to determine on ordinary sentencing principles (at [6]).

Backdating Practice

Adams J identified a problem with the sentencing judge's approach to backdating. Rather than backdating the sentence by 1 month and 13 days to account for actual pre-sentence custody, the sentencing judge backdated it by more than a year, which had the effect of treating time spent on conditional bail as if it were time spent on parole. The bail conditions were not shown to be analogous to quasi-custody. The preferable approach is to backdate the sentence only by the period of actual pre-sentence custody (at [68]-[70]).

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • A sentence may be found manifestly inadequate even without patent error: a significant disparity between the sentencing judge's own finding on objective seriousness and the sentence imposed can itself demonstrate that undue weight was given to subjective considerations, as the Court of Criminal Appeal confirmed here (at [45]).

  • Under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the word "home" extends to areas on the same premises reasonably adjacent to the physical residence, and the aggravating factor applies even where the offender was not an intruder (at [5]-[6], [25]).

  • Before a finding of special circumstances can be grounded in rehabilitation prospects, there must be evidence of positive signs that a longer parole period is likely, not merely possibly, to assist successful rehabilitation; the Court of Appeal noted, however, that this principle may need to be applied with care depending on the context, including the length of the sentence (at [54], [7]-[10]).

  • Even where a Crown sentence appeal succeeds on the ground of manifest inadequacy, the residual discretion not to intervene may be exercised where the offender has substantially served the sentence and has made genuine rehabilitative progress (at [62]-[63]).

  • In R v Lulham, Adams J identified the preferable sentencing practice when accounting for pre-sentence custody as backdating the sentence by the precise period of actual custody served, rather than backdating by a longer period that effectively treats time on conditional bail as parole (at [68]-[70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Attorney-General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney-General for NSW (2015) 317 ALR 308; [2015] HCA 9;
- Jonson v R [2016] NSWCCA 286
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39;
- Power v R (1974) 131 CLR 623; [1974] HCA 26
- R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
- R v Carter [2003] NSWCCA 243
- R v Cramp [2004] NSWCCA 264
- R v Dashti [2016] NSWCCA 251
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v Eastway (unreported, NSWCCA, 19 May 1992)
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399
- R v Zolfonoon [2016] NSWCCA 250
- Salafia v R [2015] NSWCCA 141
- SZ v Regina [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Wiggins v R [2010] NSWCCA 30