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Court of Criminal Appeal 3 July 2024

Lupica v R

[2024] NSWCCA 111

DrugsTheft & property
CRIME APPEALS APPEAL AGAINST SENTE NCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Lupica v R [2024] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 3 July 2024
Judge(s): Harrison CJ at CL, Cavanagh J, McNaughton J (McNaughton J delivered the principal judgment; the others agreed)

Background

The applicant was convicted of eight offences committed across five separate occasions between May 2021 and June 2022. The offences included destroying property, aggravated break, enter and steal in company, break and enter, larceny, and intimidation. The first five offences (Offences A) occurred while the applicant was on parole and involved breaking into residential carparks and storage facilities to steal bicycles, tools, and other goods.

Following guilty pleas to Offences A, the applicant was referred to the Drug Court of NSW at Parramatta. In February 2022, Judge Mottley imposed an "initial sentence" of 2 years and 9 months' imprisonment with no non-parole period, suspended to allow the applicant to participate in the Drug Court Program. Within months, the applicant committed three further offences (Offences B), including intimidating his sister and two more break-and-enter incidents. His participation in the Drug Court Program was summarily terminated as a result.

In November 2022, Judge Still imposed a "final sentence" under s 12 of the Drug Court Act 1998 (NSW) covering all eight offences: 3 years and 9 months' imprisonment with a non-parole period of 2 years and 3 months. The applicant appealed that sentence on grounds of parity, totality, delay, and manifest excess.

  • Whether the sentencing judges erred in their approach to parity, given that a co-offender received a different indicative sentence for one of the shared offences
  • Whether the final sentencing judge erred in refusing to backdate the commencement of the sentence to account for pre-sentence custody, and whether the delay in proceedings warranted such a backdating
  • Whether the final sentencing judge misapplied the principle of totality
  • Whether the aggregate sentence of 3 years and 9 months' imprisonment was manifestly excessive

Decision

Ground 1: Parity
The Court affirmed that parity requires equal outcomes in relevantly identical cases, and different outcomes where cases differ in relevant respects. Here, the alleged disparity related to only one of eight indicative sentences, and the co-offender (AB) had a different criminal history and was sentenced in a different jurisdiction. The Drug Court Judge had been entitled to find that no relevant parity issue arose, and the differences between the applicant's and AB's circumstances were readily distinguishable. Ground 1 was not made out.

Ground 2: Totality and Delay
The Court held that where an offender's pre-sentence custody results from both a parole revocation for earlier offending and being bail-refused for the current offending, the decision whether to backdate the sentence lies within the sentencing judge's discretion. The applicant's persistent offending while on conditional liberty was an aggravating feature that justified the refusal to backdate. As to delay, the Court found that the only delay that had occurred was attributable to the conduct of the applicant's own case, and did not warrant any adjustment to the commencement date. On totality, the final sentencing judge had expressly considered the principle when fixing the indicative and aggregate sentences, and the applicant was not serving any other sentence at the time. No appealable error was established.

Ground 3: Manifest Excess
The Court rejected the submission that the applicant's background met the threshold of "profound childhood deprivation" that might significantly reduce the weight of general deterrence under the principles in Bugmy v The Queen. The Court also found no error in the legal approach taken by either sentencing judge. Critically, the Court held that the final sentencing judge did not engage in impermissible double counting when noting both the applicant's failure to complete the Drug Court Program and the fact that Offences B were committed while he was subject to a suspended sentence: these were properly separate considerations. The eight offences, committed across five occasions against different victims, all occurred while the applicant was on some form of conditional liberty, and his criminal history afforded him no leniency. The aggregate sentence was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Parity claims in the Drug Court context require more than a difference in one indicative sentence out of several: the Court of Criminal Appeal confirmed that relevant differences in criminal history and jurisdiction between co-offenders are sufficient to displace any parity argument.
  • Where an offender's pre-sentence custody is attributable to parole revocation for prior offending, a sentencing court retains a discretion to refuse backdating, particularly where that offender has continued to offend while on conditional liberty.
  • Delay that is attributable to the conduct of an applicant's own case does not, of itself, warrant backdating the commencement date of a sentence.
  • No impermissible double counting arises where a sentencing court separately considers, first, an offender's failure to complete the Drug Court Program under s 12(2)(a) of the Drug Court Act 1998 (NSW) and, second, the fact that subsequent offences were committed while the offender was on a suspended sentence: both factors are independently available.
  • Reaching the threshold of "profound childhood deprivation" as discussed in Bugmy v The Queen requires more than a reported history of childhood sexual abuse and early drug use: the Court found the applicant's background, though serious, fell short of that threshold.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 117, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 58
- Criminal Appeal Act 1912 (NSW), s 5AF
- Drug Court Act 1998 (NSW), ss 6, 7A, 10, 12

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Geraghty v R [2023] NSWCCA 47
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- House v The King (1936) 55 CLR 499
- Ith v R [2013] NSWCCA 280
- Kaderavek v R [2018] NSWCCA 92
- Kljaic v R [2023] NSWCCA 225
- McKittrick v R [2014] NSWCCA 128
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Blanco [1999] NSWCCA 121
- R v DW [2012] NSWCCA 66
- R v Gray [2018] NSWCCA 241
- R v MMK [2006] NSWCCA 272
- R v Perrin [2022] NSWCCA 170
- Rizk v R [2020] NSWCCA 291
- Sabra v R [2015] NSWCCA 38
- Salafia v R [2015] NSWCCA 141
- Vujinovic v R [2024] NSWCCA 10
- White v R [2016] NSWCCA 190
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64