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Court of Criminal Appeal 6 March 2024

Lupton v R

[2024] NSWCCA 29

Homicide

Citation: Lupton v R [2024] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 6 March 2024
Judges: Ward P at [1]; Button J at [13]; Ierace J at [22]

Background

The applicant pleaded guilty to manslaughter and was sentenced in April 2023 to a term of imprisonment. At the time of the offending, he was 28 years old and had spent the majority of his adult life incarcerated. He had a background of profound childhood deprivation, neglect, and abuse, and had engaged in long-term heavy use of illicit substances, including methamphetamine on the day of the offence.

A psychologist's report tendered in the sentence proceedings identified a causal link between the applicant's deprived upbringing and his substance abuse, explaining that he used drugs to manage the negative thoughts and feelings arising from his childhood experiences. The report also concluded that his substance use had impaired his decision-making, judgment, and behavioural regulation at the time of the offence.

The applicant sought leave to appeal his sentence on three grounds, each directed at errors alleged to have occurred in the sentencing judge's reasoning and conclusions.

  • Whether the sentencing judge committed a miscarriage of justice by relying on evidence not formally tendered in the sentence proceedings (Ground 1)
  • Whether the sentencing judge failed to give meaningful consideration to the Bugmy principles, particularly in assessing the applicant's moral culpability in light of his profound childhood deprivation (Ground 2)
  • Whether the sentencing judge erred in failing to find special circumstances, including by treating drug rehabilitation as a general sentencing consideration rather than one with particular relevance to the non-parole period ratio, and by inadequately accounting for the effects of COVID-19 pandemic conditions in custody (Ground 3)

Decision

Ground 1 was dismissed by all three judges. The Court agreed with Ierace J's reasoning that, whatever the sentencing judge's reliance on evidence not formally tendered, no miscarriage of justice had resulted on the facts of the case.

Ground 2 produced a divided bench. Ward P and Button J considered that, read in context, the sentencing judge had sufficiently engaged with the applicant's deprived background. The phrase "full account" used by the sentencing judge echoed the Bugmy requirement to give "full weight" to an offender's deprived background in every sentencing decision. While the word "moral culpability" did not appear expressly, Ward P concluded it was clear from the structure of the sentencing judge's reasoning that the Bugmy principles had been applied in the instinctive synthesis, and that the absence of explicit articulation was explicable by the Crown raising no issue with the relevant matters. Ierace J dissented on this ground, finding the engagement with the Bugmy principles insufficient to demonstrate meaningful consideration.

Ground 3 was upheld, at least in part, by all three judges. The sentencing judge's statement that drug rehabilitation and addiction were "general sentencing considerations" that had no special significance for the ratio of the non-parole period was accepted as error. Ward P and Ierace J differed, however, on the second alleged error. Ward P did not accept that the sentencing judge's treatment of the loss of face-to-face family visits during the pandemic constituted House v The King error, characterising it as a discretionary assessment on which reasonable minds could differ. Ierace J found error on both points and would have re-sentenced on that basis. Button J agreed that error was established on Ground 3 and supported re-sentencing.

The majority proceeded to re-sentence the applicant. The re-sentence reflected a finding of special circumstances, having regard to the applicant's extensive period of incarceration throughout his adult life, the limited opportunity for a prosocial lifestyle in the community, and the impact of COVID-19 pandemic conditions in custody, including loss of face-to-face family visits and unavailability of prison programs.

Orders Made

  • Leave to appeal granted
  • Appeal on Grounds 1 and 2 dismissed
  • Appeal on Ground 3 upheld
  • The applicant re-sentenced to imprisonment for 8 years and 6 months, backdated to commence 7 May 2020 and to expire 6 November 2028
  • Non-parole period of 5 years and 6 months, expiring 6 November 2025

Key Takeaways

  • The Bugmy principles require sentencing judges to give "full weight" to an offender's background of childhood deprivation in every sentencing decision; their application is not discretionary and is relevant to moral culpability, and may also inform the assessment of objective seriousness.
  • A sentencing judgment need not use the precise phrase "moral culpability" for a court to conclude that the Bugmy principles were applied; the Court of Criminal Appeal will look at the judgment as a whole and in context, not parse it as if it were a statute.
  • In dismissing Ground 2, the majority confirmed that appellate restraint applies to the assessment of moral culpability, just as it does to the characterisation of objective seriousness, consistent with the approach in Mulato v R.
  • Classifying drug rehabilitation and addiction as merely "general sentencing considerations" with no special significance for the non-parole period ratio can constitute identifiable error warranting intervention on appeal.
  • An offender's extensive period of incarceration throughout adulthood, combined with limited community experience and the practical hardships of pandemic conditions in custody, can together support a finding of special circumstances justifying a departure from the standard non-parole period ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 421(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2)(c), (j), 21A(3)(b), (i), 25E(2), (3)(a), 44(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
- Dungay v R [2020] NSWCCA 209
- Paterson v R [2021] NSWCCA 273
- Mulato v R [2006] NSWCCA 282
- MH v R [2022] NSWCCA 287
- DR v R [2022] NSWCCA 151
- DC v R [2023] NSWCCA 82
- Green v R [2022] NSWCCA 230
- Lloyd v R [2022] NSWCCA 18
- Newburn v R [2022] NSWCCA 139
- Hoskins v R [2021] NSWCCA 169
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Caristo v R [2011] NSWCCA 7
- Church v R [2012] NSWCCA 149
- Dunshea v R [2016] NSWCCA 244
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Cramp [2004] NSWCCA 264