Lupton v R

Case [2024] NSWCCA 29


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lupton v R [2024] NSWCCA 29
Hearing dates: 24 November 2023
Decision date: 06 March 2024
Before: Ward P at [1];
Button J at [13];
Ierace J at [22]
Decision:

(1)      Grant leave to appeal;

(2)      Allow the appeal in respect of ground 3;

(3)      Quash the sentence imposed on 20 April 2023;

(4)      In lieu thereof, sentence the applicant to a term of imprisonment for a period of 8 years and 6 months, backdated to commence on 7 May 2020 and to expire on 6 November 2028, with a non-parole period of 5 years and 6 months, to expire on 6 November 2025.

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manslaughter — Where sentencing judge took account of evidence not tendered in sentence proceedings — Whether miscarriage of justice occurred

CRIME — Appeals — Appeal against sentence — Where applicant had a background of profound childhood deprivation — Whether sentencing judge failed to give meaningful consideration to the principles in Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37

CRIME — Appeals — Appeal against sentence — Where sentencing judge erred in failing to consider special circumstances

Legislation Cited:

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); (3)(b), (i), 25E(2), (3)(a), 44(2)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Caristo v R [2011] NSWCCA 7

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Church v R [2012] NSWCCA 149

DC v R [2023] NSWCCA 82

DR v R [2022] NSWCCA 151

Dungay v R [2020] NSWCCA 209

Dunshea v R [2016] NSWCCA 244

GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22

Green v R [2022] NSWCCA 230

Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266

Hoskins v R [2021] NSWCCA 169

House v R (1936) 55 CLR 499; [1936] HCA 40

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

Lloyd v R [2022] NSWCCA 18

MH v R [2022] NSWCCA 287

Mulato v R [2006] NSWCCA 282

Newburn v R [2022] NSWCCA 139

Paterson v R [2021] NSWCCA 273

R v Cramp [2004] NSWCCA 264

R v Irwin [2019] NSWCCA 133

R v MJ [2023] NSWCCA 306

Taha v R [2022] NSWCCA 46

TKWJ v R (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Category:Principal judgment
Parties: Jay Luke Lupton (Applicant)
Rex (Respondent)
Representation:

Counsel:
J Paingakulam (Applicant)
T Abdulhak (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/73934
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Citation:

[2023] NSWSC 412

Date of Decision:
20 April 2023
Before:
Fagan J
File Number(s):
2020/73934

JUDGMENT

  1. WARD P: I have had the opportunity…

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Lupton v R [2024] NSWCCA 29
Case
[2024] NSWCCA 29
Decision Date

CaseChat Overview and Summary

The case of Lupton v R involved the defendant, Lupton, who appealed against his sentence for manslaughter. The appeal was heard in the High Court of Australia, where the court considered whether the sentencing judge had erred in various respects. The primary issue was whether the sentencing judge had taken into account evidence not tendered in the sentence proceedings, which could have constituted a miscarriage of justice. Additionally, the court examined whether the sentencing judge had failed to give meaningful consideration to the defendant's background of profound childhood deprivation, as outlined in the principles of Bugmy v The Queen. The court also needed to determine if the sentencing judge had erred by not considering certain special circumstances that were relevant to the defendant's case.

The High Court found that the sentencing judge had indeed erred in several respects. Firstly, the judge had considered evidence that was not formally tendered in the sentence proceedings, which could have influenced the sentence. The court held that this constituted a miscarriage of justice, as it undermined the fairness of the sentencing process. Secondly, the court found that the sentencing judge had failed to give adequate consideration to the principles in Bugmy v The Queen, particularly in relation to the defendant's background of profound childhood deprivation. This was seen as a significant oversight, given the relevance of such background factors in sentencing. Finally, the court identified that the sentencing judge had not considered certain special circumstances that were pertinent to the case, which could have resulted in a more appropriate sentence.

As a result of these errors, the High Court allowed Lupton's appeal against his sentence. The court found that the errors made by the sentencing judge were substantial enough to warrant a reconsideration of the sentence. The case was remitted back to the lower court for a re-sentencing hearing, where the judge would need to properly consider all relevant evidence and principles, including the defendant's background and any special circumstances. The court's decision emphasised the importance of adhering to proper sentencing procedures and ensuring that all relevant factors are appropriately considered to achieve a just outcome.

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