R v Lulham

Case [2016] NSWCCA 287


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Lulham [2016] NSWCCA 287
Hearing dates:23 August 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Before: Bathurst CJ at [1]
Beazley P at [8]
Hall J at [11]
Bellew J at [12]   
Adams J at [65]
Decision:

1. The Crown appeal is dismissed

Catchwords:

CRIMINAL LAW – Sentence – Wounding with intent to cause grievous bodily harm - Appeal by the Crown against the asserted manifest inadequacy of sentence – Where sentencing judge found that the objective seriousness of the offending was slightly below the mid-range – Disparity between that finding and the sentence which was ultimately imposed – Where the sentencing judge gave undue weight to the respondent’s subjective case – Where there was no proper basis for the finding of special circumstances which was made in the respondent’s favour – Sentence manifestly inadequate

 

CRIMINAL LAW – Sentence – Appeal by the Crown against the asserted manifest inadequacy of the sentence – Where manifest inadequacy was established – Whether the Court should exercise its residual discretion and not intervene to re-sentence the respondent – Where the non-parole period which was imposed had long since expired – Where the parole period was about to expire – Where the respondent had complied with the conditions of his parole and had made progress in his rehabilitation – Residual discretion exercised – Crown appeal dismissed

  CRIMINAL LAW – Sentence – Practice and procedure – Preferable approach to be taken by a sentencing judge when a sentence is to be backdated
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: 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
Category:Principal judgment
Parties: Regina – Appellant
Craig Alistair Lulham – Respondent
Representation:

Continue reading R v Lulham

Sign in free to access the full text

Details
AGLC
R v Lulham [2016] NSWCCA 287
Case
[2016] NSWCCA 287
Decision Date

CaseChat Overview and Summary

The case of R v Lulham involved an appeal by the Crown against the sentence imposed on the respondent, Lulham, for wounding with intent to cause grievous bodily harm. The dispute centred on the Crown's assertion that the sentence was manifestly inadequate, and the sentencing judge's handling of the case was flawed in several respects. The appeal was heard in the Court of Criminal Appeal.

The primary legal issue was whether the sentence imposed by the trial judge was manifestly inadequate given the findings made during the sentencing process. The Crown argued that the objective seriousness of the offence was slightly below the mid-range, yet the sentence imposed was significantly lenient. Additionally, the Crown contended that the sentencing judge had given undue weight to the respondent’s subjective circumstances and improperly identified special circumstances that warranted a lighter sentence. The appeal also questioned whether the Court should exercise its residual discretion to re-sentence the respondent, considering that the non-parole period had long expired and the parole period was nearing its end.

The Court of Criminal Appeal found that the manifest inadequacy of the sentence was established. The sentencing judge had indeed given undue weight to the respondent's subjective case and had made an incorrect finding of special circumstances. Despite this, the Court exercised its residual discretion not to intervene and re-sentence the respondent. This decision was based on the respondent's compliance with parole conditions and the progress made in his rehabilitation. Consequently, the Crown's appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.