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
Regina – Appellant Craig Alistair Lulham – Respondent
Representation:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.