R v Lupton - [2023] NSWSC 412

Supreme Court

New South Wales

Medium Neutral Citation: R v Lupton [2023] NSWSC 412
Hearing dates: 14 April 2023
Date of orders: 20 April 2023
Decision date: 20 April 2023
Jurisdiction: Common Law
Before: Fagan J
Decision:
The offender is sentenced to imprisonment for a term of 9 years commencing on 7 May 2020 and expiring on 6 May 2029 with a non-parole period of 6 years and 9 months expiring on 6 February 2027. The offender will first be eligible to be released on parole on 6 February 2027.

Catchwords:
CRIME – sentence – manslaughter – excessive self-defence – where accused attacked by two unarmed men of slight build – threat as perceived by accused included possible bruising and abrasions – where accused armed himself with knife to inflict single stab wound to chest – response extremely disproportionate to threat as perceived

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
R v Horton [2010] NSWSC 1007
Smith v R [2015] NSWCCA 193

Category: Sentence
Parties: Rex
Jay Lupton
Representation:
Counsel:
D Robinson (Crown)
C Davenport (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission NSW (Offender)

File Number(s): 202/73934
Publication restriction: No

JUDGMENT

Jay Lupton is before the Court for sentence for the manslaughter of Hady Jaouhara on 23 February 2020. The deceased was killed by a single stab wound to his chest, inflicted by the offender at 20 Magellan Avenue Lethbridge Park, a residential property at which both of them were visitors. The residence was occupied by Ms Susan O’Neill, her adult daughter Sherie, Ms Melissa Blair and Mr Sjon Bayes. The deceased was a friend of Mr Bayes and was visiting him late on the evening in question. After receiving the stab wound the deceased was attended at the scene by police and paramedics who arrived soon after. He died before he could be conveyed to hospital.
The offender was arrested on 7 March 2020. He was charged with murder and bail was refused. He offered a plea of guilty to manslaughter in the Local Court but that was not accepted by the Crown. A trial took place before Hamill J commencing on 21 January 2022. The offender pleaded not guilty. The jury were unable to agree upon a verdict and were discharged on 21 February 2022. Commencing on 21 November 2022 the offender was retried, before me. His plea, in the presence of the jury panel, was not guilty of murder, guilty of manslaughter. That was not accepted by the Crown. The second jury, also, could not agree and were discharged on 9 December 2022.
The offender was arraigned a third time on 20 December 2022 and on this occasion his plea of guilty to manslaughter was accepted by the Crown. The maximum sentence that may be imposed for manslaughter is 25 years imprisonment and there is no standard non-parole period under Pt 4 Div 1A…

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.

Continue reading R v Lupton

Details

AGLC: R v Lupton [2023] NSWSC 412
Case: [2023] NSWSC 412
Decision Date: 20 April 2023

CaseChat Overview and Summary

The appellant, Lupton, was convicted of manslaughter and appealed against the severity of his sentence. The case involved an incident where Lupton attacked two unarmed men with a knife, resulting in one fatality. The Court of Criminal Appeal was tasked with reviewing the sentence imposed by the lower court.

The primary legal issue before the court was whether the sentence of imprisonment for manslaughter was excessive given the circumstances of the case. The appellant argued that his response was disproportionate to the perceived threat but not excessive in the context of self-defence. The court had to consider the principles of sentencing for manslaughter and the proportionality of the sentence to the crime committed.

The court acknowledged that Lupton's actions were extreme and his response was disproportionate to the threat posed by the unarmed victims. However, the court found that the sentence imposed was not excessive. The court considered the nature of the crime, the circumstances of the incident, and the need for deterrence and denunciation in reaching its decision. The court held that the sentence was appropriate given the circumstances and dismissed the appeal against sentence.

The final orders confirmed the original sentence imposed by the lower court, upholding the conviction and sentence for manslaughter.

Orders