R v Lupton - [2003] NSWCCA 200

CITATION: Lupton v Regina [2003] NSWCCA 200

HEARING DATE(S): 17/7/03

JUDGMENT DATE:
20 August 2003

JUDGMENT OF: Sheller JA at 1; James J at 2; O'Keefe J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Appeal against sentence - Sexual assault - Two separate committals - Multiple counts in each committal - Complaints by victims - Voluntary disclosures by applicant - Offences committed over substantial period - Aggravation - Person in authority - Stepfather - Discount for plea of guilty - Discount for voluntary disclosure - Relationship between overall sentence and non parole period - Power of Court to impose non parole period greater than three quarters of the term of the head sentence - Special circumstances - Finding of special circumstances not mandatory, depends on all the circumstances.

LEGISLATION CITED: Crimes Act 1900 - ss 61, 66
Crimes (Sentencing Procedure) Act 1999 - s 44
Criminal Appeal Act 1912

CASES CITED: Power v The Queen (1973) 131 CLR 623
Regina v Bushby (1977) 1 NSWLR 594
Regina v Cuthbert (1967) 86 W.N. (Pt 1) (NSW) 272
Regina v Simpson (2001) 53 NSWLR 704
Rex v Geddes (1936) 36 SR (NSW) 554

PARTIES :
Peter Barry Lupton
Regina

FILE NUMBER(S): CCA 60093/03

COUNSEL: Crown: Mr D Frearson
Applicant: Mr S Corish

SOLICITORS: Crown: S E O'Connor - Solicitor for Public Prosecutions
Applicant: D J Humphries - Legal Aid Commission (NSW)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0187; 99/31/0429

LOWER COURT
JUDICIAL OFFICER : English DCJ

- 10 -

60093/03

Sheller JA
James J
O’Keefe J

REGINA v PETER BARRY LUPTON

Judgment

1 SHELLER JA: I agree with O'Keefe J.

2 JAMES J: I agree with the judgment of O'Keefe J.

3 O’KEEFE J:

4 This is an application by Peter Barry Lupton (the applicant) for leave to appeal against sentences imposed on him in the District Court on 7 February 2002 in respect of 33 charges of sexual assault relating to his three stepdaughters committed over a period of nine years.

5 The applicant was before the court on two separate committals for sentence. The first involved 20 counts; the second 13 counts. The matters involved in the first committal for sentence resulted from complaints made by the victims. The matters involved in the second committal for sentence were a consequence of voluntary disclosures by the applicant.

6 The charges involved in the first committal for sentence were:

(i) Indecent assault in circumstances of aggravation contrary to s 61M of the Crimes Act 1900 (the Act), the maximum penalty for which is imprisonment for seven years (seven matters).

(ii) An act of indecency in relation to a child under the age of 16 years contrary to s 61O(1) of the Act, the maximum penalty for which is imprisonment for 5 years (five matters).

(iii) Sexual intercourse with a child between 10 and 16 years of age contrary to s 66C(1) of the Act, the maximum penalty for which is imprisonment…

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 [2003] NSWCCA 200
Case: [2003] NSWCCA 200
Decision Date: 20 August 2003

CaseChat Overview and Summary

The case of R v Lupton involved the appellant, Lupton, who was convicted of multiple counts of sexual assault against two victims. The matter was heard in the court of appeal, with Lupton contesting the sentence imposed upon him. The dispute centred on the appropriate sentence to be imposed for Lupton’s crimes, with the appellant arguing that the trial judge miscalculated the non-parole period.

The primary legal issues before the court were whether the trial judge had the discretion to set a non-parole period greater than three quarters of the head sentence and whether special circumstances existed to warrant such a decision. The court considered the cumulative effect of Lupton’s offending, the impact on his victims, and the need for deterrence and denunciation. The court also examined whether the trial judge had correctly applied the principles regarding discounts for a guilty plea and voluntary disclosure.

In addressing these issues, the court determined that the trial judge did have the authority to set a non-parole period exceeding three quarters of the head sentence, especially given the gravity of Lupton’s crimes and the need for adequate deterrence. The court found that special circumstances existed, justifying the extended non-parole period. The court emphasised that while the presence of special circumstances was a factor, it was not a mandatory consideration and depended on the totality of the circumstances. The appeal against sentence was dismissed, and the original sentence was upheld.

No additional orders were made by the court.

Orders