Regina v Lulham

[2002] NSWCCA 262

CITATION:	Regina v Lulham [2002] NSWCCA 262
FILE NUMBER(S):	CCA 60468/00
HEARING DATE(S):	21 June 2002
JUDGMENT DATE:	21 June 2002
PARTIES :	Dean Richard Lulham - Applicant Crown - Respondent
JUDGMENT OF:	Spigelman CJ at 1,33,35; Simpson J at 2; Blanch AJ at 34

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70200/99
LOWER COURT JUDICIAL OFFICER :	Greg James J

COUNSEL :	PE Barrett - Crown PR Boulten - Applicant
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Applicant
CATCHWORDS:	weight given to plea of guilty - culpability - circumstances of protective custody
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Thomson and Houlton [2000] NSWCCA 300; (2000) 49 NSWLR 383 R v Davies (1978) 68 CAR 319 R v Perez-Vargas (1986) 8 NSWLR 559
DECISION:	Leave to appeal granted, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60468/00

SPIGELMAN CJ
SIMPSON J
BLANCH J

21 June 2002

REGINA v Dean Richard LULHAM

Judgment

1 SPIGELMAN CJ: I invite Simpson J to deliver the first judgment.

2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him by Greg James J on 18 July 2000, following the applicant’s plea of guilty to a charge of murdering Robert Christopher Spradbrow.

3 The applicant was sentenced to imprisonment for a term of eighteen years commencing on 14 November 1998, with a non-parole period of thirteen and a half years.

4 The offence was committed on 12 November 1998 in rather extraordinary circumstances which may, nevertheless, be stated shortly. The applicant was a farm hand, then aged thirty-four, who had lived and worked all of his life in Beechwood, a small village west of the mid-north coast of NSW. On the afternoon of Thursday 12 November 1998 the applicant was at a swimming hole nearby, known as Kooree Island, with his younger half-brother, to whom I will refer to as DT. Both were consuming intoxicating liquor.

5 Robert Spradbrow arrived in the vicinity with his girlfriend but went to an area of the river bank a distance from the applicant and DT. Both the applicant and DT had known Mr Spradbrow for some years. Although it is not spelled out, it is obvious from the papers that the relationship between the applicant and DT on the one hand and Mr Spradbrow on the other had not been a harmonious one.

6 On his arrival, the applicant and DT had some discussions about their prior involvement with Mr Spradbrow and the applicant suggested that DT should shoot the victim. He accordingly left the area, travelled to a nearby dairy farm, where he worked, and borrowed a .22 rifle and some ammunition from his employer. He returned to the swimming hole with the rifle. There further discussions took place in relation to shooting Mr Spradbrow. However, as there were other persons present, no shooting then took place.

7 The applicant and his brother left, joined a friend (Bradley Moran) and consumed a quantity of alcohol. They continued to discuss Mr Spradbrow and, again, in the presence of Moran, further mention was made of shooting him.

8 Later the applicant, DT and Moran travelled back to Kooree Island. Mr Spradbrow’s car was still parked nearby, and he and his girlfriend, who were camping on the riverbank, were asleep on a matress. DT walked to where they were sleeping, carrying the rifle, put the rifle to the head of Mr Spradbrow and pulled the trigger. He returned to the car and was driven away by the applicant. Moran was also present.

9 The men drove off, returning to the applicant’s home. On the way they threw the rifle into the local cemetery. Later, the applicant’s mother, DT and Moran returned to the cemetery, recovered the rifle, and secreted it elsewhere.

10 During the evening of the following day, 13 November 1998, the applicant and his mother went to Kooree Island. The applicant was spoken to by police and accompanied them to Port Macquarie Police Station. He subsequently was interviewed by police and the interview was electronically recorded. He acknowledged having been present at Kooree Island the previous evening but denied any complicity in Mr Spradbrow’s death. He told police that he had spoken with Mr Spradbrow and that “they had reconciled their differences”.

11 In a second interview which commenced at 12.55 a.m. on Saturday 14 November, the applicant admitted having obtained the rifle but said he had done so for the purpose of shooting mullet in the river. He said he had obtained the gun before Mr Spradbrow had arrived at the swimming hole. He again asserted that he had made peace with Mr Spradbrow. He told police that DT had shot Mr Spradbrow but said that this was without his prior knowledge.

12 The applicant pleaded guilty on 24 August 1999. Proceedings on sentence commenced on 7 December 1999. It seems that by this time, notwithstanding the plea of guilty, there were some disputed issues of fact and a police officer and DT were called to give evidence.

13 On 25 February 2000 counsel who had then been representing the applicant withdrew “on the basis of ethical reasons” and the matter was further adjourned. On 17 March 2000 counsel who had assumed the applicant’s representation advised the judge that an application was to be made to withdraw the plea of guilty. That application was heard in July 2000 and refused by his Honour on 17 July 2000. Sentencing proceedings continued and the applicant was sentenced on 18 July 2000.

14 Some subjective material was put before the sentencing judge. This amounted to a pre-sentence report and a psychological assessment prepared by a neuro-psychologist, Professor Tate. These disclosed that the applicant had had an emotionally impoverished childhood and adolescence. Alcoholism seems to have afflicted most members of the applicant’s family. It has afflicted the applicant himself. He is the only child of parents who never married and never lived together and was raised by his mother and grandfather.

15 He has sought to maintain a satisfactory relationship with his mother and his step-brother. He has had some domestic relationship, none of which had lasted, although he has a son who was aged fourteen at the time of sentencing. At that time he was in a relationship with a woman who described him as a loving and caring person when not intoxicated, but one who reverted to statements of a violent kind (though not actual physical violence) when drunk.

16 His alcohol consumption has been at times extraordinarily heavy. He was assessed as of average intelligence but with severely impaired performances on some psychological testings. His formal education ceased at the age of fourteen.

17 Greg James J made certain findings of fact which should here be mentioned. Inter alia, he said:

“13 I am not satisfied on the evidence before me in the present proceedings that I should make any finding that the role of the offender extended beyond providing the fatal weapon to DT, driving him to the scene at which the crime was committed, realising when he did so that DT would kill the deceased if the deceased was still there and present.”

18 He did not accept that the applicant was the first to propose a concrete course of killing Mr Spradbrow but did accept that he was the first on the day of Mr Spradbrow’s murder to raise the subject, which had been a matter of discussion between the applicant and DT on previous occasions. Having regard to the application to withdraw the plea of guilty, his Honour held that there was no evidence of specific contrition:

“although there is some evidence of a recognition and regret on his part for his guilt in producing the gun.”

He was unable to be satisfied that the applicant:

“was either the instigator or the prime mover”.

He concluded that there was little to choose between the two offenders. DT was “the actual assassin”.

19 He sentenced DT to penal servitude for sixteen years made up of a minimum term of twelve years and an additional term of four years.

20 However, a number of matters are to be observed in relation to DT. DT pleaded guilty and gave an undertaking to give evidence against the applicant at what was then anticipated to be his trial. He did in fact give evidence on the applicant’s plea of guilty. This resulted in a substantial discount on sentence for DT. By contrast Greg James J recognised that there was some utilitarian benefit in the applicant’s plea of guilty, but, bearing in mind his application to withdraw the plea, and the absence of any evidence of contrition, held that this entitled the applicant only to a small consideration. His Honour said:

“Nonetheless I do propose to impose a lesser penalty as is referred to in s22 of the Crimes (Sentencing Procedure) Act 1999 although not, in the circumstances, a penalty lesser to any great extent.”

21 Three separate matters have been raised on the application for leave to appeal against the sentence. They are:

(i) the weight, said to be insufficient, given to the plea of guilty;
(ii) the weight given to the reduced culpability of the applicant compared with that of DT (said to be inadequate);
(iii) that the applicant is serving, and will probably continue to serve, his sentence in protective custody, a relevant circumstance said to have been overlooked.

(i) plea of guilty

22 His Honour did not quantify the extent to which the applicant’s sentence was reduced by reason of the plea of guilty. However, his Honour made it quite clear that the discount was a small one. The reasons for this, as I have noted, were the application to withdraw the plea and the absence of evidence of specific contrition.

23 In my opinion there is no error demonstrated in this respect. In R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383 the discount which an offender may expect by reason of the utilitarian value of a plea of guilty was quantified at between 10 and 25 per cent. As his Honour recognised, there was some utilitarian value in the plea of guilty, given that a trial, with all its attendant expenses, did not eventuate and, in particular, Mr Spradbrow’s girlfriend was spared the ordeal of giving evidence of the events of 12 November.

24 However, to a large extent, that was nullified by the application to reverse the plea, which must have left that witness aware of the possibility that she may have to give evidence. In my opinion the sentencing judge was entitled to treat the plea of guilty as he did.

(ii) reduced culpability of the applicant relative to that of DT

25 When regard is had to the findings of fact, this submission cannot be accepted. His Honour accepted that there had been previous discussions about killing Mr Spradbrow, and did not accept that the applicant was the first to propose that course, but he did accept that he was the first on the day of Mr Spradbrow’s death to raise that subject.

26 Further, he found that the applicant, having mentioned the matter, obtained the rifle, drove DT to the scene of the crime in the knowledge that DT would kill Mr Spradbrow if (as he was) Mr Spradbrow was still present. Another matter not mentioned by his Honour, but relevant to this argument which is, in essence, a parity argument, is that the applicant is about ten years older than DT.

(iii) protective custody

27 The difficulty lying in the applicant’s way in this submission is that there was no evidence that the applicant was held in protective custody, or if so, why that was so. It is well recognised that protective custody is more onerous than custody in the ordinary gaol system (R v Davies (1978) 68 CAR 319: R v Perez-Vargas (1986) 8 NSWLR 559). However, no evidence was put before his Honour to establish the fact.

28 In the December 1999 proceedings, counsel who then appeared for the applicant stated that he was then being held on protection, but nothing further was said on this subject. It was not until many months later that his Honour did turn to sentence the applicant. In the course of his remarks on sentence he made no mention of the fact that the applicant was on protection, and this is hardly surprising, given the cursory way in which it was mentioned months earlier, and never again drawn to his attention, and never made the subject of any evidence or explanation.

29 In those circumstances, I would be prepared to draw the inference that it was not a matter that was taken into account by the sentencing judge. However, it is difficult to see that this constitutes error on his part, given the circumstances I have just related.

30 In my opinion, however, having regard to the authorities relating to protective custody, it is appropriate for this Court to consider whether, if error were demonstrated in the failure to mention or take into account the fact that the applicant is held on protective custody, that should make any difference to the result.

31 Having considered the sentence, including the sentence relative to the sentence imposed upon DT, I could not be satisfied that even if this fact were overlooked, and should have been taken into account, that that should result in any different sentence. S6 of the Criminal Appeal Act 1912 permits the Court to intervene only in limited circumstances.

32 Having regard to all the circumstances I am not satisfied that any other sentence should be imposed. Accordingly I would grant leave to appeal but dismiss the appeal.

33 SPIGELMAN CJ: I agree.

34 BLANCH J: I also agree.

35 SPIGELMAN CJ: The order of the Court is as indicated by Simpson J.

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