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)…

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 Regina v Lulham

Details

AGLC: Regina v Lulham [2002] NSWCCA 262
Case: [2002] NSWCCA 262
Decision Date: 21 June 2002

CaseChat Overview and Summary

In Regina v Lulham, the defendant was charged with assaulting a prison officer while in protective custody. The defendant, who had previously pleaded guilty to charges of assault, faced additional penalties for this incident. The case was heard in the Supreme Court of Victoria, which was tasked with determining the appropriate penalty for the defendant's actions. The court was required to consider the weight to be given to the defendant's plea of guilty, as well as his culpability and the circumstances surrounding the assault, specifically that it occurred while he was in protective custody.

The legal issues that the court had to decide included the relevance and weight of the defendant's previous plea of guilty, the extent of the defendant's culpability in this instance, and whether the fact that the defendant was in protective custody at the time of the assault should be taken into account when determining the penalty. The court had to balance these factors against the need to maintain the safety and security of the prison environment and to ensure that appropriate penalties are imposed for breaches of that security.

The court held that the defendant's previous plea of guilty should be given significant weight, but that this did not absolve him of responsibility for his actions in this instance. The court also found that the defendant's culpability was high, given that he had assaulted a prison officer while in protective custody, a position of heightened vulnerability. The court concluded that the fact that the defendant was in protective custody at the time of the assault was an aggravating factor, as it demonstrated a breach of the trust placed in him by the prison authorities. Ultimately, the court determined that the appropriate penalty for the defendant's actions was a sentence of imprisonment, with the exact length to be determined by the sentencing judge.

The court ordered that the case be remitted to the sentencing judge for the determination of the appropriate penalty, taking into account the factors outlined above. The court emphasised the importance of maintaining the safety and security of the prison environment, and the need to impose appropriate penalties for breaches of that security. The court also noted that the defendant's previous plea of guilty should be given significant weight, but that this did not absolve him of responsibility for his actions in this instance.

Orders