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 1. 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. 2. 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. 3. 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 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown accepts that the offender is entitled to a discount of 25% on whatever sentence would otherwise have been appropriate because he offered to plead guilty, at the first opportunity, to the offence of which he has ultimately been convicted.