R v Lulham [2016] NSWCCA 287

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Lulham [2016] NSWCCA 287 Hearing dates: 23 August 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Before: Bathurst CJ at [1] Beazley P at [8] Hall J at [11] Bellew J at [12] Adams J at [65] Decision: 1. The Crown appeal is dismissed Catchwords: CRIMINAL LAW – Sentence – Wounding with intent to cause grievous bodily harm - Appeal by the Crown against the asserted manifest inadequacy of sentence – Where sentencing judge found that the objective seriousness of the offending was slightly below the mid-range – Disparity between that finding and the sentence which was ultimately imposed – Where the sentencing judge gave undue weight to the respondent's subjective case – Where there was no proper basis for the finding of special circumstances which was made in the respondent's favour – Sentence manifestly inadequate

CRIMINAL LAW – Sentence – Appeal by the Crown against the asserted manifest inadequacy of the sentence – Where manifest inadequacy was established – Whether the Court should exercise its residual discretion and not intervene to re-sentence the respondent – Where the non-parole period which was imposed had long since expired – Where the parole period was about to expire – Where the respondent had complied with the conditions of his parole and had made progress in his rehabilitation – Residual discretion exercised – Crown appeal dismissed

CRIMINAL LAW – Sentence – Practice and procedure – Preferable approach to be taken by a sentencing judge when a sentence is to be backdated Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Attorney-General's Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 CMB v Attorney-General for NSW (2015) 317 ALR 308; [2015] HCA 9; Jonson v R [2016] NSWCCA 286 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39; Power v R (1974) 131 CLR 623; [1974] HCA 26 R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 R v Carter [2003] NSWCCA 243 R v Cramp [2004] NSWCCA 264 R v Dashti [2016] NSWCCA 251 R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342 R v Eastway (unreported, NSWCCA, 19 May 1992) R v Fidow [2004] NSWCCA 172 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 R v Zolfonoon [2016] NSWCCA 250 Salafia v R [2015] NSWCCA 141 SZ v Regina [2007] NSWCCA 19; (2007) 168 A Crim R 249 Wiggins v R [2010] NSWCCA 30 Category: Principal judgment Parties: Regina – Appellant Craig Alistair Lulham – Respondent Representation: Counsel: B Baker – Appellant C Smith SC – Respondent