Appeal Court Finds GBH Sentence Inadequate, But Does Not Resentence

At 6.43 pm on 6 February 2015, Craig Lulham sent a text message to Bill, the husband of his friend Allison’s mother. It stated, “Bring the cops. I don’t care. It won’t stop me from smashing you are [sic] face in, even when I get kicked out.”

As Bill and his wife Liz returned home in their car at 9 pm that evening, Mr Lulham was waiting in the driveway. He smashed the passenger’s side headlight of Bill’s car, using a claw hammer that he brought with the intention of damaging the vehicle.

Bill made his way around to the passenger side to help Liz out of the car. Mr Lulham remarked, “Try and tell the police now.” Lulham then leaned over the car door, and smashed Bill over the head twice with his hammer.

The victim was dizzy and felt blood trickling down the side of his head. He walked to the end of the driveway and called the police. Mr Lulham told officers at the station that he was in shock after the incident, and had been “pissed off” with the victim for 17 years.

Lulham then stated, “I just hope Ben’s all right. It was out of rage.” He was refused bail, and remained in custody for 1 month and 13 days, before being granted bail and released.

Building resentment

Mr Lulham had moved in with his former school friend Allison and her mother Liz in 1992. Lulham was highly protective of the two women, who had taken him in. The trio had lived together for 17 years by the time of the incident. The victim also lived at the residence.

Prior to this, Lulham had spent a period living on the streets, after having left the house of his uncle, who had raised him. At the age of 17, he was put on probation for 12 months for several break, enter and steal matters. By the time of the incident, the then 40-year-old had never offended again.

The attack was sparked by the Mr Lulham’s understanding that Bill had been cheating on his wife, who was wheelchair-bound and suffering dementia. The offender also believed the man had been touching his friend in a sexual manner.

Remorse and contrition shown

Lulham pleaded guilty to wounding with intent to cause grievous bodily harm, under section 33(1)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period (SNPP) of 7 years.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars, before being eligible to apply for release on parole.

During the sentencing hearing, District Court Judge Rodney Madgwick heard that Lulham had taken full responsibility for his actions, was ashamed of the “petty” incident, and wished he “could take it back.”

A report by clinical psychologist Gerry Wenzel outlined that the offender had already undergone a general practitioner mental health care plan, and was on a list to receive anger management treatment as well. He gave an opinion that Lulham’s long-term rehabilitation prospects were favourable.

A light sentence?

His Honour assessed the offending, as “close to, but just a little below a mid-range offence.” The main aggravating features were that it happened at the victim’s home, and some of his property was destroyed. There was also some level of premeditation.

The judge found that Mr Lulham was eligible for a 25 percent discount on his sentence due to an early guilty plea, and a further reduction due to the genuine remorse he had shown. His Honour also found that Lulham’s prospects for rehabilitation were “very good.”

Due to Mr Lulham’s “previous good character,” as well as the other subjective features, Judge Madgwick found there was an “overwhelming case for reduction of the non-parole period well below the prima facie 75 percent of the head sentence.”

A sentence of 2 years imprisonment was handed down on 11 March 2016, with a non-parole period of 1 month and 13 days. This was the amount time Lulham had already served on remand after the incident occurred.

The judge considered the sentence would sufficiently deter Lulham from reoffending, and that no more prison time was required.

A manifestly inadequate sentence

The Office of the Director of Public Prosecutions (DPP) appealed against the sentence on the ground that it was manifestly inadequate. It argued the sentence was “plainly unjust” and would “undermine public confidence” in the criminal justice system.

NSW Court of Criminal Appeal (NSWCCA) Justice Geoffrey Bellew noted that Lulham’s use of the weapon was “clearly likely to cause grievous bodily harm,” and the threatening text messages he’d sent prior to the incident showed the “offending was not spontaneous.”

His Honour concluded that the sentence was indeed manifestly inadequate for three reasons. Firstly, and contrary to the findings of the sentencing judge, there was nothing “unusual” about the case.

The second reason was that the sentencing judge found that the requirement to regard general deterrence was mitigated by Lulham’s particular circumstances. However, Justice Bellew found there was nothing about the offender’s subjective case that meant general deterrence should be ignored.

And lastly, Judge Madgwick’s finding that the sentence should “be very low” was at odds with his assertion that the incident was sufficiently serious enough to warrant a sentence of imprisonment. Justice Bellew found the sentencing judge “gave undue weight to the respondent’s subjective case.”

“In my view, the sentence imposed by his Honour was well beneath the “bottom line” which was applicable to the circumstances of this case,” the justice remarked.

Not a reason to intervene

However, His Honour reasoned that the court should not intervene and resentence the offender, as on the day it handed down its finding his non-parole period had long since long expired and his parole period was about to expire in three months.

There was evidence that during his time on parole, Mr Lulham had complied with the required conditions, had undergone long-term psychological treatment, and he had the support of “his long-time friend and housemate” Allison, who had stated she’d observed a change in the man.

According to Justice Bellew, the offence did warrant substantial fulltime imprisonment, but to return Mr Lulham to custody would have had an adverse effect “upon the steps” he had “taken towards his rehabilitation since the offence” had been committed.

On 9 December last year, the court dismissed the appeal.