Citation: R v Whitmore [2019] NSWDC 802
Court: District Court of New South Wales
Date: 24 October 2019
Judge(s): Colefax SC DCJ
Background
The offender pleaded guilty to two offences arising from an attack on a neighbour in the early hours of 14 September 2018 at a unit complex in Glenfield, Sydney. The victim had earlier that evening knocked on the offender's door and invited the offender's partner and her children to the movies, an invitation the partner declined. The offender was not present at the time.
When the victim returned home between 3 and 4am, the offender approached him in the dark and struck him in the face with a hammer, then continued to strike him repeatedly across the face, arms, legs, and knees, and also kicked him multiple times. The victim was hospitalised for four days and sustained serious facial fractures and multiple contusions.
The offender claimed during the proceedings that he happened to be holding the hammer because he had been repairing a fence at the time. The sentencing judge rejected that explanation entirely, finding beyond reasonable doubt that the offender had been deliberately waiting in the dark for the victim to return and had armed himself in advance.
Legal Issues
- What sentences were appropriate for the offences of using an offensive weapon with intent to commit a serious indictable offence (s 33B(1)(a), Crimes Act 1900) and assault occasioning actual bodily harm (s 59(1), Crimes Act 1900)?
- What weight should be given to the offender's guilty plea, background, Aboriginality, and dysfunctional upbringing in mitigation?
- Whether a finding of special circumstances was warranted to adjust the ratio of the non-parole period to the head sentence.
- How should the sentences be structured given the offences formed a continuous course of conduct?
Decision
Colefax SC DCJ assessed the objective seriousness of the offensive weapon offence as mid-range and the assault as slightly below mid-range. The judge declined to speculate about the nature or location of the kicking in the absence of clear agreed facts, but noted the offender's own concession through counsel that the assault offence was towards the mid-range. The four-day hospitalisation and extent of the injuries informed the seriousness assessment, though the absence of any victim impact statement and any evidence of long-term consequences limited the Court's full picture.
The offender's Aboriginality and profoundly dysfunctional childhood were accepted as mitigating factors reducing moral culpability, consistent with the High Court's directions to sentencing judges. His long history of illicit drug use, which began at age 12, was also noted in that context. However, the judge drew an adverse inference from what was characterised as a deliberate lie about the fence repair, and indicated that evidence given by the offender throughout the proceedings would need to be scrutinised carefully as a result.
Both specific and general deterrence, community protection, and the encouragement of rehabilitation were identified as fully engaged sentencing considerations. A 25% discount was applied to both sentences to reflect the guilty pleas. The sentences were made fully concurrent given the offences constituted a continuous course of conduct, and both were backdated to 30 October 2018.
The application for a finding of special circumstances to vary the standard non-parole period ratio was refused. The judge was satisfied the parole period as structured would be sufficient to support the offender's rehabilitation without further adjustment.
Orders Made
- Offence 1 (s 33B(1)(a), offensive weapon with intent): imprisonment of 4 years and 6 months; non-parole period of 3 years and 4 months commencing 30 October 2018, expiring 28 February 2022; balance of term of 1 year and 2 months expiring 30 April 2023.
- Offence 2 (s 59(1), assault occasioning actual bodily harm): imprisonment of 1 year and 10 months; non-parole period of 1 year and 4 months commencing 30 October 2018, expiring 29 February 2020; balance of term of 6 months expiring 31 August 2020.
- Both sentences to be served concurrently, backdated to 30 October 2018.
- Special circumstances application refused.
Key Takeaways
- The District Court rejected the offender's account that he was holding a hammer for fence repairs at 4am, finding beyond reasonable doubt that the weapon had been deliberately obtained in preparation for the attack. This finding affected the Court's assessment of the offender's credibility across the sentencing proceeding.
- A 25% guilty plea discount was applied to both sentences, reducing the offensive weapon offence from a notional 6 years to 4 years 6 months, and the assault from 2 years 6 months to 1 year 10 months.
- Where two offences form a continuous course of conduct arising from a single incident, concurrent sentences may be appropriate even where the maximum penalties and objective seriousness of each offence differ significantly.
- Under the High Court's guidance on sentencing Aboriginal offenders, a demonstrably dysfunctional upbringing can reduce assessed moral culpability, as the District Court recognised here, without displacing the engagement of deterrence and community protection.
- Gaps in agreed facts, such as the absence of information about where the victim was kicked or the long-term consequences of his injuries, operated in favour of the offender: the Court declined to speculate adversely in the absence of evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(a) (using offensive weapon with intent to commit serious indictable offence; maximum penalty 12 years' imprisonment)
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm; maximum penalty 5 years' imprisonment)
Cases: No cases were cited in the decision text provided.