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District Court 24 April 2020

R v Whittall

[2020] NSWDC 146

DrugsPublic order & justice offences
SENTENCE INTIMIDATION SENTENCE AFTER TRIAL SENTENCE RELEVANT FACTORS ON SENTENCE FACT FINDING OFFENDER IN COMPANY

Citation: R v Whittall [2020] NSWDC 146
Court: District Court of New South Wales
Date: 24 April 2020
Judge: Haesler SC DCJ

Background

A jury convicted the offender of one count of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and acquitted him of entering a dwelling armed with a dangerous weapon under s 111(3) of the Crimes Act 1900. The offending arose from an incident in February 2019 when the offender and three others attended a residential address in Koonawarra to recover money or drugs they believed a local drug dealer owed them, and which they believed a third party, the occupant of the home, was holding on the dealer's behalf.

During the incident, which lasted less than a minute, the offender and his co-accused were armed, used threatening language, and pressured the occupant in front of his girlfriend. The occupant's partner gave evidence of genuine fear and distress. The co-accused also damaged a wall with a small axe as the group left.

Sentencing proceeded by Virtual Court. The offender was 21 years old at the time of sentencing, had a limited prior record, and was on bail for an earlier assault offence at the time the intimidation occurred.

  • What facts could be found proved for sentencing purposes, given the acquittal on the more serious armed entry charge, and what effect should that acquittal have?
  • Whether the offending fell toward the low end of the sentencing spectrum for intimidation.
  • Whether the Local Court sentencing jurisdiction and its lower maximum penalty were relevant to the District Court's sentencing exercise.
  • Whether an Intensive Corrections Order (ICO) was appropriate, including the community safety assessment required before such an order can be imposed.

Decision

Fact-finding after the acquittal

Haesler SC DCJ identified three possible explanations for the jury's acquittal on the armed entry count: a merciful verdict, a doubt as to whether the offenders entered without invitation, or a doubt as to whether the object the offender wielded was actually a dangerous weapon. Consistent with Olbrich v The Queen (1999) 199 CLR 270, the sentencing judge was required to give full effect to the acquittal. Accordingly, his Honour proceeded on the basis that the offender could not be found to have been armed with a weapon capable of inflicting harm beyond reasonable doubt, but accepted that he was wielding an object the victims genuinely believed to be a TASER. The court found that four men attended Sheffield's home together for mutual support, each armed, to enforce a perceived drug-related debt.

Seriousness of the offending

His Honour rejected the submission that the offending fell toward the low end of the spectrum. Armed men entering another person's home to enforce a debt, in the presence of that person's partner, could not meet that description. The offending occurred in a domestic setting, involved multiple offenders acting in concert, and arose in the context of broader drug-related criminal activity. The offender was also on bail at the time, which the court treated as an aggravating factor.

Local Court jurisdiction

The offender argued that, following acquittal on the purely indictable charge, the intimidation count could theoretically have been dealt with in the Local Court, attracting a lower maximum penalty. His Honour rejected this, finding that the intimidation count was too closely interconnected with the solely indictable offence for Local Court disposition to have been a realistic possibility. Relying on Zreika v R [2012] NSWCCA 44, the court held this was not a matter that "ought to have remained in the Local Court."

Intensive Corrections Order

His Honour found that the seriousness of the offending required a custodial sentence. However, having regard to the offender's youth, disadvantaged background, amenability to intervention, recent positive steps including employment and family stability, and the community safety considerations set out in Karout v R [2019] NSWCCA 253 and Fangaloka v R [2019] NSWCCA 173, the court concluded that community safety could best be served by encouraging positive behavioural change rather than by full-time imprisonment. An ICO was accordingly imposed, with conditions including supervision, community service, and participation in programs targeting aggression, substance use, and impulsive behaviour.

Orders Made

Possess prohibited drug (cannabis): Convicted; no other penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

Intimidation (s 13(1), Crimes (Domestic and Personal Violence) Act 2007): Convicted. Sentenced to 18 months imprisonment to be served in the community by way of an Intensive Corrections Order, commencing 24 April 2020, with the following conditions:
- Be of good behaviour
- Accept supervision and direction from Community Corrections and engage in the supervision plan
- Complete 150 hours of community service
- Report to Community Corrections by telephone by 30 April 2020

Key Takeaways

  • Where a jury acquits on a more serious count, the sentencing court must give full effect to that acquittal. Under the principles in Olbrich v The Queen, aggravating facts must be proved beyond reasonable doubt, and the court here declined to find that the object wielded constituted a dangerous weapon capable of causing harm.

  • Intimidation committed in company, while armed, inside another person's home, for the purpose of enforcing a drug debt did not fall toward the low end of the sentencing range, even after giving the offender the full benefit of his acquittal on the armed entry charge.

  • The theoretical availability of Local Court jurisdiction does not automatically warrant sentencing on the basis of the Local Court's lower maximum penalty. Where the charge was indissociable from a solely indictable count, the matter cannot be characterised as one that "ought to have remained in the Local Court."

  • Community safety, as required to be considered before an ICO is imposed under the Court of Criminal Appeal's guidance in Karout and Fangaloka, is not achieved solely by full-time imprisonment. In appropriate cases, it can be better served by supervised community-based orders that support behavioural change.

  • An ICO, though reflecting some degree of leniency, remains a sentence of imprisonment and can satisfy the purposes of sentencing, including general and specific deterrence and victim recognition, where the offender's profile indicates genuine prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(3), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Fangaloka v R [2019] NSWCCA 173
- Karout v R [2019] NSWCCA 253
- McCullough v R (2009) 194 A Crim R 439
- Olbrich v The Queen (1999) 199 CLR 270
- Pullen v R [2018] NSWCCA 26
- Zreika v R [2012] NSWCCA 44