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Supreme Court 25 February 2021

R v Whiteley

[2021] NSWSC 153

Assault & violenceHomicide
CRIME MURDER SENTENCING INFANT VICTIM NO SUBSTANTIAL OFFENDING NO PRIOR ABUSE OR DOMESTIC VIOLENCE

Citation: R v Whiteley [2021] NSWSC 153
Court: Supreme Court of New South Wales
Date: 25 February 2021
Judge(s): Rothman J

Background

The offender, a man aged 26 at the time, had been in a relationship with the deceased's mother for only a few months before the offence. He was residing with her and her two young children at Tarro when, on 19 June 2018, he carried the deceased, a 20-month-old girl, to her bedroom to sleep. Within minutes, a loud bang was heard from that part of the house. The offender was the only person in the vicinity at the time.

The deceased was found in a severely injured state. She lost consciousness and stopped breathing. The offender attempted CPR and waited for an ambulance, but the child did not survive. Pathological evidence confirmed 29 separate injuries to the head, neck, and trunk, including subdural bleeding, multiple rib fractures, liver injuries, and abdominal bleeding, all caused by sudden extreme force.

The offender was tried by jury and found guilty of murder on 27 November 2020. He maintained his innocence throughout, and continued to deny guilt at the time of sentencing.

  • Where within the range of objective seriousness did this murder fall, given the victim's age and the nature of the assault?
  • What weight should be given to the standard non-parole period of 25 years, which applies where the victim is a minor?
  • What subjective factors (psychiatric condition, lack of prior offending, absence of prior domestic violence) affected the appropriate sentence?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the head sentence and non-parole period.

Decision

Rothman J applied the sentencing methodology described as "intuitive synthesis," weighing the objective seriousness of the offence against the offender's subjective circumstances. His Honour placed the offence above the mid-range for the murder of a minor but expressly found it was not in the worst category and did not approach the worst case of its kind. The intention was to cause grievous bodily harm rather than to kill, formed momentarily and spontaneously out of emotional dysfunction.

The Court found no history of prior abuse, domestic violence, or pattern of offending toward the children. The offender had no prior convictions. While the assault was severe and inflicted on a wholly defenceless infant, thereby increasing objective seriousness, the absence of premeditation and the psychiatric dimension of the offending were mitigating factors that reduced the weight otherwise attributable to general and specific deterrence.

On general deterrence, Rothman J found it remained a relevant factor but carried reduced weight because of the offender's psychiatric issues. Specific deterrence was similarly discounted, not because re-offending risk was absent, but because deterrence was unlikely to modify conduct driven by the identified psychological dysfunction.

His Honour found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), based on evidence that the offender's conditions of imprisonment were more onerous than usual, as confirmed by Corrective Services. This finding justified altering the standard statutory ratio between the head sentence and non-parole period, producing a longer balance of term than would otherwise apply.

Orders Made

  • The offender was convicted of murder committed on 19 June 2018.
  • Sentenced to imprisonment with a non-parole period of 24 years, commencing 2 August 2018 and concluding 1 August 2042.
  • Balance of term of 11 years, concluding 1 August 2053.
  • First eligible for parole on 1 August 2042.

Key Takeaways

  • The Supreme Court confirmed that even where the standard non-parole period for murder of a minor is 25 years, it operates as a guidepost rather than a mandatory minimum, and the sentencing court must still assess the objective seriousness of the particular offence within the full range of conduct captured by the charge.
  • A murder found to be above mid-range but not approaching the worst category, where intent was to cause grievous bodily harm rather than death, and where the intent was formed spontaneously, may attract a non-parole period below the standard guidepost.
  • Where an offender's psychiatric condition contributed to the offending, both general and specific deterrence carry reduced weight in the sentencing calculus, though they remain relevant considerations.
  • Special circumstances can be established by evidence of unusually onerous conditions of imprisonment, and such a finding justifies adjusting the statutory ratio between the head sentence and the non-parole period in favour of a longer parole supervision period.
  • The absence of prior offending, prior domestic violence, or any established pattern of abuse toward the victim remains a relevant mitigating factor in murder sentencing, even where the offence itself is objectively severe.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194