Citation: R v Whitmore [2024] NSWDC 115
Court: District Court of New South Wales
Date: 12 April 2024
Judge: Abadee DCJ
Background
The offender was a resident at a holiday resort in Wyong who knew the victim through the victim's role as the property caretaker. The offender became aware that the victim had taken a photograph of his then-partner's 12-year-old daughter. On the evening of 1 April 2023, after his partner disclosed the circumstances of the photograph to him, the offender went to the victim's unit at approximately 10pm and entered it.
Once inside, the offender demanded the victim's phone and assaulted him, punching him multiple times to the face and ribs. The victim later attended Wyong Hospital, where scans indicated facial bruising and possible rib injuries.
The offender faced two counts at trial: aggravated breaking and entering with commission of a serious indictable offence (the more serious count), and assault occasioning actual bodily harm. The jury acquitted him on the breaking and entering count, finding the Crown had not proved he forced the door open. The offender had pleaded guilty to the assault count during the trial, having previously offered that plea at a case conference in the Local Court, which the Crown had rejected.
Legal Issues
- What injuries were actually sustained by the victim, and to what extent was the offender responsible for them, given the jury's acquittal on the more serious count?
- What was the offender's motive, and how did it bear on the objective seriousness of the offending?
- Whether the offender had demonstrated genuine remorse
- Whether the fact that the offence could have been dealt with summarily was relevant to sentencing
- Whether the offender's background and treatment needs warranted a finding of special circumstances (justifying a longer parole period relative to the overall sentence)
Decision
Fact-finding on injuries: Abadee DCJ emphasised that a jury's acquittal on the more serious count did not prevent the sentencing judge from making independent findings about the nature and extent of the victim's injuries. The jury had not needed to resolve the injury question at trial because the offender had conceded actual bodily harm as part of his guilty plea. The judge found that the offender punched the victim on the right side of his ribs, consistent with the victim's account and supported by contemporaneous hospital scans. However, given a Crown concession that it was uncertain whether any rib fracture was caused by the offender rather than another source, the judge found only that the extent of rib injury from the offender's punch was uncertain.
Objective seriousness and motive: The offending was assessed as falling within the mid-range of objective seriousness, at the lower end of that range. His Honour accepted that the offender's motive involved a concern about photographs of a child, informed in part by the offender's own history of sexual abuse. However, the judge found the offender had adopted a preconceived and unjustified view that the photograph was not innocent and that the victim had likely taken others. The offender's conduct reflected a belief he was entitled to demand and, if necessary, seize the victim's phone. That motive, while understandable in a limited sense, did not excuse the assault.
Remorse and guilty plea discount: The judge accepted the offender was entitled to a 25% discount on his sentence, reflecting his guilty plea offered at the case conference in the Local Court. The judge also accepted some remorse, though noted that certain statements made to the offender's psychologist went beyond what had been given in evidence at trial, and treated those with some caution.
Special circumstances and sentencing: The judge found special circumstances based on the offender's need for meaningful treatment programs in custody and the risk of institutionalisation, justifying a longer parole period than the statutory default ratio. A modest backdating of the sentence commencement date was applied on totality grounds, given the offender had been in custody on unrelated matters since May 2023.
Orders Made
- The offender was convicted of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW).
- Sentenced to 1 year and 8 months' imprisonment, commencing 15 October 2023 and expiring 14 June 2025.
- Non-parole period of 1 year, expiring 14 October 2024, after which the offender is eligible for release on parole.
Key Takeaways
- A sentencing judge is not bound by a jury's acquittal when making factual findings about the extent of injuries for sentencing purposes, particularly where the jury did not need to resolve that question in reaching its verdict.
- The District Court confirmed that an offender's motive, even where it involves a genuine belief about protecting a child, does not reduce the criminality of a violent assault, though it may be considered as part of the overall sentencing picture.
- Where the Crown makes a concession at sentencing that a particular injury cannot be attributed to the offender beyond reasonable doubt, the sentencing court will act on that concession and limit its findings accordingly.
- A guilty plea offered at a Local Court case conference but rejected by the Crown can still attract a discount at sentencing, reflecting the utilitarian value of the offer even where it was not accepted at that stage.
- The jurisdictional limit of the Local Court (that is, the fact that an offence could theoretically have been dealt with summarily) is neither binding on the District Court nor a particularly influential consideration when the objective seriousness and aggravating factors of the offending warrant a more substantial sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2)
- Criminal Procedure Act 1986 (NSW), sch 1
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- R v Muldrock (2011) 244 CLR 120
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1