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District Court 4 June 2024

R v Whitfield

[2024] NSWDC 305

Assault & violencePublic order & justice offences

Citation: R v Whitfield [2024] NSWDC 305
Court: District Court of New South Wales
Date: 4 June 2024
Judge: Haesler SC DCJ

Background

The offender, a 23-year-old man with a lengthy criminal history dating back to before the age of 14, pleaded guilty to four serious offences arising from a sequence of events on 30 to 31 August 2022 in Port Kembla, NSW. The offending occurred only 40 days after his release from custody. His Honour had previously sentenced him in 2019 and expressed hope at that time that supports could be put in place to assist him in the community. That hope had not been realised.

The offending on 30 August 2022 began when the offender accompanied a co-offender to the home of her former partner, carrying a butcher's knife. Over the course of that afternoon and the following hours, the offending escalated across three separate victims: the former partner, a courier driver, and a man in a residential unit where the offender sought refuge. The offender was also charged with assaulting and resisting police officers when arrested later that day; those matters were placed on a Form 1 (meaning they were taken into account when imposing sentence on Count 4, rather than being dealt with as separate charges).

The offender had an extensive and complex personal history, including a traumatic and institutionalised childhood, childhood sexual abuse, significant mental health diagnoses (including Bipolar Disorder, Schizophrenia, Borderline Personality Disorder, ADHD, Oppositional Defiance Disorder, and Complex PTSD), and severe substance use disorder involving methylamphetamine and cannabis. Both parents had criminal histories, and the offender had been involved with police since early childhood.

  • What aggregate sentence was appropriate across four serious offences involving three separate victims, committed while the offender was on conditional liberty?
  • What weight should be given to the offender's traumatic background, mental illness, and disadvantage as mitigating factors, balanced against the need for community protection and victim vindication?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of sentence.
  • How parity principles applied in light of the co-offender's sentence.
  • Whether an Intensive Correction Order was an available or appropriate alternative to full-time imprisonment.

Decision

His Honour sentenced the offender on the basis of the Agreed Facts, declining to accept the offender's different account given to a psychologist. The court found that the offending, assessed on objective factors alone, did not fall at the highest or lowest end of the scale, but was nonetheless serious enough to justify custodial sentences for each count. Count 3, the attempted armed aggravated taking of the courier's van while armed with a knife, attracted the longest individual sentence of 2 years and 8 months.

The court applied a 10% reduction to each sentence to reflect the utilitarian value of the late guilty pleas, entered on 12 April 2024 after a trial date had been fixed. His Honour was careful to ensure that the process of accumulation did not erode that discount. An Intensive Correction Order was rejected as inappropriate given the nature and circumstances of the offending.

On subjective factors, the court acknowledged the significant weight of the offender's deeply disadvantaged background, mental health conditions, and history of institutionalisation, drawing on the principles in Bugmy v The Queen and R v Fernando. However, those factors were weighed against countervailing considerations, including the need for community protection, victim vindication, and the fact that the offending occurred across multiple victims while the offender was on conditional liberty and under the influence of methylamphetamine. Intoxication by methylamphetamine was treated as neither mitigating nor neutral, with the court noting it may have made the offender more dangerous and unpredictable.

Special circumstances were found to exist, justifying an extended parole period beyond the standard one-third of the sentence. The court expressed genuine concern about the risk of the offender being released without adequate support, observing that without intervention and resources, a longer period in custody unsupported would leave him worse off. His Honour expressly urged the State Parole Authority to put in place a program and procedures to address community safety before the non-parole period's expiry.

Orders Made

  • Count 1 (Armed with Intent to Intimidate): 1 year and 6 months imprisonment.
  • Count 2 (Assault Occasioning Actual Bodily Harm): 1 year and 4 months imprisonment.
  • Count 3 (Attempted Armed Aggravated Taking of Motor Vehicle): 2 years and 8 months imprisonment.
  • Count 4 (Intimidation, taking into account Form 1 matters of Assault Police and Resist Police): 11 months imprisonment.
  • Aggregate sentence: 3 years and 6 months imprisonment, commencing 6 October 2022.
  • Non-parole period: 2 years and 2 months, expiring 6 December 2024.
  • Balance of sentence: 1 year and 4 months, commencing 7 December 2024, expiring 6 April 2026.
  • Release to parole on 6 December 2024 subject to the State Parole Authority being satisfied that matters relating to community safety have been addressed.
  • Finding of special circumstances noted.
  • Each sentence reflects a 10% reduction for the utilitarian value of the guilty plea.

Key Takeaways

  • The District Court confirmed that intoxication by methylamphetamine does not mitigate sentence and may, in fact, aggravate the objective seriousness of offending by rendering the offender more dangerous and unpredictable.
  • A deeply disadvantaged background, childhood trauma, and multiple serious mental health diagnoses are recognised mitigating factors under the principles in Bugmy and Fernando, but they do not operate in isolation: where offending is serious, multi-victim, and committed in breach of conditional liberty, countervailing factors including community protection and victim vindication carry significant weight.
  • Special circumstances justifying a longer parole period are available where an offender's history of institutionalisation and complex needs mean extended supervised time in the community is in the interests of rehabilitation and public safety.
  • Aggregate sentencing across multiple counts requires care to ensure that the utilitarian discount for a guilty plea is not eroded by the accumulation of sentences, particularly where there are separate victims.
  • Where the court forms the view that an offender will be released without adequate support in a worse condition than when sentenced, it may expressly urge parole authorities to put in place programs and procedures to address that risk before the non-parole period expires.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 59(2), 60(1), 114(1)(a), 154C(2), 344A(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37
- Children (Criminal Proceedings) Act 1987 (NSW), s 15B

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Flanagan; R v Brennan (a pseudonym) [2019] NSWDC 306
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301