Citation: R v Whitmore [2024] NSWDC 617
Court: District Court of New South Wales
Date: 9 December 2024
Judge(s): Noman SC DCJ
Background
The offender, a 32-year-old Aboriginal man with a confirmed intellectual disability, appeared for sentencing after pleading guilty to nine offences committed across four days in February 2023. The offences included aggravated break and enter, break and enter, entering a dwelling with intent, taking and driving conveyances, obtaining property by deception using stolen credit cards, and driving while disqualified.
At the time of all offending, the offender was on bail for earlier driving and dishonesty offences and was also subject to two Community Corrections Orders. He had spent more than eight of the preceding twelve adult years in custody. A psychologist assessed him as institutionalised, and both a Sentencing Assessment Report and a psychological report documented a traumatic background, a history of illicit substance use, mental health difficulties, and the offender's claim that he was in a psychotic state at the time of the offending.
Two separate custodial sentences had been imposed on the offender during the remand period relating to these index offences: a four-month non-parole period for a November 2022 dishonesty offence, and a twelve-month non-parole period for an offence committed on 23 February 2023, proximate in time to the index offending.
Legal Issues
- What were the appropriate indicative sentences for each of the nine offences, after applying a 25% guilty plea discount?
- How should the principle of totality apply given concurrent sentences imposed during the remand period?
- Whether special circumstances existed to justify a variation from the statutory non-parole period ratio.
- What weight should be given to the offender's criminal history, breach of conditional liberty, intellectual disability, mental health, and prospects of rehabilitation?
Decision
His Honour assessed the objective seriousness of each offence individually. The aggravated break and enter on 25 February 2023, in which the offender entered an occupied home, caused substantial property damage, and behaved erratically in the presence of a mother and her two adult children, was assessed as the most serious offence, falling below mid-range. The second and third offences, involving a return visit to a previously burgled home using keys stolen in the first break-in, were assessed as relatively serious due to the element of forethought. The remaining offences were characterised as lower-level property and traffic offending.
The offender's criminal history, which began in 2011 and included prior custodial sentences for dishonesty and property offences, was treated as disentitling him to leniency rather than as a standalone aggravating feature. The offending on conditional liberty, including breach of bail and two Community Corrections Orders, was treated as an aggravating factor reflecting a breach of trust. The guilty pleas, entered in the Local Court, attracted a 25% reduction across all offences.
His Honour accepted the submission that special circumstances existed, grounded in the accumulation of sentences, the need to promote rehabilitation, the risk of institutionalisation confirmed by the psychologist, and the offender's need for structured reintegration into the community. Accordingly, the non-parole period was set at 50% of the total sentence rather than the standard two-thirds ratio. In applying totality, His Honour acknowledged significant concurrency between the index offending and the twelve-month non-parole period previously imposed for the proximate February 2023 offence.
Orders Made
- The offender was convicted of all nine offences.
- An aggregate sentence of 4 years and 6 months imprisonment was imposed, with a non-parole period of 2 years and 3 months, commencing 1 December 2023.
- The offender is eligible for release to parole on 28 February 2026, with the sentence expiring on 31 May 2028.
- A 12-month automatic licence disqualification period was imposed for the drive while disqualified offence.
Indicative sentences (each reduced by 25%) were nominated as follows:
- Aggravated break and enter: 3 years, with a non-parole period of 18 months
- Break and enter house: 2 years and 3 months
- Enter dwelling with intent: 1 year and 9 months
- Take and drive conveyance (first): 18 months
- Take and drive conveyance (second): 14 months
- Dishonestly obtain property by deception (first, including Form 1 matters): 10 months
- Drive while disqualified: 4 months
- Dishonestly obtain property by deception (second, including Form 1 matter): 9 months
- Dishonestly obtain property by deception (third, including Form 1 matter): 9 months
Key Takeaways
- A criminal record involving prior custodial sentences for similar offending was treated as disentitling the offender to leniency, but the District Court declined to treat it as a formal aggravating factor in the Crown's terms.
- Offending while on bail and subject to Community Corrections Orders constituted an aggravating circumstance, characterised by the court as a breach of trust.
- Special circumstances were found to exist where an offender faces an accumulation of sentences, carries a confirmed intellectual disability, has been assessed as institutionalised, and requires structured support upon reintegration into the community.
- In applying the totality principle, the sentencing court took into account two custodial sentences imposed during the remand period, one of which related to offending that was proximate in time and type to the index offences.
- Guilty pleas entered at the Local Court stage attracted the full 25% sentencing discount across all nine offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 111(1), 111(2), 112(1)(a), 112(2), 154A(1)(a), 192E(1)(a)
- Road Transport Act 2013 (NSW), s 54(1)(a)
Cases: No specific cases were cited in the judgment.