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Court of Criminal Appeal 24 December 2002

R v Whitfield [2002] NSWCCA 501 revised - 8

[2002] NSWCCA 501

Homicide
CRIMINAL LAW MURDER CONVICTION APPEAL SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: R v Whitfield [2002] NSWCCA 501 revised - 8/07/2003
Court: NSW Court of Criminal Appeal
Date: 24 December 2002
Judges: Heydon JA, Hulme J, Carruthers AJ

Background

The appellant, a young Aboriginal man aged seventeen at the time of the offence, was convicted of the murder of a 56-year-old man at Berkeley (Wollongong) in the early hours of 11 January 1999. The appellant had organised and led a group of four offenders, including co-offenders aged fifteen, twelve, and twelve, to break into the victim's home to rob him of valuables. The group armed themselves with knives and a metal bar from a supermarket trolley and wore homemade balaclavas.

During the robbery, the victim was fatally stabbed. The sentencing judge found that the appellant inflicted all three stab wounds, which caused the victim's death, and that the appellant intended at least to cause very serious injury. The victim also suffered a fractured skull from a blunt object, though the sentencing judge could not attribute that injury to the appellant.

The appellant was convicted by jury on 1 May 2001 and sentenced to twenty years imprisonment with a non-parole period of thirteen years, commencing 16 January 1999. He appealed against both conviction and sentence.

  • Whether the trial judge erred by directing the jury on an alternative basis for conviction (felony murder arising from joint criminal enterprise) that had not been canvassed by the prosecution, thereby placing the appellant at a tactical disadvantage and rendering the trial unfair.
  • Whether the trial judge erred in his directions to the jury on voluntariness and accident.
  • Whether the sentencing judge erred by making no adjustment to the sentence to account for the appellant's Aboriginality.
  • Whether the sentencing judge gave sufficient consideration to the appellant's youth.
  • Whether the sentences imposed were manifestly excessive.

Decision

Conviction appeal: alternative jury direction

The Court dismissed the argument that the trial judge's direction on an alternative basis for conviction, not specifically advanced by the prosecution, rendered the trial unfair. The Court found that the appellant was not placed at a tactical disadvantage of the kind that would justify overturning the conviction.

Conviction appeal: voluntariness and accident

The Court also rejected the contention that the trial judge misdirected the jury on voluntariness and accident. No error was established in those directions sufficient to warrant setting aside the verdict.

Sentence appeal: Aboriginality

The Court acknowledged the argument that the sentencing judge made no adjustment for the appellant's Aboriginality, but concluded that even had such an adjustment been made, the resulting sentence would still have fallen within the available sentencing discretion. The head sentence and non-parole period were not shown to be outside the range open to the judge.

Sentence appeal: youth and manifest excess

The Court noted that the sentencing judge had already reduced the non-parole period to 65% of the head sentence, in part to reflect the appellant's youth at the time of the offence. The Court found that a thirteen-year non-parole period for a crime of this seriousness was well within the discretion available to the sentencing judge. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A trial judge's direction on an alternative basis for conviction, even where not specifically advanced by the prosecution, will not automatically render a trial unfair; the appellant must demonstrate a real tactical disadvantage flowing from the absence of prior notice.
  • In dismissing the sentence appeal, the Court of Criminal Appeal applied the principle from R v Simpson (2001) 126 A Crim R 525, confirming that it must form a positive opinion that some other sentence is warranted in law before it can intervene, not merely identify that an error may have occurred.
  • Where a sentencing judge omits an adjustment for an offender's Aboriginality, the sentence may still stand if it would have remained within the available discretionary range even with such an adjustment applied.
  • Reduction of the non-parole period as a proportion of the head sentence (here, to 65%) was treated as a meaningful, if partial, recognition of the appellant's youth at the time of the offence.
  • Sufficient evidence of planning, leadership, and the infliction of multiple serious wounds supported the jury's verdict and the sentencing judge's findings, notwithstanding the appellant's age and the involvement of significantly younger co-offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1), 98
- Criminal Code (Qld), s 23(1)
- Criminal Code (WA), s 23

Cases
- Bratty v Attorney General for Northern Ireland [1963] AC 386
- Browne v Dunn (1896) 6 R 67
- Falconer v The Queen (1990) 171 CLR 30
- Murray v The Queen [2002] HCA 26
- R v McLeod (CCA, 28 May 1991, unreported)
- R v Mullen (1938) 59 CLR 124
- R v Sharah (1992-1993) 30 NSWLR 292
- R v Simpson (2001) 126 A Crim R 525
- R v Solomon [1980] 1 NSWLR 321
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Ryan v The Queen (1967) 121 CLR 205
- Ugle v The Queen [2002] HCA 25