Citation: Regina v Whitmore [1999] NSWCCA 75 revised - 13/08/99
Court: NSW Court of Criminal Appeal
Date: 24 July 1998
Judge(s): Mason P, Grove J, James J
Background
The appellant, a man aged 66 at the time of the offence, was convicted of murder following a trial in the Supreme Court at Newcastle before Newman J. He had been in a seven-month extramarital affair with the victim, a 53-year-old woman. When she decided to return to her husband, the appellant shot her between the eyes with a pistol he was licensed to possess as a shooting club member.
The killing occurred on 1 May 1996. Newman J sentenced the appellant to 25 years penal servitude with a minimum term of 15 years, dating from the day of arrest. The appellant sought leave to appeal against the severity of that sentence.
Legal Issues
- Whether the sentencing judge erred in finding that the appellant had a dangerous propensity to attack women with whom he formed relationships when problems arose
- Whether the sentencing judge gave insufficient weight to the appellant's advanced age (66 at the time of the offence)
- Whether the sentence was manifestly excessive, including whether the offence fell within a less serious category of "ordinary domestic murder"
Decision
On the propensity finding, the Court of Criminal Appeal found no error in Newman J's conclusion. The sentencing judge had relied on a prior 1968 conviction for maliciously inflicting grievous bodily harm on the appellant's then-wife, as well as the opinions of a consultant psychiatrist, Dr Strum. The Court noted that Dr Strum's qualified assessment, that the appellant posed no danger to the community generally but could reoffend if he formed a new relationship that went wrong, supported rather than undermined the propensity finding.
On the question of age, the Court accepted that Newman J was plainly aware of the appellant's age and had expressly considered statistical life expectancy. His Honour had already extended the additional term component of the sentence to give the appellant some prospect of parole. The Court found no basis to interfere with that discretionary exercise.
The Court firmly rejected the submission that there is a recognised category of "ordinary domestic murder" carrying a lower sentencing range. Grove J acknowledged that domestic killings sometimes involve mitigating circumstances, such as prolonged tension or stress within a relationship, but stressed that this does not create a distinct and lesser classification. The facts here, including the coded message the victim sent to her husband moments before she was killed, evidence of some premeditation, the appellant's lack of remorse, and his callous conduct afterward, placed the case well outside any such characterisation.
The Court granted leave to appeal but dismissed the appeal and confirmed the sentence, finding the orders were within the range of a sound exercise of sentencing discretion.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Sentence confirmed
Key Takeaways
- A propensity finding under sentencing principles need not relate to danger to the community at large. The Court of Criminal Appeal confirmed it is sufficient if the evidence demonstrates that a particular class of person, here women with whom the appellant formed a relationship, would be at acute risk.
- Premeditation does not require extended planning. The Court found that the victim's coded distress call, combined with the appellant obtaining his firearm and shooting at point-blank range, constituted sufficient evidence of premeditation even without prolonged forethought.
- There is no recognised sentencing category of "ordinary domestic murder" or equivalent label carrying a lighter sentencing range. Each case must be assessed on its own facts, and the existence of a relationship between offender and victim does not of itself constitute a mitigating circumstance.
- In dismissing the age-based ground, the Court confirmed that advanced age is a factor to be weighed in the overall discretionary exercise, not a trump consideration. Where the sentencing judge expressly addressed that factor and adjusted the sentence structure accordingly, an appellate court will not intervene absent identifiable error.
- Callous post-offence conduct, including telephoning the victim's husband to invite him to "collect the body," was treated as relevant to the sentencing judge's overall assessment of the gravity of the offence and the absence of remorse.
Legislation and Cases Referenced
Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465 (dangerous propensity and sentencing)
- R v Holyoake (1995) 82 A Crim R 502 (age as a sentencing factor)
- R v Yates [1985] VR 41 (age as a sentencing factor)
Legislation:
- Sentencing Act (NSW), s 17 (duty of the Parole Board when considering release)