Patrick v The Queen; Whitney v The Queen

[2020] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Patrick v R; Whitney v R [2020] NSWCCA 63
Hearing dates:	6 March 2020
Decision date:	15 April 2020
Before:	Meagher JA at [1]; Harrison J at [2]; Button J at [3]
Decision:	Applicant Patrick: (1) Grant leave to appeal. (2) Dismiss the appeal.  Applicant Whitney: (1) Grant leave to appeal. (2) Uphold the appeal. (3) Quash the sentence imposed by Judge Colefax SC on 30 January 2019. (4) In substitution, Ainsley Whitney is sentenced to a non-parole period of three years to commence on 1 October 2018 and expire on 30 September 2021, to be followed by a parole period of one year, to expire on 30 September 2022. (5)The first date upon which it appears that Mr Whitney is eligible for possible release to parole is 30 September 2021.
Catchwords:	CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in finding the offence of reckless wounding was aggravated by planning – whether sentences manifestly excessive – appeal dismissed   CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in finding that the offence was planned – whether error established in finding offenders shared equal criminal and moral culpability – whether error in assessing objective seriousness – whether error in calculation of the commencement date of sentence – whether sentence manifestly excessive – error in calculation established – commencement date adjusted without consideration of substantive re-sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 345 Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(2)(n)
Category:	Principal judgment
Parties:	Shane Patrick (Applicant) Ainsley Whitney (Applicant) Regina (Crown)
Representation:	Counsel: S Schaudin (Applicant Patrick) P Krisenthal (Applicant Whitney) E Wilkins SC (Crown)   Solicitors: George Sten & Co (Applicant Patrick) Legal Aid NSW (Applicant Whitney) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/373257; 2016/3214512017/21272
Publication restriction:	Pseudonym adopted for one person
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 30 January 2019 Before: Colefax SC DCJ File Number(s): 2016/373257; 2016/321451 (Patrick) 2017/21272 (Whitney)

Judgment

1. MEAGHER JA: I agree with Button J.

2. HARRISON J: I agree with Button J.

3. BUTTON J:

Introduction

4. On 30 January 2019, Mr Shane Patrick and Mr Ainsley Whitney (the applicants) were sentenced by his Honour Judge Colefax SC in the District Court sitting at Parramatta. Each seeks leave to appeal against the aggregate sentence imposed upon him.

5. Each of them had pleaded guilty to an offence of reckless wounding in company, which each had committed with the other. The maximum penalty for that offence is imprisonment for 10 years, and there is also a standard non-parole period of 4 years.

6. Mr Patrick had also admitted his guilt of a number of further offences, as follows.

7. The first was an offence of knowingly taking part in the supply of a prohibited drug, namely methylamphetamine. The maximum penalty for that offence is imprisonment for 15 years. Two matters of possessing a prohibited drug (a wholly summary offence that carries a maximum penalty of imprisonment for 2 years) were taken into account in sentencing for that offence by way of a Form 1.

8. The second of the further substantive offences was the possession of an unauthorised firearm, an offence that carries a maximum penalty of imprisonment for 5 years and has no standard non-parole period. That had “attached” to it a further offence on a separate Form 1, namely possessing an unregistered firearm, an offence that carries a maximum penalty of imprisonment for 14 years on indictment if the firearm is a pistol or a prohibited firearm, and 5 years in any other case.

9. The learned sentencing judge imposed upon Mr Patrick an aggregate sentence of 5 years 6 months, with an aggregate non-parole period of 4 years 1 month. The sentence commenced on 13 December 2016; the non-parole period expires on 12 January 2021; and the aggregate head sentence will expire on 12 June 2022.

10. The indicative sentences provided in the case of Mr Patrick were as follows. Four years for the offence of reckless wounding in company that he shared with Mr Whitney; 1 year 4 months for the drug offence, taking into account the two matters on the Form 1; and 1 year 2 months for the possession of the unauthorised firearm, taking into account the other matter on the other Form 1.

11. Attached to this judgment is a diagram that sets out the aggregate sentence and indicative sentences of Mr Patrick in readily comprehensible form.

12. As for Mr Whitney, after adopting a starting point of 4 years 6 months, the sentencing judge fixed a head sentence of imprisonment for 4 years, with a non-parole period of 3 years, each to date from 30 October 2018. The non-parole period will expire on 29 October 2021, and the sentence in its entirety on 29 October 2022.

13. Both applicants had received discounts upon the starting points of their individual sentences, whether imposed or indicative. Mr Patrick received a 10% discount for his late pleas of guilty to the reckless wounding and to the knowingly take part in the supply of drugs offence. He also received a 20% discount for pleading guilty upon his first arraignment in the District Court to the unauthorised firearm offence. As with Mr Patrick, Mr Whitney received a 10% discount for his late plea of guilty in relation to the reckless wounding.

Objective features of the shared reckless wounding in company

14. The following is derived from the pertinent agreed facts document (the facts) tendered in the proceedings sentence, and the adoption of them in the remarks on sentence (ROS).

15. At the time of the offence, the applicants were friends of Mr Argus (a pseudonym that I have adopted pursuant to suppression orders), who was involved in the distribution of prohibited drugs. Ms Aaroha More (the victim) had been in a romantic relationship with Mr Argus since March 2016, and had moved in with him at premises in Blacktown the following month.

16. Within a matter of months, there was some tension within their relationship. On 13 October 2016, the applicants agreed to evict the victim from the home that she shared with Mr Argus, with the connivance of the latter. Both applicants went to the residence of Mr Argus and the victim “in anticipation that something inappropriate or untoward may occur to [her]” ([8] of the facts).

17. Prior to doing so, a number of text messages passed between Mr Patrick, Mr Whitney, and Mr Argus. They are recounted in the facts verbatim. Some of the most salient are as follows. Mr Patrick sent a text to Mr Argus “Tell her to pack what hers take everything you gave her see you soon bro”. That was followed by an additional text which read “Ainsley and I got this bro just say nothing mate. I’ll have two car loads of boys”. Mr Whitney sent a text to Mr Argus which read “Brother you better be 100% cause really were on the way and I would be honest now cause I don’t want use hardware. Brother this is for you as much as it is all us”.

18. At about 8:00 or 9:00 pm that evening, the victim was at home. She saw, by way of CCTV installed there, the vehicle of Mr Patrick in the driveway. She then heard Mr Argus talking to two men, whom she recognised to be the applicants. She heard one of the applicants say something to the effect of “Where is she?” ([10] of the facts).

19. The victim ran into her bedroom in fear. She grabbed a knife because she believed she “was going to have to defend [herself]” ([5] of the facts). She then went to the top of the staircase. She could see Mr Whitney standing at the bottom of the staircase and hear Mr Patrick talking. She walked back into her bedroom, frightened.

20. A few minutes later, both the offenders had ascended to the top of the stairs. The victim came out of the bedroom still holding the knife. There was a commotion between the victim and the two applicants about her alleged interference in other people’s friendships, and furthermore in the drug business of Mr Argus.

21. Mr Patrick had armed himself with a steel chain, which was approximately one metre long. It had a small metal padlock attached to one end. He had armed himself with it whilst downstairs, by removing it from a bicycle that was there. Mr Patrick raised his arm and the chain in a swinging motion, resulting in the padlock striking the victim in the head, in the manner that one would use a small flail. Blood poured out of her head, and covered her face and the floor. She was in excruciating pain, and felt dazed and tearful. The attack blurred her vision. The victim had to lean on the wall to prevent herself from falling over.

22. Clearly enough, by their pleas of guilty the applicants accepted that Mr Patrick was the principal in the first degree in the wounding. Mr Whitney was either a principal in the first degree by way of being present pursuant to a joint criminal enterprise with regard to reckless wounding in company, or, at the least, a principal in the second degree who was present encouraging or assisting the primary perpetrator.

23. Immediately after she was struck, the victim charged at Mr Patrick with the knife. Both applicants retreated down the stairs and left the premises. Thereafter, the victim lay on the floor of the bedroom “as blood was pouring out of her head” ([18] of the facts).

24. Some time later, the victim walked to a pizza shop with “blood all over her” ([20] of the facts). Police and ambulance were called, and the “job” was broadcast over police radio at 10:38 pm. In other words, the period that passed between the victim observing the applicants on the CCTV (at the latest, about 9 pm), after which one can readily infer that the attack promptly occurred, and an ambulance being called by uninvolved persons so that her injuries could be treated, was something in the order of 1 ½ hours.

25. The victim was subsequently treated at a nearby hospital. The wound to her head was closed by way of five surgical staples.

26. Later again, a chain and padlock were located and seized by police at the home of Mr Argus.

27. A victim impact statement (VIS) tendered in the proceedings spoke of the significant psychological trauma that the victim had endured after the offence. Having said that, in the remarks on sentence, the sentencing judge noted that that the VIS referred to two offences having been committed against its author, not one. As a result, the sentencing judge came to the view that he was “not satisfied that the totality of her complaints arise solely from the one incident as described in the revised statement of facts” [ROS 66].

Objective features of the other offences of Mr Patrick

28. Considering now the other offences of Mr Patrick that he did not share with Mr Whitney, the first was the offence of knowingly take part in the supply of a prohibited drug. This involved Mr Argus who, as I have said, was involved in supplying methylamphetamine.

29. The drug operation of Mr Argus had become the subject of a police investigation. On 22 August 2016, an undercover operative liaised with Mr Argus regarding the purchase of 28.35 grams (or an ounce) of methylamphetamine for $5,500. At the time of the communication, Mr Argus did not possess that amount of the drug.

30. Through a series of text messages, it was Mr Patrick who arranged for Mr Argus to acquire that quantity of drugs from an upline supplier to Mr Argus.

31. On 23 August 2016, Mr Argus provided that quantity of methylamphetamine, with a purity of 79.5%, to undercover operatives.

32. Following the drug transaction, a search warrant was executed at the home of Mr Patrick. It was there that a .177 Gecado air rifle was found in the garage, and Mr Patrick was subsequently charged with the offence of possessing an unauthorised firearm. The firearm itself was not then in working order, because of a missing barrel screw.

33. In relation to the principal drug offence, as I have said there were two possession charges taken into account on a Form 1. They related to 5.5 grams of cannabis and 0.24 grams of cocaine.

34. A separate Form 1 “attached” to the offence of possessing an unauthorised firearm took into account the offence of possessing an unauthorised firearm, namely a rifle stock with barrel unattached. The agreed facts do not indicate whether that charge pertained to the same gun as the substantive firearm offence, though I have proceeded on the assurance of counsel for Mr Patrick before this Court that it did.

Assessment of objective seriousness and moral culpability with regard to the shared wounding

35. With regard to the assessment of objective seriousness and moral culpability pertaining to each applicant with regard to the wounding, it is convenient to set out the entirety of the relevant portion of the remarks on sentence.

“In terms of its objective seriousness for an offence of its kind, it is a mid-range offence.

The offence was aggravated: by the use of a weapon; because it occurred in the victim’s home; and because it had some degree of planning – it was certainly not a spontaneous or opportunistic offence – although this is yet a further opaque aspect of the revised statement of facts.

Although it was you, Mr Patrick, who actually struck the blow, you, Mr Whitney, were present and willing to assist and you must have realised what was going to occur in relation to that chain given the agreed purpose of your presence in that home unit.

Each of you is, therefore, equally criminally and morally culpable for what occurred.” [ROS 60-63]

Assessment of objective gravity of the other offences of Mr Patrick

36. As for the substantive drug offence, the sentencing judge found that Mr Patrick neither played a crucial role nor was substantially involved in the drug transaction. Having said that, his role was found to be “one which allowed the transaction to be facilitated” [ROS 74], and therefore it was characterised as “towards but not at the bottom of the range” [ROS 75] of objective seriousness for an offence of its kind.

37. The sentencing judge made a similar assessment of the objective seriousness of the substantive gun offence by indicating that “it is towards but not at the bottom of the range” [ROS 80] of offences of its kind.

Subjective features of Mr Patrick

38. Leaving aspects of the offences and turning to the applicants themselves, Mr Patrick was 36 years of age at the time of the offending.

39. He was found to have had an unremarkable childhood and to have enjoyed a household characterised as loving. Although Mr Patrick left the family home at the age of 17 due to a growing resentment at their attempt to apply discipline to him, he had maintained a stable relationship with his family, who remained supportive of him.

40. After leaving high school in Year 9, Mr Patrick undertook a variety of work, but was mainly employed as an excavator in the landscaping industry.

41. In 2013, he suffered a knee injury at work resulting in surgery, continuous pain, and regular medication.

42. Since the age of 17, Mr Patrick regularly used cannabis up until his incarceration. In 2014, he also began to use methylamphetamine in its crystal form. While it was submitted that his growing use of ice was nothing more than a form of self-medication for pain relief, the submission was rejected by the sentencing judge.

43. Mr Patrick is the father of two children who had been placed in the care of his parents in Queensland following a deterioration in his relationship with his partner subsequent to his arrest.

44. He was found to have a relatively limited criminal record, unblemished by a recurring theme of violence, and reasonable prospects for rehabilitation.

45. Having said that, the sentencing judge did not find there to be genuine remorse and acceptance of the criminality pertaining to the reckless wounding.

46. Between Mr Patrick’s arrest on 13 December 2016 and the date of imposition of sentence, he had, to his credit, abstained from using drugs in custody.

Subjective features of Mr Whitney

47. As for the life and character of Mr Whitney, he was aged 24 at the time of the offence, and 26 years at the time of sentencing.

48. There was little subjective material tendered on his behalf in the proceedings on sentence, besides a minimalist sentencing assessment report and two character references.

49. As a result, little was known to the sentencing judge about his upbringing, education or employment history. It was however established that he was not employed at the time of the offending, and was a father to five children.

50. There was no evidence of any substantial disabilities of a physical, intellectual, or emotional kind.

51. Mr Whitney appeared to have a problem with cannabis and began to develop a dependence upon crystal methylamphetamine (ice) from 2015. He also appeared to have some anger management issues.

52. The two references spoke of him being a doting and committed father to all of his children; having been a quick learner and hard worker throughout his employment in various positions; having shown a degree of stability when he resided with his mother; and being an active and respected member of a local baseball club. Some aspects of the sentencing report were also positive: he accepted responsibility for his actions and appeared to be ashamed of them; he had removed himself from the negative social influences that may have influenced his criminal offending; and had received help from a cannabis rehabilitation clinic. On the other hand, the report also suggested that Mr Whitney presented a medium risk of reoffending and, as I have said, had some unresolved anger management problems.

53. Regrettably, the criminal record of Mr Whitney was quite lengthy, and featured numerous entries for violence, as follows. His offending began in 2011 with a common assault. Later that year, he committed an offence of stalk or intimidate with intent to cause fear of physical or mental harm. Throughout 2012, he was convicted of an affray, an assault occasioning actual bodily harm in company, and three separate incidents of common assault, including in the context of domestic violence. In 2017, he was convicted of a further common assault. He had spent short periods in custody before the commission of the offence of reckless wounding in company. On the other hand, all of his convictions had been entered in the Local Court.

54. Mr Whitney was not found to be genuinely remorseful by the sentencing judge, and his prospects of rehabilitation were characterised as poor.

Grounds of appeal of Mr Patrick

55. Mr Patrick notified and pressed the following grounds of appeal.

Ground 1: His Honour erred in his assessment of the objective seriousness of the 'reckless wounding in company' offence.

Ground 2: His Honour erred in finding the offence of 'reckless wounding in company' was aggravated pursuant to s 21A(n) of the Crimes Sentencing Procedure Act [in] that it was part of a planned or organised criminal activity.

Ground 3: The aggregate sentence is manifestly excessive in being disproportionate to the totality of the applicant's criminality.

Ground 1: His Honour erred in his assessment of the objective seriousness of the 'reckless wounding in company' offence.

56. Counsel for Mr Patrick asserted that it was not reasonably open for the sentencing judge to find that the attack was a mid-range offence, because the applicants did not attend the premises intending to commit a reckless wounding. The point was also made that the injury incurred was not the worst example of the injury caused by offences of this kind, a proposition that was also conceded in the oral submissions of the Crown at first instance.

57. Furthermore, it was submitted that the characterisation of the offence as mid-range also derived from a factual error made by the sentencing judge with respect to the time of the offending, specifically that the offending occurred shortly after 7 pm. Counsel argued that a reasonable inference is that the offence in fact occurred sometime after 9 pm. Since the ambulance was called to treat the victim at 10:38 pm, the relevance of this alleged factual error was said to be that the subsequent inference drawn by his Honour was that the victim remained in her bedroom untreated for some hours; that was wrong.

56. In oral submissions, the lack of intention to recklessly wound, the injury sustained being at the lower end of the spectrum comprehended by such an offence, and the alleged temporal error were emphasised. It was also added that the incident was not a situation where there was one person one-sidedly berating the victim, but rather the two applicants and the victim were all screaming at each other.

57. Turning to my determination of this ground, I respectfully think that it may be the case that the sentencing judge overlooked the fact that, although the agreed facts document does speak of the victim and Mr Argus being at home at 7 pm, it was at 8 or 9 pm that she observed the vehicle of Mr Patrick in the driveway. In other words, it may be that the sentencing judge made a slip as to how long it was that the victim was lying on the floor, in her own home, bleeding profusely, in great pain, having been attacked by two men, with a weapon: 1 ½ hours, or somewhat more. In the scheme of all of those things, I regard that error as being of no moment.

58. And stepping back and reflecting upon the objective aspects of this offence as a whole that I have just summarised, I respectfully think that the assessment of this offence as being in the mid-range of objective seriousness of all reckless woundings in company was well open.

59. I would not uphold ground 1 of Mr Patrick.

Ground 2: His Honour erred in finding the offence of 'reckless wounding in company' was aggravated pursuant to s 21A(n) of the Crimes Sentencing Procedure Act [in] that it was part of a planned or organised criminal activity.

62. As for this ground, counsel for Mr Patrick submitted that the sentencing judge erred in finding that there had been planning to the level necessary to invoke the aggravating factor spoken of in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

63. He relied upon the submission that the bicycle chain was picked up in the hall of the premises in which the offending occurred, as opposed to it being in the possession of the applicants before they entered the premises.

64. In oral submissions, the previous two points were emphasised. Defence counsel also submitted that the facts do not indicate the precise time it took for the applicants to walk up the stairs. He noted that even if that did demonstrate “some degree of planning”, it did not satisfy the statutory threshold for it to become an aggravating factor.

65. Responding to those submissions, it is true that the mental element of this offence of recklessness was foresight of significant possibility. In other words, it is true that when the wound was inflicted, it was intended by neither man. In the same vein, I accept the proposition that, focusing only on the specific nature of the injury inflicted, one could not characterise that particular aspect of the matter as having been planned.

66. In my opinion, however, it was well open to the sentencing judge to characterise this offence generally as featuring “some degree of planning”, and certainly not as being “a spontaneous or opportunistic offence”: the text messages, the arrival of the applicants together, the shared intention to evict, the climbing of the stairs by both men, and, most significantly, the obtaining of the weapon before they arrived on the first floor of the home are the factors that lead me to that conclusion. And I also think that the sentencing judge was entitled to regard that degree of planning as a matter in aggravation.

67. In my opinion, the characterisation of the offence, considered in a common sense way, as having featured some planning was well open, and able to operate in aggravation.

68. I would not uphold ground 2 of Mr Patrick.

Ground 3: The aggregate sentence is manifestly excessive in being disproportionate to the totality of the applicant's criminality.

69. Counsel for Mr Patrick argued that the aggregate sentence of 5 years 6 months with a non-parole period of 4 years 1 month was manifestly excessive. Whilst conceding that there cannot be an appeal against an indicative sentence, counsel nonetheless drew attention to the indicative sentence for the offence of possessing an unauthorised firearm. He noted that the air rifle was not in working order, and that there was no evidence that it was possessed to facilitate any of the other substantive offences.

70. As I have said, the sentencing judge indicated for that offence a starting point of imprisonment for 18 months, prior to applying the 20% discount. Counsel asserted that his Honour should have reached the conclusion that a custodial sentence was not warranted for that offence.

71. Additionally, there was a table provided in the written submissions of counsel for Mr Patrick setting out the roles and sentences of other persons involved in the joint criminal enterprise to supply drugs in which his client had involved himself. In oral submissions, it was explained that that was not relied upon for a true parity argument. Instead, it was simply to provide an overview of where the offending of Mr Patrick fitted in with respect to other offenders in the drug business, and to emphasise the markedly lower objective seriousness of his offending in comparison to others.

72. Counsel also concisely listed a number of subjective matters that were put before the sentencing judge, and should not have lost their force in the overall consideration of the aggregate sentence: Mr Patrick had a very limited criminal history with no previous contact with Community Corrections; finished schooling in Year 9; commenced using cannabis at the age of 17 and gradually increased usage throughout adulthood; suffered a knee injury at his workplace in early 2013; was introduced to the drug ice in early 2014 and used it as an effective form of pain management; the offending was committed in the context of substance use disorder and antisocial peer association; there were no disciplinary offences during his two years in remand; and his plans were to move to Queensland upon release to be closer to his family and re-establish employment.

73. At the hearing before this Court, counsel emphasised that the firearm was non-functioning. He acknowledged that, irrespective of whether the item could be fired or not, the Crown had drawn attention to the principal need for public safety when dealing with firearms offences. On the other hand, he noted that the cases relied on by the Crown for that proposition involved offences that carry maximum penalties of 20 years’ imprisonment. Counsel also submitted that the sentence was manifestly excessive when considering the subjective circumstances of Mr Patrick and his lack of criminal history, especially in light of the other participants in this joint criminal enterprise of supplying a prohibited drug.

74. Reflecting upon this final ground of Mr Patrick, and focusing largely but not completely on the aggregate sentence, he was to be dealt with for a number of separate acts of criminality that led to three substantive offences. All of them were serious, albeit to different degrees. He involved himself in the supply of a drug that is notoriously damaging to individuals and Australian society generally. The quantity and the purity ultimately supplied were not insignificant. He also possessed an item without authorisation that can inflict injury and instil fear of death. Finally, there is no need for me to recount yet again the very adverse features of the wounding.

75. In my opinion, bearing in mind in particular the applicable maximum penalties (not least with regard to the substantive firearm offence), none of the indicative sentences, nor their starting points, nor the degree of “notional cumulation” (to the extent that that is an available or useful analysis), nor the aggregate sentence, demonstrates error. As for the latter, it could perhaps be characterised as stern. It cannot, however, be characterised as beyond the range of sentences available to his Honour.

Proposed orders with regard to Mr Patrick

76. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

Grounds of appeal of Mr Whitney

77. Mr Whitney notified and pressed the following grounds of appeal.

Ground 1: The sentencing judge erred in finding that the offence was planned.

Ground 2: The sentencing judge erred in his application of the parity principle.

Ground 3: The sentencing judge erred in his assessment of the objective seriousness of the offence.

Ground 4: The sentencing judge erred in his calculation of the commencement date of sentence.

Ground 5: The sentence is manifestly excessive.

Ground 1: The sentencing judge erred in finding that the offence was planned.

78. A number of factors were relied upon in the written submissions to demonstrate that the offence was not planned to the degree that the sentencing judge held it to be. While it was conceded that there was some text messaging and that the applicants went to the victim’s house in anticipation that something inappropriate or untoward may occur to her, the applicants did not attend the location with weapons available on hand. Rather, the chain was collected once inside the premises and there was no other evidence of the prior planning of the infliction of any injury.

79. As a result, counsel argued that planning could only be seen as rudimentary and for the sole purpose of evicting the victim.

80. At the hearing before this Court, counsel for Mr Whitney was largely content to rely upon his written submissions and the oral submissions for Mr Patrick that I have summarised earlier in this judgment. He did make the further concise point that, although there may have been some “confrontation or… an intimidation” in the contemplation of the applicants before the offence was committed, one could not characterise the reckless wounding in company as having featured “some planning”, as the sentencing judge had done.

81. For the reasons given above with regard to Mr Patrick, I do not accept that proposition. To repeat for convenience: in my opinion, the text messages recounted in the agreed facts amply demonstrate that force was to be used, if necessary, to evict the victim from her own home. And leaving the messages aside for the sake of argument only, in any event, by the time the two men climbed the stairs, one of them armed with the padlock and chain, and the other present to encourage or assist, the inference is irresistible that the infliction of physical harm upon the victim was a distinct possibility. The fact that they may not have intended specifically to wound her is of no moment; their foresight of the possibility of the infliction of that particular kind of injury is encapsulated in the mental element of recklessness. The characterisation of the offence as aggravated by some planning was available to the sentencing judge.

82. I would not uphold the first ground of Mr Whitney.

Ground 2: The sentencing judge erred in his application of the parity principle.

83. With respect to ground 2, counsel for Mr Whitney largely relied upon his written submissions, which may be summarised as follows. In spite of the way the ground is expressed, counsel made clear that his real criticism was focused on the finding of the sentencing judge that the applicants shared equal criminal and moral culpability. He noted that the culpability of Mr Whitney is concerned with his conduct and his subjective circumstances, in order to determine the appropriate punishment. The limited physical involvement of Mr Whitney in comparison to Mr Patrick should have justified a significant disparity in assessment of that factor, leading to a different sentence.

84. In oral submissions, counsel emphasised that an objective analysis of the facts should lead to an assessment of lower moral culpability on the part of Mr Whitney, because there was an absence of physical involvement by him in the attack upon the victim, apart from merely yelling.

85. As for the first part of the assessment of the sentencing judge – that the criminal culpability of each applicant was equal – it is unimpeachable. That is because that is the precise effect of s 345 of the Crimes Act1900 (NSW).

86. And as for the second finding that their moral culpability was equal, it is true, speaking generally, that sometimes a principal in the second degree (or a principal in the first degree who is present pursuant to a joint criminal enterprise but who commits no physical act) may be less culpable than the actor. And that is perhaps more often the case when inculpation of the non-actor in an offence is based upon extended joint criminal enterprise, because that doctrine focuses on foresight of possibilities, as opposed to intention.

87. But those very general reflections of mine are certainly not inflexible. As counsel for Mr Whitney accepted in this Court, everything depends upon the circumstances of the actual case. It is not difficult to envisage, for example, a mature and sophisticated accessory before the fact who encourages a vulnerable, disturbed young person to commit an offence of violence for a trifling fee, to the significant financial benefit of the accessory, as being much more morally culpable than the manipulated actor.

88. Here, two men travel to the home in the evening. They had shared in the preparatory text messages. They shared in the desire to cause the victim to stop interfering in the illegal business of Mr Argus. They each climbed the stairs. Mr Whitney was part of the commotion. By his plea, he accepted that he was at least present encouraging or ready to assist Mr Patrick. One might readily infer that Mr Patrick was not prepared to be the violent actor without the presence of Mr Whitney. They fled together when the victim produced a knife in self-defence. Significantly, Mr Whitney did not point to some compelling subjective feature – such as mitigatory duress, or a mitigating psychological or psychiatric condition, or provocation – that differentiated him from Mr Patrick. Indeed, the differentiation in the moral culpability could be said to have been that Mr Whitney had demonstrated himself to be a man of violence in the past.

89. In my opinion, it was well open to the sentencing judge to find equivalence in both legal and moral culpability between the two applicants.

90. I would dismiss ground 2 of Mr Whitney.

Ground 3: The sentencing judge erred in his assessment of the objective seriousness of the offence.

91. In written submissions, counsel for Mr Whitney argued that the finding of the sentencing judge that the offence fell into the mid-range of offending was not supported by the evidence. Counsel relied upon the propositions that the weapon itself was not an inherently dangerous weapon, and that the injury did not appear life threatening nor did it require surgery or significant hospitalisation.

92. Further, it was suggested that there was no evidence to support the contention that the applicants displayed a callous disregard for the victim’s wellbeing after the infliction of the injury.

93. Counsel for Mr Whitney was content to rely on his written submissions and the previously made oral submissions of counsel for Mr Patrick with regard to this ground, except for the following. Although the VIS spoke of the significant psychological damage occasioned by the offending, the sentencing judge expressed some concern with respect to whether the psychological harm could solely be attributed to the one incident.

94. My determination of this ground is as follows. I have dealt above with the contention that the question of whether or not the victim lay in her bedroom – bleeding copiously from a significant head wound and undoubtedly traumatised after having been brutalised in her own home – for an hour or two hours or three hours is significant. In my respectful opinion, in all the circumstances it is neither here nor there.

95. Here, even adopting the very generous approach to the VIS of the sentencing judge of giving only limited weight to the psychological harm occasioned, by way of an unspontaneous bashing committed with a frightening weapon, a woman was badly injured to the head by two men in her own home after nightfall, partly in order to protect a business of supplying prohibited drugs. In my opinion, the finding that this offence was in the mid-range of seriousness was well open to the sentencing judge.

Ground 4: The sentencing judge erred in his calculation of the commencement date of sentence.

96. As for this ground, defence counsel submitted that the date upon which Mr Whitney’s sentence should have commenced is 1 October 2018 instead of 31 October 2018, in order to accommodate the applicant’s prior custodial period of 2 months and 11 days.

97. This error in calculation was conceded by the Crown.

98. Both parties submitted that this is not the kind of error that calls for full-scale consideration of re-sentence. I agree with that proposition: it is arithmetical, and severable.

99. In my opinion, ground 4 should be upheld, and the commencement date of the sentence of Mr Whitney should be changed from 31 October 2018 to 1 October 2018, with concomitant adjustment of expiry dates.

Ground 5: The sentence is manifestly excessive.

100. In support of the final ground, counsel for Mr Whitney submitted that the starting point of 4 years and 6 months was unjust and led to a head sentence and non-parole period that were similarly unjust.

101. Counsel explained that this was because the wound was inflicted by a single blow, it was an unplanned and opportunistic offence, the injury sustained by the victim was towards the lower end of seriousness, and the sentencing judge did not explicitly refer to the positive aspects detailed in the two letters of support.

102. This ground can be dealt with concisely. In order to succeed, it must be demonstrated by Mr Whitney not that the sentence was stern, but rather that it was patently beyond the bounds of the sentencing discretion reposed in the sentencing judge.

103. To recap: the maximum penalty is 10 years. The offence carries a standard non-parole period of 4 years. The offence was by no means opportunistic or spontaneous. The wound was significant, and to a vital part of the body. The weapon had its inherently brutal aspects when used as it was. Certainly, the infliction of the blow was terrifying and very painful. The victim was attacked in her own home. The motivation was partly the protection of other serious criminality. Mr Whitney was not found to be remorseful for what he had done. Whilst it is true that there was evidence that he has been a person with some admirable features, regrettably he was no stranger to violence when he ascended the stairs that evening.

104. In my opinion, the sentence imposed was well within the discretion of the sentencing judge.

105. I would not uphold ground 5 of Mr Whitney.

Proposed orders with regard to Mr Whitney

106. Solely in order to correct the commencement date spoken of in ground 4, I propose the following orders:

1. Grant leave to appeal.

2. Uphold the appeal.

3. Quash the sentence imposed by Judge Colefax SC on 30 January 2019.

4. In substitution, Ainsley Whitney is sentenced to a non-parole period of three years to commence on 1 October 2018 and expire on 30 September 2021, to be followed by a parole period of one year, to expire on 30 September 2022.

5. The first date upon which it appears that Mr Whitney is eligible for possible release to parole is 30 September 2021.

Patrick v R Diagram (2.69 KB, pdf)

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Decision last updated: 15 April 2020