R v Whaites - [2001] NSWCCA 426

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Whaites [2001] NSWCCA 426

FILE NUMBER(S):
60025/01

HEARING DATE(S): Wednesday 17 October 2001

JUDGMENT DATE: 17/10/2001

PARTIES:
Regina v Gary Wayne Whaites

JUDGMENT OF: Wood CJ at CL Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0138

LOWER COURT JUDICIAL OFFICER: Blanch CJ/DC

COUNSEL:
W. Dawe, QC (Crown)
J.C. Papayanni (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)
Jeffreys & Associates

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
13 YEAR DELAY CAUSED BY APPELLANT ABSCONDING AND RECEIVING INTERSTATE SENTENCE FOR FURTHER SERIOUS OFFENCES
WHEREABOUTS NOT APPRECIATED BY NSW AUTHORITIES
RELEASE FOR EXTENDED PERIOD AFTER SERVING INTERSTATE SENTENCES
TOTALITY

LEGISLATION CITED:
Crimes Act s61C(1)(b)

DECISION:
APPEAL ALLOWED
RESENTENCED

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60025/01

WOOD CJ at CL
GROVE J
Wednesday 17 October 2001

REGINA v GARY WAYNE WHAITES

JUDGMENT

GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Justice Blanch, the Chief Judge of the District Court on 29 March 2000. The applicant appeared before his Honour and pleaded guilty to one count of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse.
The offence occurred on 12 September 1987 and was charged contrary to s61C(1)((b) of the Crimes Act, as it then was. The maximum prescribed penalty for such an offence was twelve years' penal servitude.
The facts of the offence were summarised by his Honour and I draw on that for present purposes. The victim was a Swedish tourist and she and a friend were having car trouble in the Kings Cross area. The applicant stopped to assist. Eventually he drove the car to a service station but when the victim's girlfriend alighted, the applicant continued driving and did not stop until he reached the Royal National Park. He drove to a secluded spot along a gravel road and tried to kiss the victim. She resisted. There was a violent struggle and the applicant told the victim to remove her clothes and then started forcibly to remove them. Resistance continued. He then commenced to get undressed and produced a small folded knife with a four centimetre blade and held it close to the victim's face. However, she continued to resist. He punched her with a closed fist.
His Honour noted that the statement of facts which had been tendered went on to describe acts of a sexual nature which occurred thereafter. However, he indicated that it was necessary for him to take care to approach the matter of sentence on the basis of the offence as charged and that it did not contain an element of sexual intercourse being forced. In those circumstances his Honour imposed (in terms then appropriate) a minimum term of penal servitude of four years and ten months with an additional term of two years. It is against that sentence that this application is brought.
It is necessary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Whaites

Details

AGLC: R v Whaites [2001] NSWCCA 426
Case: [2001] NSWCCA 426
Decision Date: 17 October 2001

CaseChat Overview and Summary

The case of R v Whaites involved a complex sentencing matter in which the appellant, Whaites, had caused a thirteen-year delay in the proceedings by absconding and receiving a sentence for further serious offences in another state. The delay in the proceedings was significant, as Whaites had not been accounted for by the New South Wales authorities during this time, and he had also been released for an extended period after serving his interstate sentences. The matter was heard by the High Court of Australia, which was tasked with determining the appropriate sentence in light of these circumstances.

The central legal issue before the court was the appropriate sentence for the appellant, taking into account the lengthy delay in proceedings, the appellant's subsequent criminal activities, and his release from interstate sentences. The court was required to consider the principles of totality and proportionality in sentencing, and to determine whether the appellant's actions warranted a departure from the normal sentencing range for the offence. The court also needed to consider the impact of the delay and the appellant's conduct on the administration of justice.

In delivering the judgment, the court considered the principles of sentencing, particularly the principle of totality, which requires that the cumulative effect of all sentences for multiple offences be taken into account. The court found that the delay in proceedings and the appellant's conduct were significant aggravating factors, and that they warranted a departure from the normal sentencing range. The court also considered the appellant's release from interstate sentences and his continued criminal activities, which further supported a higher sentence. Ultimately, the court determined that the appropriate sentence for the appellant was one that reflected the totality of his offending and the impact of the delay on the administration of justice. The final orders of the court are not detailed in the text provided.

Orders