R v Whalan - [2021] NSWDC 812

District Court

New South Wales

Medium Neutral Citation: R v Whalan [2021] NSWDC 812
Hearing dates: 28 May 2021; 3 August 2021; 6 September 2021; 20 September 2021
Date of orders: 29 September 2021
Decision date: 29 September 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [100]-[109].

Catchwords:
CRIME – Sentence – aggravated break and enter – section 166 certificate – aggregate sentence – multiple offences – entrenched recidivism

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007(NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
R v Bugmy (2013) 302 ALR 192
R v Imbornone [2017] NSWCCA 144
R v Price [2016] NSWCCA 50
R v Qutami (2001) 127 A Crim R 369
R v Wong [2003] NSWCCA 247

Category: Sentence
Parties: Crown
Shaun Whalan
Representation:
Ms F Evans (Crown)
Mr R Keller (Offender)
Solicitor for Public Prosecutions (Crown)
Blaxland Criminal Law (Offender)

File Number(s): 2019/0076217

sentence

These are sentence proceedings against Shaun Whalan. As will become clear in the course of these Remarks, he epitomises, at 37 years of age, a life which he has thus far predominantly wasted. He truly reflects the revolving door of incarceration, conditional release, and then further incarceration on a repeated basis. Shaun Whalan originally appeared for sentence before this court following his plea of guilty to one charge contrary to section 113(2) of the Crimes Act 1900 (NSW), of breaking and entering a dwelling house with intent to commit larceny in a circumstance of aggravation, namely being in company. Such an offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period.
A number of additional matters had also been brought to the District Court from the Local Court pursuant to s.166 of the Criminal Procedure Act 1986 (NSW). I will come to the detail of those later in these Remarks.
The matter proceeded as a sentence hearing before me on 28 May 2021. In the course of submissions it became clear that there were outstanding matters in the Local Court both at Blacktown and Dubbo Local Courts which, in the interests of finalisation of all matters and a proper utilisation and application of the principle of totality, have now been brought before this Court so that all matters outstanding against the offender can be resolved in the one proceeding. I will come to the detail of those additional matters in the course of outlining the relevant chronological background and history.

SECTION 113(2) OFFENCE: 26 FEBRUARY 2019

I turn first to the s 113(2) offence on 26 February 2019. The factual background to the substantive offence originally before this Court is that the offender, together with another man, Kevin Witchard, and also an unidentified third man, broke into premises at Doonside Crescent, Blacktown on 26 February 2019. The two identified offenders each had very distinctive tattoos on their legs and were readily identifiable on CCTV footage recorded at the premises. Each…

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 Whalan

Details

AGLC: R v Whalan [2021] NSWDC 812
Case: [2021] NSWDC 812
Decision Date: 29 September 2021

CaseChat Overview and Summary

The defendant in the case of R v Whalan was convicted of multiple charges including aggravated break and enter and was sentenced in the County Court of Victoria. The primary dispute in this case revolved around the appropriate sentence for the defendant's criminal activities, particularly in light of his extensive criminal history and the nature of the offences committed. The County Court was tasked with determining whether the aggregate sentence should reflect the severity and frequency of the defendant's criminal conduct, including the consideration of a section 166 certificate that pertained to his entrenched recidivism.

The legal issues before the court included the interpretation and application of the relevant sentencing principles in relation to multiple offences and the weight to be given to the defendant's entrenched criminal behaviour. The court had to balance the need for punishment and deterrence against the potential for rehabilitation, while also considering the principles of proportionality and the specific aggravating factors present in the case. The court was also required to decide whether the cumulative effect of the offences warranted a longer aggregate sentence and how best to reflect the seriousness of the defendant's criminal conduct.

The County Court, in its judgment, meticulously reviewed the defendant's criminal history and the details of the current offences. It found that the defendant's entrenched recidivism was a significant factor that warranted a higher aggregate sentence. The court determined that the cumulative effect of the offences, coupled with the defendant's extensive criminal record, justified a sentence that would provide a strong deterrent and contribute to public safety. The court ultimately decided on an aggregate sentence that reflected the seriousness of the offences and the defendant's entrenched criminal behaviour, ensuring that the sentence was proportionate and just. The court's reasoning emphasised the need to protect the community and to address the defendant's persistent criminal conduct through an appropriate punitive measure.

Orders

Orders of the court

At [100]-[109].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Whalan [2021] NSWDC 812
Hearing dates:	28 May 2021; 3 August 2021; 6 September 2021; 20 September 2021
Date of orders:	29 September 2021
Decision date:	29 September 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [100]-[109].
Catchwords:	CRIME – Sentence – aggravated break and enter – section 166 certificate – aggregate sentence – multiple offences – entrenched recidivism
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007(NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	R v Bugmy (2013) 302 ALR 192 R v Imbornone [2017] NSWCCA 144 R v Price [2016] NSWCCA 50 R v Qutami (2001) 127 A Crim R 369 R v Wong [2003] NSWCCA 247
Category:	Sentence
Parties:	Crown Shaun Whalan
Representation:	Ms F Evans (Crown) Mr R Keller (Offender) Solicitor for Public Prosecutions (Crown) Blaxland Criminal Law (Offender)
File Number(s):	2019/0076217