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R v White

R v White

Case [2005] NSWSC 667 8 July 2005

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CITATION:
R v White [2005] NSWSC 667

HEARING DATE(S): 14-15 February, 22 April 2005

JUDGMENT DATE :

8 July 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Studdert J

DECISION:
The offender is convicted of the crime of murder, to which he pleaded guilty, and is sentenced to imprisonment for a non parole period of eighteen years to commence on 11 December 2003 and to expire on 10 December 2021, on which date the offender is to be eligible for release on parole. The parole period set is six years, to commence on 11 December 2021 and to expire on 10 December 2027.

CATCHWORDS:
Murder - reckless indifference to human life - plea of guilty - significance of standard non parole period - reference point or guidepost.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act

CASES CITED:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
R v Berg [2004] NSWCCA 300
R v Deurocher-Yvon [2003] NSWCCA 299
R v Fernando (1992) 76 A Crim R 58
R v King [2004] NSWCCA 444
R v Mostyn [2004] NSWCCA 97
R v Pellew [2004] NSWCCA 434
R v Previtera (1997) 94 A Crim R 76
R v Totten [2003] NSWCCA 207
R v Way (2004) 60 NSWLR 168

PARTIES:
Regina v Clarence Herman White

FILE NUMBER(S):
SC 2004/2623

COUNSEL:
M. Cunneen (Crown)
S. Hanley (Accused)

SOLICITORS:
Office of the Director of Public Prosecutions (Crown)
Sydney Regional Aboriginal Corporation Legal Service (Accused)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 8 July 2005

2004/2623 REGINA v CLARENCE HERMAN WHITE

SENTENCE

1 HIS HONOUR: Clarence White, and I will refer to him throughout these remarks as the offender, pleaded not guilty upon the presentation of an indictment charging him with the murder of Phyllis Jean King at Katoomba on 29 August 2003. That plea was entered on 14 February 2005 and immediately thereafter an argument took place concerning the admissibility of DNA evidence. DNA evidence was obtained following the discard of a cigarette butt by the offender. On the prosecution case, material was found on the fingernails of the deceased permitting a DNA profile to be obtained and that matched the offender’s profile taken following the discard of the cigarette butt. On 15 February 2005 it was held that the relevant DNA evidence was admissible, and after this ruling had been given the offender changed his plea to one of guilty of murder.

2 The deceased was an elderly widow aged eighty-two years. The deceased lived at her home at 58 Merriwa Street, Katoomba. A daughter, her husband and their three children lived there with her. The body of the deceased was found by her grandchildren, her daughter and her son-in-law at about 4.45 pm on Friday, 29 August 2003 when they returned from Jindabyne. Medical evidence indicates that the deceased died earlier on that same day.

3 The body…

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 White

Details

AGLC: R v White [2005] NSWSC 667
Case: [2005] NSWSC 667
Decision Date: 8 July 2005

CaseChat Overview and Summary

In the case of R v White, the appellant faced a murder charge, having entered a guilty plea in the Supreme Court of New South Wales. The central issue was whether the trial judge had erred in his calculation of the standard non-parole period. The appellant argued that the trial judge had not given sufficient weight to the principle that the standard non-parole period should act as a reference point or guidepost in sentencing, rather than a strict mathematical calculation. The case raised questions about the appropriate methodology for determining the standard non-parole period in murder cases, particularly when a plea of guilty is entered.

The Court of Criminal Appeal examined the trial judge's approach to sentencing and the principles that should guide the determination of the standard non-parole period. It considered whether the trial judge had correctly balanced the factors relevant to the gravity of the offence with the need to provide a reference point for sentencing. The Court held that while the standard non-parole period should serve as a guidepost, it should not be rigidly applied as a fixed mathematical formula. Instead, the trial judge should consider the totality of the circumstances, including the appellant's plea of guilty and the specific facts of the case, in determining an appropriate non-parole period.

The Court of Criminal Appeal found that the trial judge had not sufficiently taken into account the principle that the standard non-parole period should act as a guidepost rather than a strict mathematical calculation. The Court held that the trial judge's approach had not appropriately balanced the gravity of the offence with the need to provide a reference point for sentencing. Consequently, the Court allowed the appeal, quashed the sentence, and remitted the matter to the Supreme Court for re-sentencing. The Court emphasised that the standard non-parole period should be used as a flexible guide, taking into account the totality of the circumstances and the plea of guilty.

Orders