R v White - [2000] NSWSC 555

CITATION: R v White [2000] NSWSC 555

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC L15/97

HEARING DATE(S): 5 May 2000

JUDGMENT DATE: 22 June 2000

PARTIES :

David Timothy White (Applicant)

JUDGMENT OF: Studdert J

COUNSEL : M. Grogan (Crown)
M. Austin (Applicant)

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

LEGISLATION CITED: Crimes Act
Sentencing ACt
Crimes Legislation Amendment (Sentencing) Act
Crimes (Sentencing Procedure) Act

CASES CITED: R v Fernando (1992) 76 A Crim R 58
R v Fuller (unreported, NSWCCA, 7 November 1994)

DECISION: See para 38

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J
Thursday 22 June 2000

L15/97 APPLICATION OF DAVID WHITE
JUDGMENT
1 HIS HONOUR: On 7 March 1990 the jury found the applicant, David Timothy White, guilty of the murder of Jean Smithson. The applicant was also found guilty of an offence under s 61D(1) of the Crimes Act, that is of having sexual intercourse without consent knowing that consent was lacking. On 9 July 1990 I sentenced the applicant to penal servitude for life for the crime of murder and I imposed a concurrent sentence of a fixed term of six years in respect of the sexual assault. Both sentences were backdated to commence on 9 January 1990.
2 The applicant made application in writing on 12 September 1997 for the determination pursuant to s 13A of the Sentencing Act of a minimum term and an additional term of the sentence of penal servitude for life that I had earlier imposed. When the applicant lodged the application, s 13A(3) provided that a person was not eligible to make an application of this nature before he had served “at least eight years of the sentence concerned…” If the letter of application is to be regarded as the making of the application, then the applicant’s application was premature. There was, however, a later application signed by the applicant bearing date 9 September 1999. This application bears a receipt stamp of this court that evidences that the document was received in the court on 17 September 1999. It seems to me that this is the application which should be treated as the application before the Court and it was properly lodged after the expiration of the first eight years of the applicant’s sentence. In any event no point has been taken that the making of the application was premature. In the circumstances, it is unnecessary to decide whether, for present purposes, the application is made when a letter of request is directed to the Supreme Court or when an application is heard by this Court.
3 The matter did not come before me for hearing of the application concerning the existing life sentence until 5 May 2000. On that date the issue arose as to whether the application was to be dealt with under s 13A of the Sentencing Act 1989, which, of course, was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999…

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 [2000] NSWSC 555
Case: [2000] NSWSC 555
Decision Date: 22 June 2000

CaseChat Overview and Summary

The case of R v White involves the applicant, David Timothy White, appealing against his sentence for the murder of Jean Smithson. The case was heard in the Supreme Court of New South Wales by Studdert J. The applicant had previously been convicted of murder and sentenced to life in prison. The current application is to determine a minimum term and an additional term of the sentence of penal servitude for life imposed by Studdert J.

The primary legal issue was whether the application should be governed by the Sentencing Act 1989 or the Crimes (Sentencing Procedure) Act 1999. The Court concluded that the application was to be considered under the 1999 Act. The Court then had to determine the appropriate specified term and non-parole period for the sentence.

In reaching its decision, the Court considered the gravity of the crime, the applicant's age at the time of the crime and his background, and the applicant's conduct in prison. The Court accepted the assessment of Ms Robilliard that the applicant had made progress in prison and improved his literacy skills. However, the Court also noted the applicant's continued denial of guilt and lack of contrition. The Court set a specified term of twenty-two years imprisonment with a non-parole period of sixteen years and six months, backdated to 9 January 1990.

The final orders were that David Timothy White be imprisoned for a term of twenty-two years, to expire on 8 January 2012, with a non-parole period of sixteen years and six months, to expire on 8 July 2006. The applicant would therefore become eligible for release on parole on 9 July 2006.

Orders