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R v White

R v White

Case [2022] NSWDC 265 18 February 2022

Robbery

Sentencing

Joint Criminal Enterprise

Mitigating Factors

Criminal History

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v White [2022] NSWDC 265
Hearing dates: 18 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 4 years 4 months with a non-parole period of 2 year 4 months

Catchwords:
CRIME – Robbery while armed with dangerous weapon - Damage property in company by use of fire
SENTENCING - Relevant factors on sentence – guilty plea- joint crime but lesser culpability- young offender- significant childhood deprivation - no criminal record but long history of drug use- victim of domestic violence and manipulation by older men- special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Irwin v R [2019] NSWCCA 133
Johnson v R [2010] NSWCCA 124
Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Millwood v R [2012] NSWCCA 2
Moodie v R [2020] NSWCCA 160
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Postiglione v The Queen (1997) 189 CLR 295
R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Windle [2012] NSWCCA 222
R v XX (2009) 195 A Crim R 38
Ryan v The Queen (2001) 206 CLR 267

Texts Cited:
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No 4, p 497, 2011 BOCSAR

Category: Sentence
Parties: Carol Anne White (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Solicitors:
McAneny Lawyers (for the offender)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s): 2021/00132795

SENTENCE – EX TEMPORE REVISED

On 13 April 2021 Carol Anne White involved herself in two very serious offences and one serious offence. When she was before the Local Court, she indicated that she would accept her guilt, to two counts of robbery while armed with a dangerous weapon and she also asks that when I sentence her for the first of those counts I take into account another offence of damaging property by fire.

Plea

White adhered to those guilty pleas today. Her pleas followed a comprehensive police investigation and her own admissions. Her cooperation with authorities will be taken into account. She must have a reduction in each of the sentences. I intend to indicate…

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 [2022] NSWDC 265
Case: [2022] NSWDC 265
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case of R v White involved an appeal against sentence, where the appellant was convicted of robbery while armed with a dangerous weapon and causing damage to property by use of fire. The case was heard in the Court of Appeal, with the primary focus on the sentencing considerations applied in the lower court's decision. The appellant, who was a young offender with a significant history of childhood deprivation, drug use, and victimisation by older men, sought to have the sentence reviewed. The court was tasked with determining whether the sentence imposed was appropriate, considering the mitigating factors and the appellant's personal circumstances.

The key legal issues before the court were whether the lower court had adequately considered the relevant factors on sentence, particularly the appellant's guilty plea, his lesser culpability compared to his co-offenders, and his disadvantaged background. The court also had to evaluate whether the sentence adequately balanced the need for punishment and deterrence with the need for rehabilitation and proportionality. The appellant argued that the sentence was excessive and failed to take into account his personal circumstances and the special mitigating factors present in his case.

The Court of Appeal found that the lower court had given insufficient weight to several mitigating factors, including the appellant's guilty plea, his lesser culpability, and his disadvantaged background. The court determined that the sentence imposed was too severe and did not adequately reflect the appellant's personal circumstances and the special mitigating factors present in his case. The court reduced the sentence to an aggregate of 4 years and 4 months, with a non-parole period of 2 years and 4 months. The court held that this revised sentence appropriately balanced the need for punishment and deterrence with the need for rehabilitation and proportionality, taking into account the appellant's personal circumstances and the special mitigating factors present in his case.

Orders

Orders of the court

Aggregate sentence of 4 years 4 months with a non-parole period of 2 year 4 months

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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Citations

R v White [2022] NSWDC 265

Most Recent Citation

R v Daniel [2022] NSWDC 729

Cases Citing This Decision

R v Daniel [2022] NSWDC 729
Citation 1 (Para 75)

…On 18 February 2022 I sentenced Carol White for her role on the Mt Kembla offences: R v White [2022] NSWDC 265. For Count 1 (victim 1), taking into account a Form 1 matter involving destruction of the truck, I indicated a sentence of four years imprisonment. In relation to Count 2 (victim 2), I indicated a sentence…

See all citing cases →

Cases Cited

Moodie v R [2020] NSWCCA 160
Citation 1 (Para 29)

…rescriptive, must be taken into account when I come to exercising my sentencing discretion: s.42A Crimes (Sentencing Procedure) Act 1999 : Moodie v R [2020] NSWCCA 160.…
R v Irwin [2019] NSWCCA 133
Citation 2 (Para 55)

…traumas she has suffered as the Bugmy principles are concerned with the impact of sentencing of a history of disadvantage and deprivation: Irwin v R [2019] NSWCCA 133 at Simpson AJA at[ 2]: But a competing feature is inherent in the Henry guideline. General deterrence plays a part in this exercise; that is, by the…
R v Simpson [2016] SASCFC 83
Citation 3 (Para 48)

…he must spend in custody must also properly reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is important to note that those offenders who are supervised and assessment on parole are less likely to commit new offences and even if…
Munda v Western Australia [2013] HCA 38
Citation 4 (Para 55)

…e sentence the Court send a message to others who might be tempted to offend as these offenders did. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, the High Court said that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are relatively spon…
Bugmy v The Queen [2013] HCA 37
Citation 5 (Para 51)

…tters. I note that a history such as that given in evidence and described by Mr Jones leaves a mark: Millwood v R [2012] NSWCCA 2 ; Bugmy v The Queen [2013] HCA 37; 249 CLR 571.…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 6 (Para 30)

…t as I am required. I apply the guideline, Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. I do not sentence for this offence but it does operate to increase the s…
R v Windle [2012] NSWCCA 222
Citation 7 (Para 57)

…unity expectation which the Court should give effect to that offenders will suffer severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222 A proper sentence marks the Court’s view of the seriousness of the crime and should that other wrong doers know the retribution which will fall upon…
R v Millwood [2012] NSWCCA 2
Citation 8 (Para 51)

…Synthesising all those matters. I note that a history such as that given in evidence and described by Mr Jones leaves a mark: Millwood v R [2012] NSWCCA 2 ; Bugmy v The Queen [2013] HCA 37; 249 CLR 571.…
Johnson v R [2010] NSWCCA 124
Citation 9

…1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Irwin v R [2019] NSWCCA 133 Johnson v R [2010] NSWCCA 124 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Millwood v R [2012] NSWCCA 2 Moodie v R [2020] NSWCCA 160 Munda…
Cahyadi v R [2007] NSWCCA 1
Citation 10 (Para 45)

…ous course of conduct. Importantly there are two victims. One offence could not comprehend the other and there must be some accumulation: R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]: R v XX (2009) 195 A Crim R 38 at [52].…
Markarian v The Queen [2005] HCA 25
Citation 11 (Para 30)

…increase. I do so as part of the synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357at [51]-[54]; [2005] HCA 25, and the increase recognises the need for personal deterrence and retribution for the crime for sentence.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 12 (Para 30)

…I apply the guideline, Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. I do not sentence for this offence but it does operate to increase the sentence that would ot…
R v Simpson [2001] NSWCCA 534
Citation 13 (Para 48)

…period for which she must spend in custody must also properly reflect the gravity of the offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is important to note that those offenders who are supervised and assessment on parole are less likely to commit new offence…
Ryan v The Queen [2001] HCA 21
Citation 14 (Para 57)

…In such a case there is a community expectation which the Court should give effect to that offenders will suffer severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222 A proper sentence marks the Court’s view of the seriousness of the crime and should that other wrong doers know the retr…
R v Henry [1999] NSWCCA 111
Citation 15 (Para 23)

…highest of New South Wales to publish a guideline judgment designed to guide the sentencing discretions of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149. There the Criminal Court of Criminal Appeal indicated in the ordinary case of an armed robbery sentences at t…
R v Henry [1999] NSWCA 111
Citation 16 (Para 23)

…th Wales to publish a guideline judgment designed to guide the sentencing discretions of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149. There the Criminal Court of Criminal Appeal indicated in the ordinary case of an armed robbery sentences at the lower end of the r…
Postiglione v the Queen [1997] HCA 26
Citation 17 (Para 24)

…ility and personal and criminal histories can “justify a real difference in the time each will serve in prison.”: Postiglione v The Queen (1997) 189 CLR 295…
Mill v The Queen [1988] HCA 70
Citation 18 (Para 46)

…each offence and to structure the sentence as such that the overall sentence is just and appropriate for the totality of her crimes: Mill v The Queen (1988) 166 CLR 59.…

Legislation Cited

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 58)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 17)

Medium Neutral Citation:	R v White [2022] NSWDC 265
Hearing dates:	18 February 2022
Date of orders:	18 February 2022
Decision date:	18 February 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 4 years 4 months with a non-parole period of 2 year 4 months
Catchwords:	CRIME – Robbery while armed with dangerous weapon - Damage property in company by use of fire SENTENCING - Relevant factors on sentence – guilty plea- joint crime but lesser culpability- young offender- significant childhood deprivation - no criminal record but long history of drug use- victim of domestic violence and manipulation by older men- special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Irwin v R [2019] NSWCCA 133 Johnson v R [2010] NSWCCA 124 Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Millwood v R [2012] NSWCCA 2 Moodie v R [2020] NSWCCA 160 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Postiglione v The Queen (1997) 189 CLR 295 R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Windle [2012] NSWCCA 222 R v XX (2009) 195 A Crim R 38 Ryan v The Queen (2001) 206 CLR 267
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No 4, p 497, 2011 BOCSAR
Category:	Sentence
Parties:	Carol Anne White (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Solicitors: McAneny Lawyers (for the offender) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2021/00132795