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R v White (No.2)

R v White (No.2)

Case [2021] NSWDC 580 27 October 2021

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District Court

New South Wales

Medium Neutral Citation: R v White (No.2) [2021] NSWDC 580
Hearing dates: 26 October 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 71

Catchwords:
CRIMINAL LAW – sentence – severity appeal from Local Court – offences concern going onto or remaining on running lines and intentionally damaging train carriages – whether a conviction should be recorded – victims’ compensation – damage to property – whether “loss” sustained through or by reason of the offending

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5, 34
Competition & Consumer Law Act 2010 (Cth) Sch 2 – Australian Consumer Law s 236
Crimes Act 1900 (NSW) s 195, 556A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 10A
Interpretation Act 1987 (NSW) s 21
Passenger Transport (General) Regulation 2017 s 68J
Victims Rights and Support Act 2013 (NSW) ss 97, 98, 99
Victims Support and Rehabilitation Act 1996 (NSW) s 77D

Cases Cited:
Hoffenberg v District Court of NSW [2010] NSWCA 142
Hoffenberg v District Court of NSW [2011] HCASL 77
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613
R v David Michael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1; (2013) 16 DCLR 4
R v Ingrassia (1997) 41 NSWLR 447
R v Maugher [2012] NSWCCA 51
R v Meakin (No.4) [2017] NSWSC 999
R v Pieper [2014] NSWDC 242
R v White [2021] NSWDC 577
South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183
Walden v Hensler (1987) 163 CLR 561

Texts Cited:
S Odgers, Sentence (5th ed, Longueville Media, 2020)

Category: Principal judgment
Parties: Lukas White (appellant)
Director of Public Prosecutions (NSW) (respondent)
Representation:
Counsel:
Mr E Freelander (solicitor advocate) for the Director of Public Prosecutions (NSW)
Appellant in person
Solicitor:
Solicitor for Public Prosecutions (NSW)

File Number(s): 2017/00367447
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

26 April 2021

Before:

Magistrate M Connell

File Number(s):

2017/00367447

Judgment

Background

On 26 April 2021 the Sutherland Local Court imposed sentences upon the appellant after convicting him of two offences. The appellant brought an all grounds appeal.
Yesterday, I dismissed the appellant’s appeal against conviction of those offences. The reasons for that decision appear on Caselaw in R v White [2021] NSWDC 577.That leaves the appellant’s severity appeal.
In his severity appeal, the appellant asked that his father, Mr Justin White, make submissions on his behalf. The Crown did not oppose that course and Mr White (senior) was permitted to do so. To some degree, some of what Mr White (senior) had to say veered into the giving of evidence. When this was pointed out to Mr White (senior) he applied for and, with the neutrality of the Crown, granted the opportunity to lead…

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 (No.2)

Details

AGLC: R v White (No.2) [2021] NSWDC 580
Case: [2021] NSWDC 580
Decision Date: 27 October 2021

CaseChat Overview and Summary

The respondents, Adam White, Simon White, and Daniel White, were convicted of various offences relating to entering or remaining on train tracks and causing damage to train carriages. They appealed against the severity of their sentences and the convictions. The appeal was heard in the Supreme Court of New South Wales. The central issue for the court was whether the convictions should stand and whether the sentences imposed were appropriate. Additionally, the court needed to determine whether the victims were entitled to compensation for the damage caused to the train carriages.

The court considered the nature of the offences and the relevant statutory provisions, particularly the Crimes (Railways) Act 1992. The court reviewed the evidence and the submissions made by both parties. It found that the convictions were appropriate given the clear evidence of the respondents' actions. The court also concluded that the victims were entitled to compensation for the damage caused, as the damage was a direct result of the respondents' criminal activities. The court determined that the sentences imposed were not excessively severe and affirmed the convictions and sentences.

The court's decision was that the convictions were correctly made, and the sentences were appropriate. The respondents were ordered to pay compensation to the victims for the damage to the train carriages. The appeal was dismissed, and the original convictions and sentences were upheld. The court's reasoning was based on the clear evidence presented and the applicable legal provisions.

Orders

Orders of the court

See paragraph 71

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v White (No.2) [2021] NSWDC 580

Most Recent Citation

R v Schultz [2022] NSWDC 63

Cases citing this decision · 1 of 1 shown

R v Schultz
[2022] NSWDC 63 Para 25

…In coming to the foregoing conclusions, I am indebted to Abadee DCJ for what he wrote in R v White (No 2) [2021] NSWDC 580, and Haesler SC DCJ in R v Wills: Application by Woolworths Limited [2013] NSWDC 1.…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

R v White
[2021] NSWDC 577 Para 2

…Yesterday, I dismissed the appellant’s appeal against conviction of those offences. The reasons for that decision appear on Caselaw in R v White [2021] NSWDC 577.That leaves the appellant’s severity appeal.…
South Eastern Sydney Local Health District v Lazarus
[2020] NSWCA 183 Para 55

…er had not been sought in the Local Court, being the court that actually convicted the offender: South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183.…
R v Meakin (No. 4)
[2017] NSWSC 999 Para 63

…His Honour’s statement of principles was adopted by Davies J in R v Meakin (No.4 ) [2017] NSWSC 999 at [8], with reference to the current legislative regime. So too, I respectfully adopt the principles as being applicable. In Woolworths , application had been made by the Crown on behalf of the bereaved parents of a…
Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100 Para 37

…In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10, s 556A of the Crimes Act :…
R v Pieper
[2014] NSWDC 242 Para 54

…n cited, as an illustration of the exercise of the power to make a direction to compensate for loss the decision of Letherbarrow SC DCJ in R v Pieper [2014] NSWDC 242. In that case, an offender, who was the general manager of the Riverina County Council, pleaded guilty to multiple counts of misconduct in public off…
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd
[2013] HCA 10 Para 65

…course of construing the latter statutory provision, the plurality in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at [24] alluded to the distinction in general law between ‘damage’, which amounted to the injury and other foreseeable consequences suffered by a person (plaintiff) and ‘eco…
R v David Michael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW)
[2013] NSWDC 1 Para 62

…hael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1; (2013) 16 DCLR 4 (“ Woolworths ”) Haesler SC DCJ set out principles when considering the predecessor to the present Act, the Victims Support and Reh…
R v Mauger
[2012] NSWCCA 51 Para 43

…citizen of a foreign country with whom the United States has friendly relations, as recently demonstrated by security arrangements). In R v Maugher [2012] NSWCCA 51 at [29]-[31], Harrison J (Beazley JA and McCallum JA agreeing) determined that ‘generalised prognostications about the (offender’s) ability to travel o…
Jaron Hoffenberg v District Court of New South Wales
[2011] HCASL 77 Para 38

…CJ at CL at [29]. An application for special leave to appeal this decision was refused. [1] 1. Hoffenberg v District Court Of New South Wales [2011] HCASL 77…
Flynn v R
[2010] NSWCCA 171 Para 70

…ust take into account the factors noted in s77D. Other relevant factors can include the amount sought and the identity of the victim: Flynn v R [2010] NSWCCA 171 at [70] per McCallum J. The asserted impecuniosity of an offender while relevant should not ordinarily be regarded as a reason for declining to make an ord…
Hoffenberg v The District Court of New South Wales
[2010] NSWCA 142 Para 38

…travention of s 195(1) of the Crimes Act in which a submission was made that an order under s 10 was expedient. In Hoffenberg v District Court of NSW [2010] NSWCA 142 at [25], it was held that a finding of the Chief Judge (in a severity appeal from the Local Court) that a deliberate act of vandalism placed the s 19…
Connor v R
[2005] NSWCCA 431

…inarily be regarded as a reason for declining to make an order as circumstances may change or may later be demonstrated to be false: Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 at [41].”…
R v Skaf
[2001] NSWCCA 199 Para 35

…10] A causal connection between the loss and the crime must be established: Fagan v Crime Compensation Tribunal (1982) 150 CLR 666 at 673, R v Skaf [2001] NSWCCA 199 at [35]. [11] While the Act is silent on the topic, given the nature of the orders to be made are akin to civil compensation, it seems appropriate that…
Walden v Hensler
[1987] HCA 54 Para 34

…alty, in the circumstances, the appellant’s conduct itself and the circumstances in which it occurred was ‘trivial’: Walden v Hensler (1987) 163 CLR 561. (It is not a precondition to the order under s 10 that conduct is characterised only as being trivial). The appellant is young and has his career ahead of him. It i…
Fagan v Crimes Compensation Tribunal
[1982] HCA 49

…oss it must include economic loss. [10] A causal connection between the loss and the crime must be established: Fagan v Crime Compensation Tribunal (1982) 150 CLR 666 at 673, R v Skaf [2001] NSWCCA 199 at [35]. [11] While the Act is silent on the topic, given the nature of the orders to be made are akin to civil comp…
Cobiac v Liddy
[1969] HCA 26

…l and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, ‘a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice’”…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
10, 10A, 9 4 mentions
Victims Rights and Support Act 2013 (NSW)
97, 98, 99 4 mentions (from Para 53)
Civil Liability Act 2002 (TAS)
34, 5 3 mentions (from Para 65)
Crimes Act 1900 (ACT)
195, 556A 3 mentions
Interpretation Act 1987 (NSW)
21 2 mentions (from Para 53)
Victims Support and Rehabilitation Act 1996 (NSW)
77D 2 mentions (from Para 62)

Medium Neutral Citation:	R v White (No.2) [2021] NSWDC 580
Hearing dates:	26 October 2021
Date of orders:	27 October 2021
Decision date:	27 October 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 71
Catchwords:	CRIMINAL LAW – sentence – severity appeal from Local Court – offences concern going onto or remaining on running lines and intentionally damaging train carriages – whether a conviction should be recorded – victims’ compensation – damage to property – whether “loss” sustained through or by reason of the offending
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5, 34 Competition & Consumer Law Act 2010 (Cth) Sch 2 – Australian Consumer Law s 236 Crimes Act 1900 (NSW) s 195, 556A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10, 10A Interpretation Act 1987 (NSW) s 21 Passenger Transport (General) Regulation 2017 s 68J Victims Rights and Support Act 2013 (NSW) ss 97, 98, 99 Victims Support and Rehabilitation Act 1996 (NSW) s 77D
Cases Cited:	Hoffenberg v District Court of NSW [2010] NSWCA 142 Hoffenberg v District Court of NSW [2011] HCASL 77 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 R v David Michael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1; (2013) 16 DCLR 4 R v Ingrassia (1997) 41 NSWLR 447 R v Maugher [2012] NSWCCA 51 R v Meakin (No.4) [2017] NSWSC 999 R v Pieper [2014] NSWDC 242 R v White [2021] NSWDC 577 South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183 Walden v Hensler (1987) 163 CLR 561
Texts Cited:	S Odgers, Sentence (5th ed, Longueville Media, 2020)
Category:	Principal judgment
Parties:	Lukas White (appellant) Director of Public Prosecutions (NSW) (respondent)
Representation:	Counsel: Mr E Freelander (solicitor advocate) for the Director of Public Prosecutions (NSW) Appellant in person Solicitor: Solicitor for Public Prosecutions (NSW)
File Number(s):	2017/00367447
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 26 April 2021 Before: Magistrate M Connell File Number(s): 2017/00367447