R v Whiteley - [2021] NSWSC 153

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Whiteley [2021] NSWSC 153
Hearing dates: 9-12 November 2020, 16-20 November 2020, 23-27 November 2020
Decision date: 25 February 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
Sentenced to imprisonment for a non-parole period of 24 years, commencing 2 August 2018 and concluding 1 August 2042, with a balance of term of 11 years, concluding 1 August 2053.
First eligible for release on 1 August 2042.

Catchwords:
CRIME – Murder – Sentencing – infant victim – no substantial offending – no prior abuse or domestic violence – severe assault – onerous incarceration conditions – special circumstances – sentence imposed.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)

Category: Sentence
Parties: Regina (Crown)
Timothy Whiteley (Offender)
Representation: Counsel:
L. Carr (Crown)
P. Krisenthal (Offender)

File Number(s): 2018/00238189
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the victim’s name or any identifying or potentially identifying information (including any information in relation to the name of the mother) is prohibited.

EX TEMPORE Judgment

HIS HONOUR: The Court is given the task of setting and imposing a sentence on Timothy Andrew Whiteley, who, on 27 November 2020, was found guilty by a jury, of the murder of the deceased.
The murder occurred on 19 June 2018 at Tarro and on 9 November last year Mr Whiteley was arraigned in this Court.
The offender, Mr Whiteley, is almost 29 years of age and was 26 at the time of the offence. The deceased was aged 20 months.
The maximum penalty for murder is life imprisonment and, ordinarily, the standard non-parole period is 20 years. Because the deceased was a minor the standard non-parole period is 25 years’ imprisonment for the hypothetical mid-range offence of that type. Both the maximum sentence and the standard non-parole period are guideposts in setting and imposing a sentence. But life imprisonment, the maximum sentence, is duly imposed only in circumstances involving the worst cases of murder.

The Process of Sentencing

To those not familiar with the sometimes, if not always, difficult task of imposing an appropriate sentence, it may be difficult to understand. The Court takes a range of sentences available for a crime and considers, within the offence committed, where in a hypothetical scale from the least culpable to the most culpable the particular offence fits.
All murders are serious. Murder is the most serious offence in the criminal calendar because society values human life above all else and the sanctity of human life must be protected.
Moreover, the criminal law operates on the basis that mankind has free will – we have the capacity to choose to obey the law; and we are punished appropriately when we do not.
As stated, to those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct…

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 Whiteley

Details

AGLC: R v Whiteley [2021] NSWSC 153
Case: [2021] NSWSC 153
Decision Date: 25 February 2021

CaseChat Overview and Summary

The matter of R v Whiteley came before the court where the appellant faced charges of murder in relation to the death of an infant. The court was tasked with determining an appropriate sentence in light of the unique circumstances surrounding the case. The appellant had no prior history of substantial criminal offending, nor had there been any previous instances of abuse or domestic violence. Despite this, the nature of the offence involved a severe assault on the infant, resulting in death.

The central legal issue before the court was to decide on a sentence that would be both proportionate to the gravity of the crime and considerate of the appellant's lack of a criminal record and absence of prior violent behaviour. The court also had to weigh the special circumstances, including the severe conditions of incarceration for the appellant and the particular vulnerabilities of the victim. The sentencing principles of deterrence, retribution, rehabilitation, and protection of society were all considered in the context of this tragic case.

In delivering the judgment, the court acknowledged the extreme nature of the crime, recognising the need for a sentence that appropriately reflects the gravity of the offence while also considering the appellant's background. The court recognised the severe assault that led to the infant's death but also noted the appellant's lack of substantial prior offending and absence of a history of abuse. The onerous conditions of incarceration were also taken into account as a mitigating factor. Ultimately, the court determined that a balanced approach was required, resulting in a sentence that aimed to uphold justice while considering the unique circumstances of this case.

Orders