R v Whitmore

[2024] NSWDC 617

District Court

New South Wales

Medium Neutral Citation:

R v Whitmore [2024] NSWDC 617

Hearing dates:

28 November 2024

Decision date:

09 December 2024

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Aggregate sentence imposed.

Catchwords:

SENTENCING – penalties – imprisonment – multiple offences – aggregate sentence – aggravated break and enter – break and enter – take and drive conveyance – Dishonestly obtain property by deception – drive while disqualified.

Legislation Cited:

ss. 111(1), 111(2), 112(1)(a), 112(2), 154A(1)(a), 192E(1)(a) Crimes Act 1900 (NSW)

s.54(1)(a) Road Transport Act 2013 (NSW)

Category:

Sentence

Parties:

R;
Tim Whitmore

Representation:

Solicitors:
Crown: Ms L Marsden
Defence: Mr S Rees

File Number(s):

2023/64273; 2023/235840; 2024/60552

JUDGMENT

1. The offender Tim Whitmore appears for sentence after pleading guilty to the following nine offences:

1. Aggravated break and enter and commit serious indictable offence (H76093725/2) pursuant to s112(2) Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of 5 years;

2. Break and enter house (H93518270/1) pursuant to s112(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years imprisonment;

3. Enter dwelling with intent (H93518270/3) pursuant to s111(1) Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment;

4. Take and drive conveyance (H93518270/4) pursuant to s154A(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 5 years imprisonment;

5. Take and drive conveyance (H993403044/1) pursuant to s154A(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 5 years imprisonment;

6. Dishonestly obtain property by deception (H993403044/2) pursuant to s192E(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment. Sequences 13 and 20 on the Form 1 attach to this offence;

7. Drive while disqualified (2^nd offence) (H993403044/4) pursuant to s.54(1)(a) Road Transport Act 2013 (NSW). The maximum penalty is 50 penalty units and/or 12 months imprisonment. The automatic disqualification period is 12 months;

8. Dishonestly obtain property by deception (H993403044/6) pursuant to s192E(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment. Sequence 18 on the Form 1 attaches to this offence;

9. Dishonestly obtain property by deception (H993403044/15) pursuant to s192E(1)(a) Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment. Sequence 23 on the Form 1 attaches to this offence.

2. The maximum penalty, and where applicable the standard non-parole period, operate as legislative guideposts and represent the legislature’s assessment of the seriousness of the offence.

3. There are three separate agreed facts documents. I shall deal with the offending sequentially.

4. On 9 February 2023 the homeowner left her home with doors and windows closed. The offender arrived in a truck in the afternoon. He entered the back yard and removed a flyscreen to enter through a window. He stole items of property valued at around $1500. This included car keys. He closed the window and replaced the flyscreen. This is offence 2. He returned on 13 February 2023 and entered the garage and used the car keys previously stolen to take the car. He was identified by his fingerprints. These are offences 3 and 4. I note the property entered on the first occasion was a home. I have considered the value of the property taken. The intent was to steal. There is no evidence of any planning on the first occasion. The second visit involved only entering a garage although this was planned in the sense the offender returned to the same property and used the keys previously stolen to take the car.

5. On 18 February 2023 the offender used car keys left outside a house to take a car. He was disqualified from driving. He used credit cards found in a wallet inside the car to use or attempt to use the card throughout the early hours of the morning. He spent between $300 and $450 on each of the three occasions. This conduct supports offences 5 to 9. The attempt offences are listed on the three separate forms 1. The taking of the car presents as unplanned. Using the cards was sustained and entailed exploiting the fact that the wallet was located in the car. I have taken into account the amount obtained on each occasion.

6. On 25 February 2023 the offender broke into a house in the early evening. There were persons inside including a mother with her two adult children. The offender was throwing items around and yelling. He made a hole in the gyprock wall and broke a door off its hinges. $4667 damage was occasioned. The father returned home and was told by the offender he had chased someone inside. The offender was making siren sounds and acting erratically. Neighbours recorded the offender outside. The homeowner drove to a nearby location where he located the offender lying on the grass in the company of police. He was still behaving erratically. The offender told police he had used MDMA. The offender was taken by ambulance to a hospital based upon his conduct. He was discharged into police custody after review. This conduct is referrable to offence 1. The offence was not planned. The offender damaged property and created a mess.

7. I have assessed the objective seriousness of each offence. I have considered the submissions advanced. I consider that offence 1 is the most serious and falls below mid-range. Offences 3 and 4 involved some forethought and are relatively serious. The other offences entail lower-level offending.

8. I take into account the matters on each of the forms 1 when sentencing on the principal offence to which each attaches. I do so in accordance with the guideline judgment. Each warrant only a minimal increase to sentence.

9. The offender entered pleas of guilty in the Local Court and he is entitled to a reduction of 25% to each sentence.

10. The offender is now aged 32.

11. The offender has a number of entries on his criminal history. The offender’s first adult offence was in 2011 when the offender was aged 18. His first offending involved indecent assaults and the imposition of a custodial penalty. He is on the Child Protection Register for this offending which impacts his access to some rehabilitation facilities. The offender committed his first break and enter offence in 2012 for which he was also imprisoned. He thereafter committed further property offences and traffic offences. He received other custodial sentences. The Crown submitted the antecedents presented as an aggravating feature. This was not accepted on behalf of the offender. I consider that the offender’s record should be of significance in that it disentitles him to leniency.

12. At the time of all the offending the offender was subject to conditional liberty. He was on bail for offences committed in 2022 and 2023 for driving and dishonesty offences. He ultimately received a custodial sentence for the dishonesty offence. This sentence will inform totality as it coincided with his remand on the index offending. He was also subject to two CCO’s. He received one in 2022 for larceny. I note his drug use and mental health were referred to as part of the sentencing outcome. Also, in 2022 he received a CCO for dishonestly obtaining property. A breach of conditional liberty is an aggravating feature as it entails a breach of trust.

13. The offender has spent a considerable part of his adult life in custody. Between 2012 and now, a period of 12 years, he has only been at liberty for about 4 years and 2 months. Or to restate it, he has spent just over 8 years of that period in custody. It was submitted on his behalf that he is at risk of institutionalisation. The psychologist stated affirmatively that the offender is institutionalised. I accept that is a risk although the overall material on sentence reflects it has not yet occurred.

14. In considering totality I take into account the two sentences that were imposed during the remand period. The offender was arrested on 25 February 2023. The offender was sentenced to a non-parole period of 4 months for an offence of dishonesty obtaining property. This sentence commenced on 22 March 2023 and concluded on 22 July 2023. This offence occurred on 22 November 2022. The offender was sentenced to a non-parole period of 12 months to commence on 1 September 2023 and to conclude on 31 August 2024. This sentence was imposed for an offence that occurred on 23 February 2023. This is of significance as the index offending occurred proximate to and on either side of this date.

15. I am assisted by both a Sentencing Assessment Report and a psychological report of Andrew Wong.

16. The Sentencing Assessment Report was prepared after consultation with both the offender and his partner. The offender is stated to have a confirmed intellectual disability. The offender’s partner and nephew are described as pro-social and supportive. It is stated the offender was ‘somewhat’ engaged with interventions to address both his alcohol and mental health when subject to supervision orders. The offender told the author of the report he had no recall of the offending. He stated he was both under the influence of illicit substances and not taking his medication for mental health issues. He said he was unstable about a month or two prior to offending. He claimed he was psychotic at the time. Both his presentation upon arrest and tendered evidence support this.

17. Mr Wong also spoke with the offender, his partner, and his nephew. He documented the offender’s traumatic background. The offender is an indigenous man who suffered significant childhood disadvantage and exposure to violence. His parents were drug dealers, and he was exposed to violence and crime at home and in his community. {redacted}. His drug use commenced in childhood. It has diversified and continued even whilst in custody. The offender advanced to Mr Wong that he had been abstinent for 3 months. He gave evidence on sentence of being on injectable buprenorphine and attending four drug treatment sessions. These sessions stopped when he transferred gaols. {redacted}. The offender has a limited employment history.

18. The offender has a child who is in government care.

19. The offender has unresolved complex trauma, chronic psychosis and a possible traumatic brain injury. It is stated the offender has emerging insight into his mental health issues. Limited empathy was noted. Even though recently drug abstinent, there remain signs of psychosis.

20. Mr Wong documented the limited score in adaptive functioning and global impairment. This required daily support. The offender is interested in receiving focussed assistance through obtaining an NDIS plan. This additional support can only assist.

21. Mr Wong reported Dr Chew, psychiatrist, diagnosed drug induced psychosis to explain the offending in offence 1. This was said to explain the absence of memory. The offender said some offending was informed by need based on the loss of employment. Mr Wong diagnosed schizophrenia and a number of substance use disorders, each in stages of remission.

22. I accept that the offender’s background informs his drug use and limited cognition. These in turn inform his offending. This serves to lessen his moral culpability.

23. The offender expressed he felt shame and regret due to his offending. I accept that there is some remorse although limited in its expression due to cognitive functioning.

24. Mr Wong opined the offender was at high risk of reoffending. The recent drug abstinence, which is in a controlled setting, is to be measured against a lengthy period of poly-substance abuse. There is recidivism that has returned him to custody. I determine he has poor prospects of not reoffending. Any steps towards rehabilitation, including motivation and drug-abstinence, are recent and not progressed. Personal deterrence is of significance.

25. I determine general deterrence to be of importance but somewhat reduced due to mental health issues.

26. It was submitted on behalf of the offender that he should be released without further custody. I do not accede to this submission. Given his other sentences, he has been on remand solely referable to these offences between 22 July 2023 and 1 September 2023 and then from 1 September 2024, a period of about 4 ½ months. I accept that there would have been significant concurrency with the temporally and offence type related offending that received the 12-month non-parole period. In considering an overall sentence I am mindful that the offending occurred over four separate, yet close in time, days.

27. A finding of special circumstances was invited based on accumulation, the need to promote rehabilitation, institutionalisation and to assist with reintegrating into the community and receiving treatment. I endorse this submission.

28. The offender is convicted of each of the nine offences.

29. I intend to impose an aggregate sentence. I nominate the following indicative sentences, each reduced by 25%:

1. Aggravated break and enter and commit serious indictable offence (H76093725/2): 3 years imprisonment with a non-parole period of 18 months;

2. Break and enter house (H93518270/1): 2 years and 3 months imprisonment;

3. Enter dwelling with intent (H93518270/3): 1 year and 9 months imprisonment;

4. Take and drive conveyance (H93518270/4): 18 months imprisonment;

5. Take and drive conveyance (H993403044/1): 14 months imprisonment;

6. Dishonestly obtain property by deception (H993403044/2), taking into account the two matters on the Form 1: 10 months imprisonment;

7. Drive while disqualified (2^nd offence) (H993403044/4): 4 months imprisonment with the automatic disqualification period of 12 months;

8. Dishonestly obtain property by deception (H993403044/6), taking into account the one matter on the Form 1: 9 months imprisonment;

9. Dishonestly obtain property by deception (H993403044/15) taking into account the one matter on the Form 1: 9 months imprisonment.

30. The sentence imposed is one of 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months to date from 1 December 2023. The offender will be eligible for release to parole on 28 February 2026. The sentence will expire on 31 May 2028. The disqualification period imposed applies.

31. This variation to the statutory ratio to 50% gives effect to my finding of special circumstances. I appreciate with partial accumulation on the 2023 sentence this ratio will be modestly impacted. No lesser sentence would address the offending.

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Decision last updated: 21 January 2025