R v Whitmore

[2021] NSWDC 637

District Court

New South Wales

Medium Neutral Citation:

R v Whitmore [2021] NSWDC 637

Hearing dates:

10 September 2021

Date of orders:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months.

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim or any other person

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146

Bugmy v R (2013) 249 CLR 571; HCA 37

Category:

Sentence

Parties:

Regina (Crown)
Nathan Whitmore (Offender)

Representation:

Solicitors:
S Allan (ODPP)
D Gibbons (Legal Aid NSW) (Offender)

File Number(s):

2020/00269341

Publication restriction:

Nil

Judgment

1. The offender, Nathan Charles Luke Whitmore, 34 years of age, appears for sentence in relation to one offence of aggravated break and enter with intent to commit a serious indictable offence (larceny), in circumstances of aggravation being infliction of actual bodily harm upon Tony Buckley (the victim), an offence pursuant to s 113 (2), Crimes Act 1900 (NSW). The maximum prescribed penalty for the offence is 14 years imprisonment. There is no standard non-parole period prescribed.

2. When dealing with Mr Whitmore for that offence, the Court is taking into account one further offence on a Form 1 of shoplifting pursuant to s 117, Crimes Act. The maximum prescribed penalty for that offence when dealt with summarily is 2 years imprisonment.

3. Mr Whitmore pleaded guilty on 18 May 2021 at the Wyong Local Court. Having regard to the timing of his plea, I will allow a discount of 25% on sentence.

4. Mr Whitmore has been in custody, bail refused, since his arrest on 15 September 2020. Whilst in custody, he has served sentences for other matters. I will say more later in my remarks about the commencement date of the sentence being imposed today.

The Agreed Facts

5. The victim in the matter is Tony Buckley. The victim’s ex-partner and three children live at 13 Sally Close, Lakehaven. The house is a single storey three bedroom brick dwelling in a small cul-de-sac. The victim does not live at the premises but often stays at the premises and sleeps in the front living room area.

Sequence 1 - Aggravated break and enter with intent to commit larceny, inflict actual bodily harm

6. At about 10.55 am on 10 September 2020, the victim was inside the house doing some art. At the time, he was the only person home. The victim walked out to the front verandah to have a coffee and a cigarette. Whilst standing on the verandah, the victim saw two males who were unknown to him walking down the cul-de-sac towards him.

7. The victim described the offender, Mr Whitmore, as wearing blue and white sneakers, navy tracksuit, white Adidas emblem on left upper leg and three light blue stripes down the legs, a navy hooded jacket and white Everlast emblem on the front and two white stripes down the arms, yellow black coloured gloves and holding a metal bar. The co-offender (who is unidentified) was also described by the victim and was armed with a knife.

8. The offender, Mr Whitmore, confronted the victim and said, “Get inside”. The victim replied, “What for?” Mr Whitmore reached out and grabbed the victim around the neck with one hand and squeezed hard causing the victim not to be able to speak. Mr Whitmore then started to physically force the victim towards the front door of the house whilst saying, “Get inside, get inside”.

9. The victim slipped over and has fallen onto the ground and then there is a brief melee between the victim, Mr Whitmore and the co-offender. During the course of this melee, the victim sustains injuries to his hands, chest, back and legs. The victim then manoeuvred himself off the verandah away from Mr Whitmore. The co-offender who was standing nearby has brandished the knife and said, “I’ll stab you, get back inside or I’ll stab you”. Mr Whitmore has opened the front screen door which was closed but not locked and entered the house.

10. Mr Whitmore then ransacked the kitchen and lounge room, throwing everything on the kitchen bench onto the floor and smashing various items in the house including the victim’s son’s trophy. Mr Whitmore then picked up the victim’s mobile phone which was inside before exiting the house and dropping the phone outside. During this time, the victim has ran down the cul-de-sac towards his brother-in-law, Adam Sales, who also lives in the same street. The victim yelled for Sales to phone police. The victim has then armed himself with an axe from a neighbour’s verandah. Adam Sales and the victim have re‑approached Mr Whitmore and the co-offender.

11. Mr Whitmore and the co-offender fled towards their vehicle. This is captured on CCTV. Mr Whitmore can clearly be seen to be holding a long metal object. The co-offender can clearly be seen to be holding a knife. Mr Whitmore returned to the premises as he had dropped his keys on the verandah and was trying to find them. Adam Sales has started to push Mr Whitmore away from the house. During this, Mr Whitmore’s facemask has fallen off his face onto the ground.

12. The victim has approached the co-offender who was still armed with the knife. The victim has raised the axe above his head in a defensive stance. At this stage, Mr Whitmore and the co-offender have run back to a silver coloured Kia Cerato. Mr Whitmore and the co-offender have then driven away from the scene. The offence was partially captured on neighbouring CCTV. A witness to the incident has also taken a photograph of the offender getting into the vehicle before leaving the location.

13. The victim was treated for minor abrasions and cuts to his hands. Adam Sales was later taken by ambulance to hospital complaining of chest pain.

14. Forensic Services Group were in attendance and examined the scene. The victim’s jumper, mobile phone and the offender’s facemask were taken for examination. DNA results from the victim’s jumper identified Mr Whitmore and the DNA result from Mr Whitmore’s facemask that was dropped at the scene also identified him.

Form 1 offence - shoplifting

15. On 15 September 2020, the offender and a co-offender entered Bunnings at Campbelltown. Whilst in the store, they selected a number of items from the shelves and then placed a number of items in their pants. The offending was captured on CCTV. A manager at Bunnings has been able to determine that what was taken was a screwdriver set worth $30 and a socket set worth $29.95.

16. Mr Whitmore was arrested by police on 16 September 2020. He was at an address in Claymore. He was taken back to Campbelltown Police Station. He declined to participate in a police interview.

17. Those facts clearly disclose very serious objective criminality. The victim was confronted at his home by two strangers, both armed, who threatened him. He was then physically forced towards his house. The community must understand that such behaviour is completely unacceptable and stern sentences will be imposed to deter both this offender and also others from behaving in this manner.

Assessment of objective seriousness

18. In assessing the objective seriousness of the offence, I have taken into account the following factors:

1. That Mr Whitmore was in company with an unidentified co-offender.

2. That each offender was armed with a weapon.

3. That verbal threats to harm were made during the commission of the offence namely that the victim would be “stabbed”.

4. Physical force was used by this offender against the victim.

5. The actual bodily harm occasioned was minor abrasions and cuts to the victim’s hands.

6. Once inside the premises, the offender ransacked the kitchen and the lounge room and damaged items.

19. Having regard to those factors, I assess the objective seriousness as being in the middle of the range.

Aggravating factors

20. In relation to the matter, I am satisfied that two aggravating factors are established. Firstly, that the offender was on conditional liberty in circumstances where he was on bail for two charges, one of larceny and one of possess prohibited drug. Secondly, the offending occurred in the home of the victim.

No victim impact statement

21. There is no victim impact statement before the Court from Mr Buckley. Notwithstanding the absence of a victim impact statement, I have no doubt that the events of that day would have been wholly distressing for the victim.

22. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

23. As I indicated, Mr Whitmore is now 34 years of age.

24. He has a criminal history commencing in 2004 when he was 18 years of age. He was dealt with for an offence of aggravated dangerous driving causing death and sentenced to 4 years imprisonment with a non-parole period of 2 years.

25. In 2008, he was dealt with for an offence of maliciously inflict grievous bodily harm with intent. He was sentenced to 3 years imprisonment with a non-parole period of 21 months. In 2008, he was also dealt with for an offence specially aggravated enter dwelling with intent to inflict grievous bodily harm. He was sentenced to 18 months imprisonment with a non-parole period of 12 months.

26. In 2010, he was dealt with for an affray and also an offence of enter building with intent. He received sentences of imprisonment of 12 months.

27. In 2011, he was dealt with for shoplifting and received a s 9 bond.

28. In 2012, he was dealt with for being carried in a conveyance. He was fined. He was then also dealt with for drive whilst suspended and fined

29. In 2013, he was also dealt with for destroy or damage property, he was fined. He was also dealt with for stalk and intimidate, he received a s 9 bond.

30. In 2015, he was dealt with for contravening an apprehended violence order, he received a s 9 bond. In that same year, he was dealt with for assault occasioning actual bodily harm and stalking and intimidating. He received a total term of 14 months with a non-parole period of 7 months.

31. In 2017, he received an aggregate sentence of 20 months with a non-parole period of 13 months for the following offences: two counts of drive whilst disqualified, common assault (domestic violence), stalk and intimidate (domestic violence) and contravening an apprehended violence order. The non‑parole period for that sentence expired on 24 October 2018. That was the last time that Mr Whitmore was in custody before being bail refused for current offences.

32. In 2020, he was dealt with for two offences of larceny and three offences of shoplifting. In respect of each of those matters, he received 3 month terms of imprisonment and those terms of imprisonment were made partially cumulative. He has been serving those sentences between 9 November 2020 and 3 August 2021.

33. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to the leniency on sentence that would otherwise be available to a person of good character.

34. The following material was tendered on behalf of the offender during the sentence proceedings:

1. Exhibit 1 - Report of Dianna Grujoska, psychologist, dated 31 August 2021;

2. Exhibit 2 - Sentencing statistics;

3. Exhibit 3 - Defence written submissions; and

4. Exhibit 4 - Information in relation to the particulars of the shoplifting offences committed in 2020.

35. The offender also gave evidence during the sentence proceedings. The offender’s background is outlined in the report of Ms Grujoska and also in the offender’s evidence before me. Ms Grujoska assessed the offender on 5 August 2021 via audio visual link for a period of two hours.

36. The offender provided the following background information to Ms Grujoska. He was born in Liverpool. He said he is of Aboriginal background on his father’s side and Australian on his mother’s side. He is the middle child of 15 children and has nine brothers and five sisters. Four of his siblings are from his mother’s previous relationship. He reported that he came from a loving home and that his mum “tried her best”.

37. He said that he was close to his mother and that she had nurtured him. The offender’s mother tragically died last year from cancer. The offender reported that his father was physically abusive towards him, his siblings and his mother and would often use objects such as a metal coat hanger or belt as a form of discipline.

38. He said he would be hit harder if he made noises or cried and that he “was there to be seen not heard”. He said he resented his father and does not have much contact with him. His father suffered an aneurysm several years ago and currently lives with his sister.

39. He said he was sexually abused as a child by his older brothers. He said that one of his other brothers was also abused and that these incidents continued until he commenced primary school and discovered that this behaviour was not normal. He said that he and his brothers did not speak about the past and he avoids thinking about it.

40. The offender’s eldest half-brother is now in custody for sexual abuse. He said that he continues to have a close relationship with some of his siblings and that his brothers probably did not intend to hurt him as they were young themselves when it happened.

41. He said that he left the family home when he was 15 years of age in circumstances where his mother was running from police as a result of drug offences. He said that he was couch surfing for a few years and then lived with one of his brothers.

Education and employment

42. He had attended Cartwright Public School from Kindergarten to Year 6. During this time, he said he briefly attended a behavioural school in Yagoona in an effort to re-integrate into Cartwright Public School. He said he was assessed for ADHD, however did not meet the criteria. He said he had many friends at primary school and became Vice Captain in Year 6. He attended Miller High School in Years 7 and 8 before attending Kiera High School in Wollongong in Year 9.

43. He lived in Wollongong for a short period with his father. The offender described himself as a class clown who was very disruptive. He completed his Year 10 School Certificate whilst in custody. After finishing school, he obtained his Certificate in Small Motors; Certificate II in Furniture Making and a Certificate in Hospitality Operations.

44. In relation to employment, he said he had a history of bar work, forklift driving, labouring and supermarket work. He said he was last employed about four years ago and has since been receiving financial support from Centrelink.

45. He said he was currently in a relationship with his partner, Nadia who he described as a loving and supportive person. They have one son aged 9 years and one daughter aged 8 years. His partner also has one son from a previous relationship who the offender cares for. He said that they have been in an on and off relationship for the last 11 years due to his drug use and tendency towards abusive behaviour.

46. He said he has three other children from a previous relationship when he lived in Narrandera. He has one son aged 6 years and twin daughters aged 4 years. He said that he has not seen these children for several years and he has a poor relationship with their mother.

Medical history

47. In relation to his medical history, he said that he had “died a couple of times” when he was young due to complications as a newborn. At 5 years of age, he said he had contracted a germ in his bowel which led to severe illness. At 15 years of age, he was in a car accident following which a metal plate was implanted into his head. He said he was in a further car accident at 20 years of age which resulted in trauma kyphosis of the spine and arthritis in his hip.

48. He relies on pain relief to cope with these conditions which have not been available to him in custody.

Substance use history

49. He reported that he began to experiment with ecstasy and speed at 15 years of age and eventually began using ice, cocaine and ecstasy on a daily basis. He thought this was normal due to being exposed to drug use and supply from an early age by his parents who also had cannabis plants growing around the house.

50. At 21 years of age, he commenced using heroin which he would consume alongside buprenorphine, Valium and Xanax to “help make the pain go away”. He reported that in 2011 he attended Oolong House for drug rehabilitation which he found helpful in ceasing his drug use upon the birth of his son.

51. At around the same time, he said that he attended Maryfields Day Recovery program for additional support. Whilst in custody, he is also engaged in the EQUIPS addiction and aggression programs.

Psychiatric history

52. He reported being previously diagnosed with bipolar disorder, depression and anxiety. He said that he has never previously seen a psychiatrist or psychologist for treatment of these conditions, however, he has previously taken prescribed medications Olanzapine and Lexapro in around 2012. Since entering custody, he is now taking prescription medication for anxiety.

The offender’s circumstances at the time of the offending

53. The offender reported that his life was progressing well for one year following his release from custody in September 2018. He was abstinent from drugs, following his regime of prescribed pain and anxiety medication, attending a domestic violence course and was in the process of renewing his RSA with the aim of securing employment. However, this progress was halted upon the offender’s children being removed by FACS which deeply affected him.

54. He said that this event caused him to spiral out of control and commence using heroin on a daily basis in order to cope. At the time of the offences, he said he was heavily dependent upon and under the influence of heroin. He reported that his behaviour was motivated by a desire to earn money in order to clear a drug debt and have further access to drugs. He also wished to sell items that were shoplifted in order to purchase drugs with the money.

55. He expressed remorse and regret for his actions stating, “I wish I never done it”.

Assessment

56. During assessment by Ms Grujoska, the offender’s scores indicated “that he was experiencing moderate symptoms of depression and was in the mild range of anxiety and stress related symptomology”. The offender was also assessed as experiencing symptoms consistent with post-traumatic stress disorder and an extremely high dependence on heroin.

57. Ms Grujoska noted that the offender’s results also indicate that he has a high readiness and confidence to change his drug taking behaviour. She went on to note that the offender:

“Reported several adverse childhood experiences such as witnessing and him being a victim of family violence, exposure to illicit substance use and supply in this environment, poor access to support services for his psychological health and early exposure to the criminal justice system. These experiences appear to have ongoing effects on his ability to effectively cope and regulate his emotions and it seems his drug dependence was developed at an early age in response to these childhood issues”.

58. She noted that his drug taking has been a maladaptive coping strategy.

Treatment recommendations

59. Ms Grujoska recommended that the offender engage in an in-house or community program that addresses severe drug dependence issues such as an intensive drug and alcohol treatment program which is available at John Morony Correctional Centre. She also recommended that he participate in the RUSH program whilst in custody.

60. Upon release from custody, she recommended that the offender engage in ongoing treatment in the community for his substance abuse and mental health conditions including local Aboriginal programs, a pain management program and treatment from a psychiatrist as well as a psychologist under a Mental Health Care Plan. She said the offender may also be eligible to access up to 22 sessions of counselling through the Victim’s Counselling Service.

59. During the sentence proceedings, it was not submitted on behalf of the offender that his mental health was causally connected to his offending, rather, it was submitted that the offender’s mental health was relevant to the need for a lengthy supervision period to ensure he receives the assistance that is necessary upon his release to ensure that there is no further offending.

The offender’s evidence

62. The offender gave evidence that as a child he witnessed domestic violence between his mother and father. He was also subjected to assaults a couple of times a week. Whilst he was spoken to by DOCS at the time, he said he denied the assaults as he was in fear of his father.

63. He described in his evidence a long history of drug use. He said he had used heroin since he was 19 or 20 years old. He had had some periods of abstinence. He told the Court he wants to remain drug free upon release into the community. He said he is on the waitlist for Suboxone replacement therapy.

64. He confirmed that whilst in custody, he has been subjected to lockdown because of the COVID-19 pandemic. He said in the previous two weeks before giving evidence he had spent six days in lockdown.

65. He told the Court that he was sorry he had committed the offence and understands he had affected other people, namely the victim. He confirmed that he did not personally know the victim before the offence. In relation to his future plans he says he intends to return to bar work and he is fairly confident he will be able to gain employment.

Submissions on behalf of the parties

66. The Crown relied upon written submissions supplemented by further oral submissions. Mr Gibbons, on behalf of the offender, also relied upon written submissions supplemented by further oral submissions. I have taken those submissions into account in determining the appropriate sentence.

Relevance of the offender’s childhood

67. Having regard to the evidence of Mr Whitmore, I am satisfied he has had a childhood characterised by dysfunction, abuse and neglect. He was deprived of the moral guidance ordinarily provided by parents to their children. There was an early introduction to drug use which was normalised in the home. Unsurprisingly, this led to a lifelong addiction to drugs.

68. I am satisfied that his childhood experiences warrant a reduction in his moral culpability in accordance with the principles enunciated in Bugmy v R (2013) 249 CLR 571; HCA 37 at [42] to [44]. In such circumstances, I propose to moderate the otherwise appropriate sentence.

Prospects of rehabilitation

69. Any view of Mr Whitmore’s prospects of rehabilitation must necessarily be guarded at this stage having regard to his lengthy criminal history and also his longstanding drug issues. It is encouraging that he has been drug free in custody and has indicated that he wants to remain drug free in the community.

70. The Court is hopeful that he accepts any treatment and counselling that is made available to him to give him the best chance of remaining drug free once released. I expect that it will be no easy task for him to resist the temptation of further drug use but I would encourage him to think of his long‑term future and remain strongly committed to being abstinent from drugs. At this stage, I am unable find that he is unlikely to re-offend.

Commencement date of the sentence

71. Mr Whitemore has been in custody since his date of arrest on 15 September 2020. During his time in custody, he has served five sentences each of 3 months duration for offences of shoplifting. Some of the sentences were partially accumulated so dated between 9 November 2020 and 3 August 2021, a period of almost 9 months. I have been provided with the particulars of each of these offences. They relate to items stolen valued at $1,628, $909, $319, $399 and $389 stolen from either tool retailers or Bunnings.

72. Having considered the criminality of those matters and having taken into account the principle of totality, I propose to commence the sentence imposed today on 15 December 2020. This will mean that the time between 15 September and 14 December 2020, a period of three months will notionally be referrable to the shoplifting offences.

The effect of the COVID-19 pandemic

73. Having regard to the evidence of the offender, I accept that custody for him has been more onerous because of the Covid-19 pandemic. Since the re‑introduction of strict health orders in June 2021, inmates have regularly been subjected to lockdown. There has been limited access to visits, even audio visual visits and there has been very limited access to courses. I have taken that into account in determining the appropriate sentence.

Special circumstances

74. It was submitted on behalf of Mr Whitmore that the Court would find special circumstances established and vary the ratio between the non-parole period and parole period giving him a longer period on parole having regard to his need for treatment with respect to his mental health issues and drug issues.

75. The Crown properly conceded that it was open to the Court to find special circumstances. I am satisfied special circumstances are established and I propose to vary the ratio between the non-parole period and the parole period.

The Form 1 offence

76. In sentencing the offender, I have taken into account the Form 1 matter in accordance with the principles enunciated in the Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146.

Determination

77. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.

78. Having considered all possible alternatives I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

79. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty and the offender’s subjective circumstances.

80. Mr Whitmore, in relation to the offence of aggravated break and enter with intent to commit serious indictable offence inflicting actual bodily harm, you are convicted.

81. Taking into account the Form 1 matter, I sentence you to a non‑parole period of 1 year and 3 months to date from 15 December 2020 and expire on 14 March 2022 with a balance of a term of 1 year to expire on 14 March 2023. The total term is 2 years and 3 months which will date from 15 December 2020 and expire on 14 March 2023. The starting term for that sentence was 3 years which I have discounted by 25% for your plea of guilty.

82. I have found special circumstances and I have reduced the non-parole period, that is the time spent in custody and I have increased the time that you will spend on parole. I am satisfied that that will, hopefully, assist you if you are under a longer period of supervision to ensure that you do remain drug free because I accept you now well understand if you don’t remain drug free you are likely to commit further offences. So I am hopeful that you accept any treatment recommendations that are offered to you given that you have now spent this extended period being drug free in custody.

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Decision last updated: 26 November 2021