R v Whitmore

[2019] NSWDC 802

District Court

New South Wales

Medium Neutral Citation:

R v Whitmore [2019] NSWDC 802

Hearing dates:

13 September 2019

Decision date:

24 October 2019

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

(a) for the offence of using an offensive weapon with intent to commit a serious indictable offence, a term of imprisonment of 4 years 6 months, with a non parole period of 3 years 4 months; 

(b) for the offence of assault occasioning actual bodily harm, a term of imprisonment of 1 year 10 months, with a non parole period of 1 year 4 months; 

(c) sentences to be served concurrently.

Catchwords:

CRIME - SENTENCE - use of offensive weapon with intent to commit serious indictable offence - assault occasioning actual bodily harm.

Legislation Cited:

Crimes Act 1900 (NSW) ss 33B(1)(a) and 59(1).

Category:

Sentence

Parties:

Regina (Crown)

Les John Whitmore (Offender)

Representation:

Ms Paine (ODPP Campbelltown)

Mr Mikhael (Solicitor for the offender)

File Number(s):

2018/00332199

Publication restriction:

Nil

Judgment

1. Les John Whitmore, you appear for sentence today in relation to two offences which you committed in the 2018.

2. The first offence is using an offensive weapon with the intention of committing an indictable offence.

3. This involves a contravention of s 33B(1)(a) of the Crimes Act. The maximum penalty for that offence is 12 years’ imprisonment. There is no standard non-parole period.

4. The second offence is that of assault occasioning actual bodily harm.

5. This involves a contravention of s 59(1) of the Crimes Act. The maximum penalty for that offence is 5 years’ imprisonment. Again, there is no standard non-parole period.

6. The facts surrounding your offending conduct are, to a large extent, contained in an agreed statement of facts. The qualification to which I have just referred by saying “to a large extent” will be referred to again by me later in these remarks.

7. The facts for sentence may be summarised as follows.

8. As at September 2018, you were living at home unit complex in the Sydney suburb of Glenfield. You lived there with your partner (Ms Stanford) and her three young children.

9. Another resident in the unit complex was Mr Wade Blacker.

10. On the evening of 13 September 2018 you were absent from those premises. During the course of the evening, Mr Blacker had consumed some alcohol with other neighbours in the unit complex.

11. After having consumed that alcohol, Mr Blacker went to the home unit which you, your partner and her children occupied. He knocked on the door and invited your partner and her children to join him at the movies. This was, on his part, a highly irregular invitation and should not have been made. Ms Stanford declined the offer. The terms in which she did so are not before the Court but it may be assumed that she made herself clear.

12. There the matter should have ended, but it did not.

13. Mr Blacker then went to some premises where some takeaway food was consumed. Mr Blacker then went to a friend’s house and some more alcohol was consumed.

14. Eventually Mr Blacker’s friend drove him back to the home unit block sometime between 3 and 4am of 14 September 2018.

15. Almost as soon as he was dropped off, you came up to Mr Blacker. You said, “Hey mate how’s it going?” You and he argued for a short period of time - and then you struck him in the face with a hammer.

16. When you struck Mr Blacker to the face with that hammer, he fell to the ground. He said, “Mate, what’s going on?” You said “She’s my missus mate and they are my kids.” 

17. You again struck him a number of times with the hammer. You hit him all over his body with that instrument, including his face, his arms, his legs and his knees.

18. It is at this point that I am going to depart from the agreed statement of facts because, in the course of the sentence hearing, a psychologist’s report was tendered on your behalf in which you sought to advance an explanation as to why, at 4am, you were in possession of a hammer. You told the psychologist that you had been repairing a fence when you heard the victim return home and that you then approached him, holding the hammer you had been using for the fence.

19. In the course of your evidence on the last occasion that you were before the Court, you said that the contents of that report were true. I asked you some questions about your alleged use of a hammer at 4 in the morning to repair a fence. As I made quite clear then, and today, I do not believe your evidence. Indeed, Mr Whitmore I think it was a deliberate and calculated lie. You were lurking in the dark, waiting for Mr Blacker to return home - and you had armed yourself deliberately with a hammer for the purpose of carrying out your own form of discipline on him for having quite inappropriately extended the invitation to your partner earlier in the evening. I am satisfied of that beyond reasonable doubt. In my view, it is the only rational inference in the circumstances.

20. Because I made that finding, I am going to have to look very carefully at the balance of what you have said in the course of this sentence proceeding.

21. I shall now return to the narrative.

22. It is the use of that weapon in those circumstances which constitutes the first offence of using an offensive weapon to commit an indictable offence.

23. The agreed facts also tell me that in addition to hitting him with the hammer, you kicked Mr Blacker a number of times. Unhelpfully, the facts do not tell me where you kicked him. It will be self-evident that where a person is kicked can be important in assessing the objective seriousness of the offence. If a person is kicked in the leg, that’s one thing. If the person is kicked in the head, that’s another.

24. Because the facts do not tell me where you kicked your victim, I shall not speculate about it adversely to you. Suffice to say, I have noted the concession you have made through your advocate today that that offence of assault occasioning actual bodily harm is towards the mid-range - which suggests that the kicking was not benign.

25. Mr Blacker was taken to hospital where he remained for four days, which says something about the seriousness of the injuries he received.

26. The agreed facts tell me that when he was examined at the hospital, Mr Blacker was found to suffer from the following injuries: comminuted bilateral LeFort 1 fractures to both the right and left side of the face; a fracture of the nasal process of left maxilla; multiple rounded contusions on either side of the face with old blood on the nostrils and face; significant swelling over the left side of the face in the maxillary region; contusion over the left clavicle; contusion above the right elbow; and swelling to the left knee.

27. Also there is no material before the Court about what the long term consequences of those injuries were to your victim. The Court does not know anything about that important information because the parties have chosen not to tell the Court whether any of those injuries were long term and, if so, to what extent.

28. With that limited information, I assess the objective seriousness of the use of the offensive weapon as mid-range, and the assault as slightly below mid-range, for offences of their kind.

29. Your offending is additionally aggravated because you were on bail in relation to a charge of aggravated robbery using corporal violence.

30. There is no victim impact statement from Mr Blacker so the Court does not know what, if any, psychological injuries he has sustained as a consequence of what must have been a frightening experience for him.

31. In your evidence on 13 September 2019, you said that your victim had a reputation as a drug user and paedophile. There is no evidence before the Court that either of those assertions is true. What is more, you conceded that it was just hearsay around the unit complex - something that might otherwise be described as gossip.

32. You are now 33 years old.

33. You are an Aboriginal Australian.

34. The circumstances of your childhood are set out in the report of the psychologist, Ms Godby and it is clear from that that your upbringing was a dysfunctional one and, according to the directions given by the High Court to sentencing judges, your moral culpability is reduced by reason of that upbringing.

35. Examples of the consequences of your upbringing (and the effect it has had on your life) started very early: when you were in primary school, you were suspended twenty times; and you were expelled from high school in year 9.

36. You have formed a series of relationships over the years and, as a consequence, you are now the father of eleven children.

37. You have never worked for any significant period of time.

38. You have a long term problem with illicit drugs which started when you were 12 years old. It was cannabis. I am going to come back to cannabis in a minute because there are some young people in the body of the Court that I want to say something to and I want them to hear it.

39. But in additional to cannabis you have, over the years, used speed and ice, almost on a daily basis and, as I have said, you have hardly had any work. It does not require much speculation to find out where you made the money to pay for those drugs. It was certainly not by legitimate work.

40. Your long term use of cannabis is a very concerning matter, Mr Whitmore, particularly as you started it when you were 12 years old.

41. This Court, and the Local Court, everyday of the week, sees what happens to teenagers when they consume cannabis at an early age. There is a direct correlation between the use of cannabis by teenage people and a later onset of serious mental illness, by which I mean schizophrenia, schizoaffective disorder or bipolar disorder. The connection is irrefutable. Those people in high public offence who say that cannabis is not a dangerous drug have no idea what they are talking about. They only need to ask any Local Court Magistrate or any Judge at this court and they will be set right.

42. Schizophrenia is an illness which can never be cured. If you develop cancer, it can be treated. If you break your arm, is can be set. Schizophrenia can never be cured. Those who develop it have to remain, for the duration of their life, on drugs to control it; and there is a high number of people who develop schizophrenia who kill themselves - or others. That is why it is a dangerous drug, Mr Whitmore. Now as far as I can see, you have not been diagnosed with it - but you are still within the range of it coming on because it can come on later in life.

43. You have a long criminal history, which began as a juvenile. That criminal history as a juvenile cannot be held against you. But as an adult, you have a long history of offences of dishonesty, violence and drugs. You have spent a very great deal of your adult life in gaol, as have many other members of your family.

44. Because of your criminal history, you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

45. Your plea of guilty was entered at an early opportunity and accordingly you are entitled to the full discount of 25%.

46. You have been in custody since 30 October 2018, initially in relation to the charge for which you were on bail. That charge was negotiated and you ultimately pleaded guilty, not to that charge, but to the offence of assault occasioning actual bodily harm - for which you received a 12 month community correction order. Because that charge did not result in a period of imprisonment, the period of imprisonment that I am going to propose today will be backdated to 30 October 2018.

47. It is said on your behalf that you are remorseful for what you did. You have the onus of persuading me about that on the balance of probabilities and you have not discharged that onus in large part because you lied to me about the circumstances in which the attack occurred.

48. Remorse is an important aspect in assessing an offender’s prospects of rehabilitation. You have yet to seriously address your long term drug issues. Whether there is something underpinning that long term drug use which relates to your childhood is not revealed in the material in front of me. That may well be the case.

49. In your case, considerations of both specific and general deterrence are fully engaged: that is, the sentences to be imposed must be such as to discourage you from offending and to discourage others. The protection of the community is also a consideration which is fully engaged; as is the need to encourage your rehabilitation.

50. No sentence other than one of full-time imprisonment is appropriate for either offence.

51. Because the offence of assault occasioning actual bodily harm was part of a continuous course of conduct associated with the use of the offensive weapon, the sentences which are to be backdated to 30 October 2018 will be totally concurrent, one with the other.

52. It has been submitted on your behalf that I should make the finding of special circumstances to vary the ration of the non-parole period to the head sentence. I decline to do so. I have taken into account the long period of time in your life that you have already been in custody. But the parole period to be imposed will be sufficient, in my view, to encourage and assist you in your rehabilitation; and no further adjustment, in my opinion, is required.

53. So far as the offence of using an offensive weapon with intent to commit serious indictable offence concerned, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 6 years.

54. Because of the discount of 25%, the term of imprisonment is 4 years and 6 months. I fix a non-parole period of 3 years 4 months to date from 30 October 2018 and which will expire on 28 February 2022.

55. I fix a balance of 1 year and 2 months to date from 1 March 2022 and which will expire on 30 April 2023.

56. Insofar as the second offence of assault occasioning actual bodily harm is concerned, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years and 6 months.

57. Because of the discount of 25%, the term of imprisonment is 1 year and 10 months.

58. I fix a non-parole period of 1 year and 4 months which is also to date from 30 October 2018 and which will expire on 29 February 2020.

59. I fix a balance of 6 months to date from 1 March 2020 and which will expire on 31 August 2020.

60. Mr Whitmore, whether or not you are admitted to parole on 28 February 2022 is a matter for the parole board and the parole board alone.

Decision last updated: 13 February 2020