R v Whitmore

[1999] NSWCCA 75

CITATION:	Regina v Whitmore [1999] NSWCCA 75 revised - 13/08/99
FILE NUMBER(S):	CCA 60264/97
HEARING DATE(S):	24 July 1998
JUDGMENT DATE:	24 July 1998
PARTIES :	Regina v Arthur Edward Whitmore
JUDGMENT OF:	Mason P at 21; Grove J at 2; James J at 22

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70066/96
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	P. Strickland (Appellant) L.M.B. Lamprati (Crown)
SOLICITORS:	T.A. Murphy (Appellant) S.E. O'Connor (Crown)
CATCHWORDS:	Criminal Law and Procedure - Sentence - Murder - Factors of Premeditation, Age of Offender, Relationship With Victim
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60264/97

MASON P
GROVE J
JAMES J

Friday 24 July 1998

REGINA v ARTHUR EDWARD WHITMORE

JUDGMENT

1 MASON P: I will ask Grove J to deliver the first judgment.
2 GROVE J: This is an application for leave to appeal against severity of sentence imposed in the Supreme Court sitting at Newcastle by Newman J following a trial in which the applicant was convicted of murder. His Honour sentenced the applicant to a total term of 25 years penal servitude specifying a minimum term component of 15 years dating from 1 May 1996 when the applicant was taken into custody.
3 The applicant was born on 5 March 1931 and hence was aged 66 years when the murder was committed which was on the same day as he was arrested. The learned sentencing judge found the following facts. The victim Colleen Edith Sharpe was aged 53 years and resided at Katoomba with her husband. About 7 months before the killing she met the applicant who was then residing in the Blue Mountains area. They commenced a sexual association, meeting at the applicant’s home and that of the victim and her husband. Subsequently the applicant moved to the Central Coast area but they continued to meet at Katoomba. Until a few days before the death Mr Sharpe was unaware of the association, indeed he was unaware of the existence of the applicant.
4 On 25 April 1996 Mrs Sharpe flew to Brisbane to visit a relative. By arrangement the applicant also went to Brisbane. They returned and on 29 April Mrs Sharpe telephoned her husband at his work in Katoomba and told him of the affair. When he arrived home he found Mrs Sharpe packing her clothes. Shortly thereafter the applicant arrived and he and the victim left.
5 On the afternoon of the following day Mrs Sharpe rang her husband saying that she wished to come home. A few moments later the applicant rang him and said that Mrs Sharpe would not be returning home, although on the telephone he could hear his wife saying that she would be returning to Katoomba and the applicant in an argumentative tone saying that she would not.
6 On that evening the applicant rang Mr Sharpe again and later his wife rang saying that she would not be coming home that evening.
7 Shortly before 8 o’clock the next morning Mrs Sharpe rang her husband and told him that when she came back to Katoomba she would be staying with Grace Rogers after which the telephone connection terminated. Mr Sharpe correctly interpreted this as a coded message. Grace Rogers had been a fellow employee of Mr and Mrs Sharpe who was murdered about six years previously. Mr Sharpe went to the police station and reported the matter. Upon his return home shortly before 10 am he received another telephone call from the applicant who told him that he had shot Colleen Sharpe and that she was dead. That call obviously ended and a few minutes later the applicant rang again inviting Mr Sharpe to come and collect the body. His Honour commented that that was as callous a remark as one could imagine. I agree.
8 The applicant was lawfully in possession of a pistol being a member of an appropriate club. Mrs Sharpe had been shot between the eyes at point blank range.
9 The prisoner telephoned his sister after he had committed the murder and complained that after “all he had done” to have a pension arranged for Mrs Sharpe and her to move into his house she had threatened to leave and accordingly he had shot her.
10 After his arrest the applicant told police that he had been assaulted by the deceased and that she had demanded money from him for sex.
11 The lastmentioned acquires some significance in the context that in 1968 the applicant had been convicted by a jury of maliciously inflicting grievous bodily harm upon his then wife. At the time of his arrest for that offence he had complained of the aggression of his wife towards him in relation to sexual matters. Indeed in an unsworn statement to the jury at his trial he continued to complain that his wife had victimized him in her demands for sexual attention.
12 His Honour was assisted in analysis of these matters by Dr John Strum a consultant psychiatrist who had reported on his examination of the applicant which took place shortly before trial.
13 The first challenge by the applicant relates to the lastmentioned matters and his Honour’s finding that the material indicated a dangerous propensity in the applicant to attack women with whom he has formed a relationship when problems arose in it. It was contended that three matters had been relied upon in reaching that conclusion first, the conviction in 1968, second an observation by Dr Strum concerning a propensity to violence against women with whom the applicant has a relationship and third a further observation by Dr Strum concerning violent reaction and response by the applicant which might be expected if he encountered difficulty in a relationship.
14 As is clear from Dr Strum’s report he was quite conscious of the long time gap since the previous offence and he particularly observed the difficulty in predicting that such an event would not be repeated because of history in the case of the applicant. The submission has been couched in an attack upon his Honour’s finding that there was a propensity to attack women but as was pointed out in submission by the Crown his Honour’s finding related specifically to danger to women with whom the applicant had formed a relationship when problems arise in that relationship. Dr Strum had thought that given the age now attained by the applicant his chances of getting into another relationship would be remote and his observation that the applicant represented no danger to the community was related to that remark and was very much qualified by his following observation:

“If, however, (the applicant) were to form another relationship and fall in love with somebody who used him and left him then the pattern may well emerge again.”

14 I find no error in his Honour’s conclusion and it was appropriate to take into account this dangerous propensity on the sentence. The passage which he cited from Veen v The Queen (No 2) 1977 164 CLR 465 cannot be understood to refer only to dangerous propensity to the community in general and there was powerful evidence suggesting that if the applicant formed a relationship with any woman then if problems arose that woman would be in acute danger.
15 The second matter urged on behalf of the applicant was that his Honour erred in not giving sufficient weight to the applicant’s age. We were referred to observations in this Court in R v Holyoake 1995 82 A Crim R 502 and in Victoria in R v Yates 1985 VR 41. His Honour made express reference to the statistical life expectancy of the applicant and it cannot be suggested that he was not conscious of the applicant’s advanced years. The nature of such statistics is of course that as one lives beyond any point at which an observation of statistical expectancy is made, the age at which death might be expected advances. There was little to be said in favour of the applicant. His Honour noted that he gave earnest consideration to the maximum penalty and it was in my view appropriate for him so to do. His finding that the applicant intended to kill as distinct from harbouring an intention to do grievous bodily harm is important. The circumstances of the offence and the surrounding behaviour of the applicant give no grounds for any expectation on his part for lenience. It was appropriate that his Honour include a significant element of personal and general deterrence in the sentence which he imposed. The applicant was found to have killed simply to give vent to rage. The circumstance that the victim was able to give the coded message to her husband is a convincing demonstration that the applicant had in some fashion foreshadowed his intention and the passion to which he gave way was not therefore entirely sudden or immediate but had an element of premeditation. Obtaining his pistol and shooting the victim directly between the eyes is further confirmation of preparation and determination. He was found to be without remorse. His Honour found that the applicant’s age should be taken into account in extending the additional term element of the sentence in order that the applicant might have some possible opportunity for release on parole. As is obvious from his remarks he was conscious of any grant of parole being affected by the duty of the Board particularly as specified in s 17 of the Sentencing Act. The contention is essentially that his Honour erred in not giving sufficient weight to the applicant’s age. That is effectively a challenge to an exercise of discretion. I see no basis upon which this Court should intervene to upset his Honour’s exercise.
16 The third and final submission advanced on behalf of the applicant was that the sentence was manifestly excessive. Reference was made to what was claimed to be a class of “ordinary domestic murder”. For my part I would reject the implication that there is some such specific classification. It has been observed that killings within a domestic situation occur very often when there has been a build up of tension between killer and victim over a period of years, and some account may need to be given to the frequent circumstance that the offender has acted whilst affected by stresses and tensions within a relationship. That is not to say that existence of such is necessarily a mitigating circumstance and each case needs to be assessed in the light of its own facts but it is often the case that some mitigation can be found in such circumstances. That does not establish some less serious category of “domestic murder” or any category under similar label.
17 This case is far distant from that. The applicant and the victim had been having an affair but subject to the brief excursion to Brisbane, they had been together in anything approaching a domestic type situation for less than two days. His Honour found and he has not been shown to have erred, that the killing was the direct result of enragement on the part of the applicant because Mrs Sharpe decided to leave and not go on with what was apparently proposed.
18 It was claimed that this was not a case where there was evidence of planning or long premeditation. As I have pointed out there was some evidence of premeditation and the contention that it was not long does not in my view, carry any significance in the circumstances of this case.
19 I am unable to detect any error in his Honour’s findings or approach. The sentence imposed and the orders made were within the range of the sound exercise of his discretion.
20 I propose that application for leave to appeal be granted but the appeal dismissed and the sentence confirmed.
21 MASON P: I agree.
22 JAMES J: I also agree.
23 MASON P: The orders of the Court will be as proposed.

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