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…

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 Whitmore

Details

AGLC: R v Whitmore [1999] NSWCCA 75
Case: [1999] NSWCCA 75
Decision Date: 24 July 1998

CaseChat Overview and Summary

The case of R v Whitmore involved a defendant charged with the murder of a victim. The dispute centred on the appropriate sentence to be imposed on the defendant, who had been found guilty of murder. The case was heard in the Supreme Court of New South Wales. The primary legal issues before the court were the appropriate weight to be given to factors such as the level of premeditation, the age of the defendant at the time of the offence, and the relationship between the defendant and the victim.

The court was required to consider whether these factors warranted a sentence that was less than the mandatory life sentence that would otherwise be imposed for a murder conviction. The defence argued that the level of premeditation was not high, that the defendant was young at the time of the offence, and that there were extenuating circumstances due to the relationship with the victim. The prosecution argued that these factors, while relevant, did not warrant a departure from the mandatory life sentence.

The court found that while the defendant's age and the relationship with the victim were mitigating factors, they did not outweigh the seriousness of the offence. The court emphasised the importance of deterrence and the need to uphold the rule of law. The premeditation factor, though not at the highest level, still indicated a significant degree of planning and intent. The court held that these factors, taken together, did not justify a departure from the mandatory life sentence. The court found that the defendant was to be sentenced to life imprisonment, with a non-parole period set by the court.

Orders