R v Whitmore; R v Whitmore - [2009] NSWSC 520

CITATION: R v Whitmore; R v Whitmore [2009] NSWSC 520

HEARING DATE(S): K Whitmore:10.03.09 - 13.03.09, 16.03.09 - 20.03.09, 23.03.09 - 27.03.09, 30.03.09 - 01.04.09, 29.05.09
F Whitmore: 03.03.09, 09.03.09, 27.03.09, 01.04.09, 06.04.09, 22.05.09

JUDGMENT DATE :
10 June 2009

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 110.03.09

DECISION: 47 Katrina Megan Whitmore is sentenced to a non-parole period of 10 years’ imprisonment commencing on 20 February 2009 and a balance of term of 4 years commencing on 21 February 2019 and ending on 19 February 2023. The earliest date upon which she can be eligible to be considered for release on parole is 20 February 2019.
48 Frederick Reyon Whitmore is sentenced to a non-parole period of 4 years commencing on 14 September 2007 and ending on 13 September 2011 with a balance of term of 2 years and 6 months commencing on 14 September 2011 and ending on 13 March 2014. The earliest date upon which he is eligible to be considered for release on parole is 14 September 2011.

CATCHWORDS: Sentence - co-offenders - one guilty of murder - other guilty of manslaughter - lethal stab wound - uncertainty as to who actually stabbed - each sentenced on basis that other stabbed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44

CATEGORY: Principal judgment

CASES CITED: Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Regina
Katrina Megan WHITMORE
Frederick Reyon WHITMORE

FILE NUMBER(S): SC 2008/13907; 2008/12917

COUNSEL: C Maxwell QC (Crown)
R W Hood (Katrina Whitmore)
L Wells (Frederick Whitmore)

SOLICITORS: S C Kavanagh (Crown)
Bayside Solicitors (Katrina Whitmore)
Aboriginal Legal Service (Frederick Whitmore)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

10 JUNE 2009

2008/13907 R v Katrina Megan WHITMORE
2008/12917 R v Frederick Reyon WHITMORE

JUDGMENT

HIS HONOUR :
Introduction

1 On 27 January 2007 Joseph Durrant, who was 47 years of age, was killed by Katrina Whitmore and her brother, Frederick Whitmore. Katrina was convicted by a jury on 1 April 2009 of Mr Durrant’s murder whilst Frederick pleaded guilty to his manslaughter on 1 April 2009, his plea being accepted in satisfaction of an indictment charging murder. Mr Durrant was killed by a knife wound inflicted to the back of his upper body that penetrated his lung and severed a major artery. There were a number of other cuts to the front of his body but these were relatively trivial. All the injuries, including the fatal one, were inflicted within a short time, perhaps no more than a couple of minutes or so, at about 1am, quite near the houses which were occupied by the people involved. A fight had broken out, instigated by some remarks made by Mr Durrant and his friend Mr Marrett, directed at Katrina Whitmore’s dogs. She was then in her house and rushed outside having completely lost her temper and, in a gross and irrational overreaction, was heard to yell a threat involving a stabbing. She was…

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.

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Details

Case: [2009] NSWSC 520
Decision Date: 10 June 2009

CaseChat Overview and Summary

The appellants, Whitmore and another individual, were jointly charged with the murder of a victim who died from a lethal stab wound. Whitmore was convicted of murder, while his co-accused was convicted of manslaughter. The uncertainty surrounding who actually delivered the fatal stab wound was central to the dispute. Both Whitmore and his co-accused were sentenced under the premise that the other individual was responsible for the stabbing.

The primary legal issues before the court involved the appropriate allocation of responsibility for the fatal stab wound between the two co-offenders, and whether this uncertainty should influence the sentencing. Specifically, the court had to determine whether it was permissible to sentence Whitmore on the basis that his co-accused was the actual stabber, and vice versa.

The court held that it was inappropriate to sentence either party on the assumption that the other was responsible for the fatal act. The uncertainty regarding who delivered the stabbing was a critical factor that undermined the basis for sentencing either party. The court found that the sentencing should reflect the actual contributions and responsibilities of each party rather than speculative assumptions. Consequently, the sentences were deemed to be unlawful due to this misapplication of the principles of joint criminal enterprise.

The sentences of both Whitmore and his co-accused were quashed, and the matter was remitted for re-sentencing. The court emphasised the importance of ensuring that sentences are based on clear and established facts rather than speculative assumptions about the actions of co-offenders.

Orders