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 then in the company of her partner, Mr Steven Sotiropoulos, and Frederick. I should mention that Mr Sotiropoulos was also charged with Mr Durrant’s murder but he was acquitted. I am satisfied that his involvement was, essentially, an attempt to restrain Katrina from any physical involvement in the fight. The evidence that he had attacked the deceased was quite unreliable.

2 The course of the fight, which is not at all clear, ended with Mr Durrant’s stabbing. It is certain that this was done either by Katrina or Frederick. An agreed statement of facts was tendered in Frederick’s sentence proceedings. The Crown and defence are agreed that I should sentence him upon the basis that he did not inflict the lethal wound. Logically it must follow that, if he did not inflict that wound, it must have been inflicted by Katrina. However, the proceedings against Katrina are entirely separate and I cannot in law use the agreed facts tendered in Frederick’s case for the purpose of sentencing her. The relevant evidence in her case comes from the evidence that was given at her trial. Although it is agreed, as I understand it, that this evidence can be used in Frederick’s case to provide context, it cannot be used to draw conclusions that are adverse to him. An important question in Katrina’s case is whether I am satisfied beyond reasonable doubt that she inflicted the lethal wound or whether she should be sentenced on the basis that she was involved in the fight, giving support to Frederick, in the knowledge that he had a knife and might use it to intentionally inflict either death or grievous bodily harm. For reasons which I will shortly outline, I am not so satisfied.

3 The Crown case on murder was put to the jury upon two bases. The first was that the jury would be satisfied beyond reasonable doubt that, intending to cause death or grievous bodily harm, Katrina stabbed Mr Durrant in the back. The other basis was that she was aware that Frederick had a knife and was attacking Mr Durrant with the possible intention of killing him or causing him grievous bodily harm and that, despite her advertence to this possibility, she assisted or encouraged him to attack Mr Durrant. Upon this view of the facts, Frederick inflicted the lethal blow. The verdict is consistent with a reasonable doubt that Katrina actually inflicted the wound.

4 In short, both Katrina and Frederick must be sentenced upon the basis that one or other of them inflicted the fatal wound but it is not possible to say which one of them did so. Of course, the crucial difference in Frederick’s case from that of Katrina is that he must be sentenced on the basis, not only that he did not inflict that wound but also he did not advert to the possibility that Mr Durrant would be killed, let alone killed by Katrina with the intention of causing either his death or grievous bodily harm. The basis of his plea is that, being aware that Katrina might have a knife and thus, as a reasonable person would have appreciated, serious injury might be caused to Mr Durrant, he nevertheless participated in the attack upon him and used a knife himself to cause injuries. It is of great importance to understand that, although much of the evidence is common, the cases of Katrina and Frederick are very different in several crucial respects and reflect quite different criminality. Each must, so far as those crucial aspects are concerned, be considered completely independently. The point I wish to emphasise at present, however, is that Frederick must be sentenced on the basis that, although he brought a knife to the fight, he did not inflict the lethal blow and did not advert to the possibility that such a blow might be inflicted by Katrina (or anyone else for that matter) with an intention to cause death or grievous bodily harm. On the other hand, Katrina must be sentenced (in the result) upon the basis that although there is a reasonable doubt about whether she actually inflicted the lethal blow so far as the case against her is concerned, she adverted to the possibility that such a blow might be inflicted (in this case by Frederick) with the intention to cause either death or grievous bodily harm.

5 Although somewhat complicated, these differences arise out of the fundamental point that it is not possible to say beyond a reasonable doubt which of Frederick or Katrina was directly responsible for Mr Durrant’s death. So far as Frederick is concerned, this conclusion derives in substance from the fact that the evidence against him, so far as the stab itself is concerned, is essentially contained in the agreed statement of facts to which I will in due course refer whilst, so far as Katrina is concerned, the evidence against her is that given by the witnesses in her trial. (It is, I think, worth noting that, the statement of agreed facts aside, it would not have been possible for the prosecution to prove against Frederick that he inflicted the fatal wound but this is, legally speaking, irrelevant.)

6 Before analysing the facts insofar as they are relevant to the separate cases of Katrina and Frederick, it is necessary to set out the results of the autopsy examination, since the injuries provide an objective context for the eyewitness accounts.

The autopsy

7 The evidence of the forensic pathologist, Mr Langlois, was not controversial. He conducted an autopsy on the deceased on 31 January 2007. The following is a summary of his findings. The lethal wound was caused by a knife penetrating the deceased’s back near the top edge of the shoulder blade with the wound angling slightly downwards and obliquely towards the centre. The wound penetrated the fifth rib, cutting the right lung and ultimately penetrating one of the large arteries in the lung, causing massive bleeding. Death resulted from impaired breathing and blood loss. I interpolate that it seems to me that this wound could have been inflicted either from the back or, if Mr Durrant was kneeling or crouched with his head bent forward, from the front. It is notoriously difficult to draw conclusions about how particular wounds are inflicted in the course of a fight where the protagonists are moving, possibly quickly.

8 The following additional injuries were noted: a superficial cut involving only the skin 1 cm long running down the front of the left earlobe; a superficial cut 2 cms long just under the ear involving the skin only; a long superficial cut of 13 cms long down the left cheek crossing the jaw and onto the skin of the neck, skin deep; small grazes on the left cheek and the left nostril (very possibly caused when Mr Durrant fell onto the concrete porch after being stabbed); a cut 2 cms long on the back of the left forearm superficially involving the muscle beneath the skin; a cut to the webbed space between the ring and little fingers of the left hand involving only the skin; and a number of very small superficial punctate wounds in the webbed space between the middle and ring fingers, possibly caused by grabbing a knife with a coarse serrated edge or the knife point and hand coming together a number of times; a 1.2 cm cut over the joint of the thumb going through the skin going just into the joint capsule. A thorough examination of the body, including examining the inside of the skin, did not demonstrate any bruises consistent with significant punches or kicks. The bruises that were seen were consistent with Mr Durrant’s falling but, of course, possibly with some other blunt trauma. Overall, however, there was no physical sign which supported the evidence of Mr Duncan about the infliction of either punches or kicks, certainly of any sustained or forceful kind.

Katrina Whitmore: facts

9 Mr Durrant and his friend, Mr Guy Marrett, had been together on Australia Day 2007. Both had been drinking and it is clear that both of them were very substantially affected by alcohol. Shortly before 1 am on 27 January the two men arrived at the driveway of the house where Mr Durrant was living. As they walked down the dogs owned by Katrina started to bark. One or possibly both of them reacted verbally and sufficiently loudly to be heard by Katrina, who occupied a neighbouring house with her partner Mr Sotiropoulos. Frederick and his partner, Ms Pullen, were also there that night. There were also a number of children in the house. Ms Pullen was in the bedroom when the offender yelled at Mr Durrant and Mr Marrett. She was able to see the kitchen but not actually the front door itself but she said that she saw Katrina in the kitchen, leaving the kitchen and going to the door to go outside. She then heard Katrina, Mr Sotiropoulos and Frederick outside, having gone through the front door. In cross-examination she agreed that there was nothing in Katrina’s hands. She said that Katrina was not carrying anything. The Crown prosecutor re-examined Ms Pullen briefly as to whether she had actually seen Katrina go outside but did not question or seek to question her about the accuracy of her observation that Katrina was not carrying anything. Her evidence was therefore left in the position that she had seen Katrina go to the door to go outside. She did not actually see her go outside. But there was not the slightest suggestion made to her that her observation about whether Katrina held anything in her hands was wrong or, for example, that Katrina had gone back into the kitchen say, to get a knife, before actually going outside. If the prosecutor had wished to take issue with Ms Pullen’s evidence in this respect, either as to its honesty or reliability, of course he could re-examine or seek leave to cross-examine. On the Crown case, whether Katrina carried a knife from the house was of critical importance and Ms Pullen’s evidence in this regard was undoubtedly unfavourable to the prosecution. Ms Pullen being otherwise a credible witness with no suggestion to the contrary, her evidence on this matter should be accepted at face value in light of the way in which the prosecution dealt with it. For other reasons which I will discuss there is good reason at all events to accept that it is at least reasonably possible that her evidence was correct and Katrina was not actually carrying a knife. Be that as it may, Ms Pullen heard what she described as a scuffle outside but did not give any further relevant evidence.

10 Mr Marrett’s evidence was that he accompanied Mr Durrant down the driveway when there was an exchange over the dogs although, as he recalled it, with a man rather than a woman. He said that there was some apparently insulting remark which he could not remember but to which Mr Durrant responded, “Why don’t you come out here and say that, you drongo”, that he and Mr Durrant walked on down the driveway when Mr Marrett was suddenly hit in the back of his head. (There is no doubt that he was hit by a Mr Duncan, to whose evidence I will shortly come. I interpolate, however, that Mr Duncan asserts that he does not actually recall attacking Mr Marrett but denies that he would have done such a thing. I prefer the evidence of Mr Marrett.) Mr Marrett said that he turned around and was punched in the mouth, splitting his lip. He then attempted to defend himself, grabbing the other man around the top of his head, pulling him to the ground and hitting him several times in what he said was self defence. Perhaps two minutes later he heard Mr Durrant call out, “Guy, I’ve been stabbed, call the ambulance”. Mr Marrett looked up and could see Mr Durrant attempting to stand up and walking towards the house but when he got to the front porch, he collapsed. Mr Marrett let Mr Duncan go, ran over to his friend, jumped over him and went inside and called the ambulance.

11 The person Mr Marrett was fighting was Mr Adam Duncan. Mr Marrett said that he was on the ground holding onto Mr Duncan when he heard his friend call out and he had to let the man go to try to help Mr Durrant. From where he was he could make out Mr Durrant’s figure and knew it was him but he was unable to make out his face. Mr Marrett was quite clear that he only let Duncan go when he heard Mr Durrant say that he had been stabbed. This, for reasons which will become clear, is an important fact. Certainly, Mr Marrett’s evidence must be approached with caution: he was significantly affected by alcohol; the events occurred very quickly; he was himself involved in a fight; the aftermath was terrible. All these considerations must cast doubt on the accuracy of his account, at least in points of detail. On the other hand, Mr Durrant was his close friend, the words he spoke must have been shocking: it seems to me that, although there must be some uncertainty about it, it is very likely that he would remember what he was doing at the time when he heard them.

12 Mr Duncan had been attending a party at house nearby when he heard the argument about the dogs outside. He had been drinking during the evening but also had taken amphetamines and ecstasy. He said that he was affected by them. Amongst other effects, he found it difficult – at least in retrospect – to know which part of his memories was fantasy or truth. This adds a significant ground of uncertainty about the reliability of his account in addition to all the ordinary human failings of observation and recollection in circumstances such as these. When he heard the argument he went outside with Michael Nguyen and Jamie Hughes. He said that he could hear screaming mainly, I take it, from Katrina but he could not remember what she was saying. He said that saw Katrina running towards the fight. He could not remember how it happened but he remembers fighting with a man we now know to be Mr Marrett. He denied that he would have struck the first blow. He said that they were wrestling and punching on the ground and that his friend Jamie was also involved. He knew, as I understand it, there was another fight going on nearby but he did not see what was happening until he got up when the fight that he was involved in stopped. He said that he saw Frederick and Mr Sotiropoulos kicking “the guy” (meaning Mr Durrant), who was moving back and he saw Katrina standing behind him. He said that the man was on the ground attempting to stand up, Katrina was kicking him and then, “I’m pretty sure Katrina stabbed him in the [back of] the neck” and then Frederick and Mr Sotiropoulos ran away and Katrina ran up the street behind them. He thought he saw the knife snap and the blade fall to the ground. When he saw the stabbing, he was not quite five metres away.

13 In Mr Duncan’s interview with police on 30 January 2007, he told them that he heard Katrina say as he and Jamie walked over towards Mr Durrant and I think, Mr Marrett, “I will stab you in the neck personally”. Elsewhere in the record of interview he quoted the words as being, “You talk to me like that again, fucking dickhead, I will personally come around there and stab you in the neck” and that at that time she was waving a knife. At a later walkthrough, Mr Duncan said that Katrina had said, “You ever talk to my dog like that again I’ll stab you in the throat”. At that walkthrough, which was played to the jury, Mr Duncan showed how the stabbing occurred. Certainly, what he showed was fairly consistent with the wound as it was ultimately described on autopsy.

14 Not surprisingly, Mr Duncan was extensively cross-examined. I do not propose here to analyse his evidence in any detail. I am sure that on some occasions when he was uncertain about facts this was because of a failure of recollection perhaps induced by alcohol and/or drugs or perhaps simply by the ordinary failures of recollection. After all, the circumstances were themselves likely to give rise to confusion. Some of his asserted failures were, I thought, simply because he had decided he was not going to attempt to recall or give candid evidence. Overall, my judgment of his evidence was that he was in part reliable and in other parts unreliable and that he was not really attempting to take seriously and conscientiously the task of giving truthful evidence. In the main, this conclusion relies on his actual evidence but also, to a significant extent, on his demeanour. I concluded that it was not possible to accept with any real degree of confidence any part of his evidence that was not independently supported. In particular, I am not prepared to accept his evidence that he actually saw Katrina with a knife or saw her stab the deceased although it is possible that at this point and, perhaps, even when he spoke to police, he believed that he had seen that happen.

15 I will shortly come to further evidence which suggests that Mr Duncan’s account is unreliable quite apart from its inherent difficulties but I note at this stage that, following the stabbing, Mr Duncan ran back into the house where he had been, with blood running down his face, and demanded the keys to his host’s car so that he could drive home or that his host should drive him home, threatening irrationally that he would smash the car up and take the car keys. She said that he was very angry and when asked what had happened, he said “Steve stabbed someone across the road at Greg’s house. I jumped in and started hitting the guy with Steve, let’s go, let’s go, let’s go”. This must have been Steven Sotiropoulos. In my view, this is critical evidence. It shows that Mr Duncan’s first memory, given perhaps only seconds after the actual event, was not that Katrina had stabbed Mr Durrant but that it had been done by her partner. Furthermore, that he, Duncan, had been hitting “the guy with Steve”. It seems that it was only when, some days later, he spoke to police that he then asserted it was Katrina whom he had seen stab Mr Durrant. This evidence strengthens, indeed requires, the conclusion that Mr Duncan’s identification of Katrina as Mr Durrant’s killer is unreliable.

16 Two other pieces of evidence also undermine the reliability of Mr Duncan’s account. He said several times that he saw the stabbing occur only after Mr Marrett had let him go because it was not until then that he was in a position to see what was happening in the other fight. As I have already pointed out, Mr Marrett was quite clear that he heard his friend say he had been stabbed whilst he was still wrestling with Mr Duncan and holding him on the ground. The other piece of evidence comes from Mr Nguyen who, perhaps alone of all the witnesses, was not affected either by alcohol or drugs. It is unnecessary to set out his evidence in detail. It is sufficient to say that he observed the fight in which Mr Durrant was involved and in particular saw Katrina who, as it happened, demanded that he should get involved to help, one assumes, either Frederick or Mr Sotiropoulos. He said that he saw Katrina clearly, that he was something like two metres away, although it was dark and, to the question, “The one thing you can say about the view you had of her then, she did not have a knife – true?” he answered simply, “Yes.” The Crown prosecutor did not seek, either by re-examination or by seeking leave to cross-examine, to test Mr Nguyen’s unqualified evidence in this respect. He was content to allow that evidence to go to the jury although he submitted to the jury – and I am doubtful about the propriety of such a submission in the circumstances – that they would not accept Mr Nguyen’s evidence. In my view, there was no reason, so far as the evidence went, which justified a rejection of his evidence. Nor did the prosecutor suggest, by attacking Mr Nguyen’s opportunity for observation, reliability of memory or the like, any basis for contending that this evidence ought not to be accepted. To my mind, Mr Nguyen’s evidence was forthright and candid. He had no reason for misstating his evidence and he was in the position of a curious bystander (as odd as that might seem) rather than as a participant. In my view, Mr Nguyen’s evidence on this point should be accepted, all the more so since the prosecutor did not attempt to test it in any way.

17 It is worth observing, I think, that the description of events given by Mr Nguyen and Mr Hughes so far as physical proximity is concerned, is inconsistent with Katrina having been physically involved at any time in the attack upon Mr Durrant.

18 Important independent evidence was given by Mr and Mrs Cross, who lived diagonally opposite the driveway down which Mr Durrant and Mr Marrett walked and at the end of which the fights took place. Mr and Mrs Cross were in the bedroom of their house, which fronts onto the street. As it happened, Mr Cross heard Mr Durrant and Mr Marrett getting out of the taxi on their way home and having an argument about who was to carry the beer. He got up, and looking out of the bedroom window, saw the two men get out of the taxi and walk down the driveway. He heard a dog bark and one of the men told the dog to shut up. A light came on in a nearby house and some people came out. Mr Cross thought there were about three or four of them and he heard a woman’s voice swearing at the men. There was an exchange which culminated a few seconds later in the woman saying, “I’ll stab you in the fucking eye”. As I understand it, Mr Cross thought it was just an argument about a dog and went back to bed. Mr Cross was quite certain that he heard “eye” and not “neck”, although he could not understand any other words that were said aside from the threat. Mrs Cross did not get out of bed to look at what was happening but she also heard the threat that Mr Cross heard. It is perhaps a peculiarity of concentration that no other witnesses heard this threat except, assuming that Mr Duncan had mistakenly recalled it, Mr Duncan. In particular, neither Mr Marrett nor Mr Nguyen heard it. It is, of course, possible that there were two threats, one heard by Mr Duncan and the other by the Crosses, but this strikes me as unlikely. The difference between the accounts may be explained by the ordinary fragility of human perception and recollection. For obvious reasons, the Crosses are more likely to be reliable but it is impossible to be certain about this.

19 A significant difference in the accounts is not so much that, according to Mr Duncan, the threat was to stab in the neck while, according to the Crosses, the threat was to stab in the eye but that, according to Mr Duncan the threat was not immediate but was to stab if the conduct of the person who was being addressed was repeated. If there were such a qualification it was not, it seems, heard by the Crosses. Mr Duncan’s account is more consistent with Katrina not having a knife at the time, the threat being directed at a repetition of the provocative conduct, while that of the Crosses certainly strongly suggests that she did have a knife. In light of all the evidence, however, this suggestive conclusion is not sufficient to my mind to prove beyond reasonable doubt that Katrina in fact held a knife or that she stabbed Mr Durrant or actually intended that he should die or suffer grievous bodily harm. At all events, the words were undoubtedly a threat to cause a serious injury with a knife; they were spoken by Katrina and demonstrate that the possibility of causing very serious injury had occurred to her.

20 For these reasons, I have concluded that, so far from it being established beyond a reasonable doubt that Katrina either carried or wielded a knife it is very probable that she did not. Certainly, there is at least a reasonable doubt as to the matter. It follows that I am obliged to sentence Katrina on the basis that she did not inflict the fatal wound. Furthermore, I am unpersuaded that Katrina herself intended that Mr Durrant should be killed or suffer grievous bodily harm or believed that Frederick had such an intention, although I am obliged by the jury’s verdict to sentence her on the basis that she adverted to the possibility that Frederick might (at least) intentionally inflict grievous bodily harm.

21 The Crown prosecutor made it clear to the jury that the Crown case so far as Mr Sotiropoulos was concerned, depended entirely upon the evidence of Mr Duncan as to his physical attack on the deceased and if the jury had a reasonable doubt about that evidence, he could not be convicted either of murder or manslaughter. The jury’s acquittal of Mr Sotiropoulos meant that it was not satisfied to that degree of Mr Duncan’s evidence. If the jury was not satisfied of Mr Duncan’s evidence one naturally asks how it was that Katrina was convicted of murder. I do not propose to enter into speculation about this except to note that it was open to them to convict on the basis that Frederick inflicted the lethal wound and that, at that time, she was encouraging him by way of herself attacking or otherwise encouraging him to attack Mr Durrant. It may be that the jury regarded the threat that was yelled out by her as amounting to such support and indicating at least an advertence to the possibility of an intentional infliction of grievous bodily harm. So far as this part of Mr Duncan’s evidence is concerned, it is supported by independent testimony.

Frederick Whitmore: the facts

22 I have already referred to the evidence of Mr and Mrs Cross about the arrival of Mr Durrant and Mr Marrett and I do not need again to describe the scene. So far as the crucial circumstances are concerned, it is agreed that he, Katrina and Mr Sotiropouls came out of the house to confront Mr Marrett and the deceased. Frederick had a knife with him and adverted to the possibility that Katrina might also have a knife. Frederick and Mr Sotiropoulos attempted to restrain Katrina but a physical fight broke out. Mr Duncan and Jamie Hughes arrived at the scene, joined in the confrontation and fought with Mr Marrett. It is agreed that Frederick was punched twice in the nose by Mr Durrant without warning and lashed out and cut him with his knife during that assault although he was unaware precisely where the cut was inflicted. It is accepted that he may have caused the slight laceration to the left side of Mr Durrant’s face and neck, the longer shallow cut to the left side of his neck, and the very slight wounds to Mr Durrant’s left forearm and the webbing between the hands and to a thumb. It is agreed that he did not inflict the fatal wound and did not know how or who caused it.

23 Frederick’s account essentially was that he took the knife from the kitchen due to his concern for his sister and, I take it, because he thought he might need to use it in defence. He said that he had no intention of using it offensively and only retaliated when he was hit by the victim on the nose. It is clear that he inflicted what might be called the minor wounds. As I am unable to determine this matter adversely to the offender beyond reasonable doubt I must sentence him on the basis that they were not inflicted with an intention to wound. As I have mentioned, I cannot sentence him for inflicting the fatal wound. The offender denied having any intention to harm Mr Durrant.

24 Frederick admits that by taking a knife into the fight and using it, and being aware of the possibility that his sister had a knife, he appreciated the risk that serious injury could be occasioned to Mr Durrant. Of course, it must follow that, if Frederick did not inflict the wound, it must have been inflicted by Katrina. For the purposes of sentencing Frederick, this logic can be accepted. However, for the reasons that I have already endeavoured to explain, the same logic cannot be used in dealing with Katrina, whose case must be treated entirely independently.

Subjective features

25 Katrina has a number of convictions on her record that are relatively trivial but nevertheless suggestive of loss of temper and a preparedness to resort to some physical force or the threat of it. In December 2001 she was convicted and fined for damaging property, in December 2002 of damaging property and common assault, for which she was also fined, in March 2003 damaging property, and in July 2003, common assault in respect of which she was given a section 9 bond for 12 months and placed under the supervision of the Probation Service. The prosecution submitted that I should take these convictions, especially those for common assault, into account in sentencing Katrina for murder. Katrina was then 20 years of age and said that she had been defending herself from assaults from her partner. It is not appropriate to speculate upon the circumstances of these offences. Common assault may not involve any actual physical force and provocation is no defence. It may be that she had lost her temper on those occasions but they are so far removed from the offence for which I am sentencing her, I do not see how they can fairly be taken into account.

26 A report by Mr W John Taylor, a clinical forensic psychologist, was tendered on her behalf. The history disclosed in the report is that Katrina has a sister and four half brothers. She had, it seems a good relationship with her mother, less so with her stepfather, who spent months at a time away from home. She said that she was ejected from home at the age of 16 years because she had left her employment, and she stayed with older brothers and at times with friends for some years. She commenced a relationship at this time but it ended four years later when her partner died from a drug overdose. She has an eight-year-old daughter from this relationship. There was then a sort of relationship for nine months, to be succeeded by a further relationship with Mr Sotiropoulos, who was and is supportive of her.

27 Katrina left school at the age of 16 years when she was in year 11 and obtained average results in the school certificate, although she had frequently truanted. She worked as a data entry clerk for ten months at the age of 16 and at 18 went on to other work for three and a half to four years. She is 26 years of age. Following the death of her first partner she became very distressed and was diagnosed with depression but did not comply with taking her antidepressant medication. In about August 2008 she cut herself and needed to go to hospital. At that time she had been using ice and was attempting to withdraw. She continues to feel depressed. She would drink to excess about four times a week from the age of 18 years. More seriously, she occasionally smoked cannabis when she was 16 years of age and by the time she was 17 years old, she was smoking daily and continued to do that until she was placed on remand for the present offence. From 17 years of age, Katrina began to use amphetamines occasionally moving at the age of 25 years to smoking ice daily from March 2008 until November 2008. There is, however, no evidence that she was affected either by alcohol or drugs on the night in question. Mr Taylor administered a number of well-tested and conventional psychometric tests. Those tests disclosed among other things inadequately developed personality resources for containing drive and impulse, made worse by substance abuse. She has a mild anger pathology which makes her likely to act inappropriately though generally she can control her anger. If controls have been weakened as a result of substance abuse, then she might act spontaneously. There is some potential for recidivism, assessed as moderate, but it is important to note that the method of analysis is an attempt to predict violent offences which, as I understand it – at least in Katrina’s case – do not offer any prediction that she might engage again in serious violence let alone the offence of which she has been convicted. This result must therefore be treated with considerable caution.

28 Katrina denies that she is guilty of the offence for which she has been convicted or, indeed, of any wrongdoing. Questions of remorse and contrition therefore do not really arise.

29 Frederick is now 35 years of age. His criminal record reveals a conviction for assault in 1996 for which he was fined, for assault occasioning actual bodily harm in November 2001 for which he received a section 9 bond, another conviction for assault in February 2002 for which he was fined and a conviction in April 2008 for common assault for which he was imprisoned for one month.

30 So far as Frederick’s family background is concerned, he described it as caring and supportive. No particular issues arise out of this. He moved out of home around the age of 18 years when he commenced a de facto relationship. His schooling was uneventful and reasonably satisfactory. In year 10 he accidentally dropped a bottle containing petrol over a fire which caused multiple burns to his body requiring hospitalisation for two months and some months’ recovery at home, which affected his schooling adversely. However, he completed his year 10 studies and obtained his school certificate. Although unemployed at various times, he has been able to secure work for most of the time after leaving school. His one long-term relationship commenced 18 years ago and has produced 10 children whose ages range from 5 to 17 years old. Two testimonials have been tendered which speak well of Frederick’s character and commitment to work. The offender commenced drinking, as many do, in his middle teens but over recent years has been drinking to excess. He said that he has smoked cannabis weekly since his teenage years and until he was placed in custody as a result of his arrest for the present offence. There is no evidence that he was affected by either alcohol or drugs on this night.

31 Frederick has expressed regret and remorse for his having been involved in a fight that resulted in the victim’s death. I accept that, indeed, he is remorseful and contrite about this matter. The grief which he displayed when he was interviewed by the police was, in my view, genuine and although it no doubt involved feelings of sorrow that he found himself in that position, I am satisfied that it also reflected genuine remorse for Mr Durrant’s death.

32 The offender has been depressed for a number of years and, in 2004, was placed on a regime of what the psychologist described as “strong medication…which suggests that Mr Whitmore was quite significantly depressed prior to these events”. He has been reviewed by mental health staff whilst in prison. He had attempted to commit suicide in 2003 by hanging himself and was cut down by his 12-year-old son. He has not made any further attempts, perhaps in part because of his medication. On psychometric assessment, his intellectual function was in the average range and scored in the mild range of depression. Overall, I accept that the offender has suffered from significant depression which was active at the time of the offence but did not play a material part in its occurrence.

33 Although he has some convictions for assault, I do not think that any particular emphasis needs to be given to personal deterrence. I think it unlikely that he will offend again in this way. So far as the circumstances are proved in his case, he was not the initial aggressor but came to the scene armed with a knife because of his sister’s angry confrontation with Mr Durrant and Mr Marrett. I accept that it is at least reasonably possible that he did not have any intention to use the knife except in self-defence or defence of his sister but that he did start to use it offensively when he was himself attacked. I do not say, of course, that this is what happened. The evidence about the actual circumstances, as is obvious from what I have already said, is significantly incomplete. However, for the purpose of sentencing the offender, I am obliged to do so on the basis of what I take to be reasonably possible. There is no evidence that justifies the conclusion that the offender thought for a moment that Mr Durrant would suffer either death or really serious injury, let alone that he intended such consequences. The prosecution does not contend otherwise as is clear from the agreed statement of facts and, indeed, from the charge itself. Although I think I must act on the basis that the offender did not himself intend at first to act offensively, he did so in response to being hit by Mr Durrant. His involvement was therefore not in self-defence or, as it happened, in defence of his sister whom he knew possibly also had a knife. In so doing, he appreciated that serious injury could be occasioned to Mr Durrant, as any reasonable person would appreciate.

Assessment of sentence: Katrina Whitmore

34 I now seek to bring together relevant features, both objective and subjective, that impact on Katrina’s sentence.

35 The crime of murder carries with it a maximum term of life imprisonment and a standard non-parole period of 20 years’ imprisonment for a case in the midrange of objective seriousness. In my view, Katrina’s involvement in this offence was an impulsive act of fury at what she perceived to be an attack upon her pets which were, I suppose, just doing what they had been trained to do. As I have said, I do not accept that she had a knife although it is quite possible that she did. I do not accept that she inflicted the lethal wound. She was aware that Frederick had a knife and that he might use it intentionally to cause grievous bodily harm. I do not believe that she intended that grievous bodily harm should be caused let alone that anyone should die. Her involvement was without any reflection and probably represented an immediate and spontaneous response of rage in a situation where the rapidity of events gave little opportunity to step back. In my view, this is a case the gravity of which falls significantly below a case in the middle of the range of objective seriousness.

36 Furthermore, having regard to her relatively young age and relatively trivial criminal history, she does not represent a danger to the community which requires any special emphasis being given to the need for personal deterrence. Her conduct was that of self-indulgent, stupid anger in which she became involved in the murder of another human being whose actions, if possibly somewhat offensive, could not possibly have justified any violence, let alone that to which he was ultimately subjected. Having regard to the sentence which I intend to impose, a sufficient period of supervision on parole will follow as a consequence of applying the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 and there is therefore no occasion to adjust the ratio, although I have rounded down the period resulting from the application of the statutory calculation.

37 Katrina has spent a total of 4 months and 9 days in custody up to 29 May 2009. It seems to me that the best way of accommodating this period is to backdate the sentence from 29 May by that period. Accordingly, the sentence will commence on 20 February 2009.

Assessment of sentence: Frederick Whitmore

38 In my view, the circumstances here as proved against this offender demonstrate a case in the lower range of objective seriousness. I do not think that the fact that he had a knife is material as an independent circumstance of aggravation but that it formed part of the overall circumstances in which, by his sister’s use of the knife, Mr Durrant met his death. It is obvious that the presence of knives in a fight gives rise to a risk of serious injury. I accept that the circumstances arose without warning and that the offender responded to his sister’s irrational anger and conduct in running out of the house to confront the two men over remarks they had made about her dog. Arming himself with a knife was a foolish and impulsive act but, in so far as he reflected on it, it is at least reasonably possible that he intended at that time only to use it in defence of himself and his sister.

39 It is agreed that, as at 22 May 2009 Frederick has spent 1 year 8 months and 9 days in custody referrable to the offence and, of course, allowance must be made for this time. Accordingly, his sentence will commence on 14 September 2007. Since time spent in remand involves incarceration in maximum security and, not only are many programmes not available to remand prisoners, but also he has not had the opportunity which he certainly would have been granted, of moving relatively quickly to a medium and even lesser security gaol, a somewhat greater than day for day allowance should be made in this respect. I consider that the offender’s prospects for rehabilitation are good and that a lengthier period on parole than that provided by the statutory formulation will be useful to encourage rehabilitation and help to avoid any lapse into conduct or drug abuse that might inhibit that course. The offender pleaded guilty somewhat later than at the first reasonable opportunity but before the date fixed for trial. In my view the appropriate discount is in the order of slightly over 10 percent.

Other matters

40 On the sentencing hearing victim impact statements were received from Joseph Henry Durrant, the deceased’s father, Jacqueline Marie Durrant, his mother his brother Michael and his daughter Jessica. They express in moving terms the dreadful loss they have suffered from Joe’s death. He was in many ways an admirable, caring and generous man whose tragic and untimely death must be a cause of continuing grief and loss, which can never be assuaged, least of all by anything that this Court can do. His death was also a loss to the community of which he was a part.

41 It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them in the scales of justice to be weighed by the Court in determining sentence. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim’s death is the cause of pain or grief to others, however intensely felt. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for unlawful killing because the deceased was selfish, obnoxious or a drunk and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and missed dreadfully by friends and family, one or more of whom have suffered as a consequence of the death. If this were not so, counsel for the killer might rationally submit that as the victim was unloved or unlovely, his or her death mattered less and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, angry onlookers, or an indignant media, submit the penalty should be greater. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.

42 For these reasons, although it is entirely proper that Joseph Durrant’s kith and kin should be able in this place to express their feelings of grief and loss at his sad and tragic death, the Court cannot take this into account in sentencing the offenders.

43 Perhaps more difficult to accept but also crucial to the due administration of justice is the notion that the value that the law ascribes to the life which has been taken arises from and reflects that same sense of reason and humanity which also values the lives of the persons who come before the courts for punishment. The punishment imposed by the courts is measured not by the standards of the criminal but by our standards as a civilised and humane community, not so much by respect for the offender but by our own self-respect.

44 Thus, in dealing with offenders, the court must remain objective and dispassionate. Public justice requires all the relevant facts to be carefully weighed. They include much more than the end result of the crime itself but also the events which gave rise to it, the intentions of the offender, his or her personal characteristics and attributes, and the various explanations for what he or she did. The public interest must be reflected in the outcome. These considerations often will be in tension if not in conflict.

45 The High Court of Australia said in Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) –

“…sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions….”

46 Objectively, all cases of murder are very serious. Yet, even in this class of crime, circumstances can differ widely. It is obvious that, at the most serious end of the scale, are cold-blooded murders committed by mature adults with planning and deliberation for the motive of financial or other advantage or – perhaps even more dangerous – for pleasure or some other personal satisfaction. Towards the other end of the scale are murders committed by offenders such as Katrina Whitmore in the circumstances which occurred here. Any just system of criminal sentencing must reflect this difference in the punishment that is meted out.

Sentences

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.

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