R v Whittall

[2020] NSWDC 146

District Court

New South Wales

Medium Neutral Citation:	R v Whittall [2020] NSWDC 146
Hearing dates:	24 April 2020
Decision date:	24 April 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Full time custodial order to be served by way of an intensive correctional order: For orders see [30]
Catchwords:	SENTENCE – Intimidation - sentence after trial   SENTENCE - relevant factors on sentence - fact finding - offender in company - offender armed – giving full effect to acquittal on more serious count - doubt as to nature of weapon - enforcement of drug crime debt - disadvantaged background – limited criminal record - on bail – possibility of Local Court disposition considered - community safety best served by Intensive Correction Order.
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and trafficking Act 1985
Cases Cited:	Fangaloka v R [2019] NSWCCA 173 Karout v R [2019] NSWCCA 253 McCullough v R (2009) 194 A Crim R 439 Olbrich v The Queen (1999) 199 CLR 270 Pullen v R [2018] NSW CCA 26 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Chaise Whittall (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr A Metcalfe (for the offender) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)   Solicitors: Morrisons Law (for the offender)
File Number(s):	2019/00056866

SENTENCE

Introduction

1. On 12 March 2020 at Wollongong District Court, Chaise Whittall and Wilson were found guilty by a jury of one account of intimidation: s 13(1) Crimes (Domestic and Personal Violence) Act 2007. They were each acquitted of entering a dwelling armed with a dangerous weapon: s111 (3) Crimes Act 1900. Wilson was also convicted of intentionally damaging property: s 195(1)(a) Crimes Act 1900.

2. Whittall’s sentence was adjourned until today. All parties appeared using Virtual Court. Whittall used facilities at his solicitor’s office. Wilson’s sentence is for hearing in May 2020.

Facts for Sentence

3. On 19 February 2019, four men went to an address in Koonawarra. They entered that home. One was armed with a small axe, the other with an object that the occupants believed to be a TASER. The occupants knew two of the men, Whittall and Wilson. In the home, they made demands for money or drugs that they believed the occupant, Mr Sheffield, was holding for a local drug dealer.

4. Mr Sheffield said he did not have the dealer’s drugs or money. He showed the men his bedroom. They looked under the bed and in a tin by the bed. Satisfied there was no money or drugs there, they left. As they did Wilson swung the axe putting a hole in a fibro-cement wall. The incident took less than a minute.

5. The not guilty verdicts raise an issue about the basis for the acquittal. Given the way the trials were run three possibilities emerge; they are not mutually exclusive:

1. A merciful verdict.

2. A doubt as to what was intended when the offenders entered Mr Sheffield’s home and an acceptance of the possibility they did not barge in, but were invited in. And,

3. A doubt as to whether Whittall was armed with a TASER - a dangerous weapon.

6. I need only sentence on facts consistent with the jury verdicts. Matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt: Olbrich v The Queen (1999) 199 CLR 270. I am not obliged to sentence on the basis most favourable to the offender. If I am to give each accused the full benefit of their acquittals, it seems I should proceed on the following basis.

7. The offenders went to Sheffield’s home to obtain money and or cannabis, which they believed the dealer owed them. They believed Sheffield was holding the dealer’ money and drugs for safekeeping. The dealer had refused to give them either the cannabis they had bought (Wilson’s version) or the money leant to buy cannabis (Whittall’s version). The two versions are not mutually exclusive as they may both have been owed a debt by the dealer. Neither offender had a particular grievance with Mr Sheffield but each thought it more expedient to get the money from Mr Sheffield rather than risk a direct confrontation with the dealer and his associates. They went together with others for mutual support and they went armed “just in case.”

8. The offender’s threatened and put pressure on Sheffield:

• By calling Sheffield a “cunt” and using words like “where the fuck is the money” and “we’re not mates.”

• By their actions – both were armed: Wilson had a small axe and Whittall was wielding what his victims thought was a TASER. I could not be satisfied beyond reasonable doubt whatever the object was it was able to inflict harm.

• By the presence of others –two other men were also present. I accept, as Whittall said, someone drove them there. I do not accept Wilson told police he walked there.

9. That “pressure” amounted to intimidation - which is, an act or conduct that causes a reasonable apprehension of injury, that is; physical or mental harm, to any person done with the intention of causing the person to fear physical or mental harm.

10. The offence occurred in Mr Sheffield’s’ home. His girlfriend was present. The incident was serious. It was not a low range offence. Both offenders were armed; they had others with them for support. Each took the law into their own hands in order to enforce a debt. The offence occurred in the context of other drug related crimes.

11. At trial Ms Faulkner gave evidence of her fear and distress. I accept beyond reasonable doubt those emotions was genuine.

12. Mr Sheffield also feared for himself but feared more that he could not protect his girlfriend. His concerns were expressed in a 000 call made immediately after the incident. He told the 000 operator that the armed men were going to the dealer’s home. He was so concerned that he did not then, or subsequently, try to minimise his own criminal involvement with the dealer. His calling the police was not expected. It outraged Whittall, who on arrest yelled, “He’s a fuckin drug dealer that runs to the cops. He’s literally; he’s a dead set a drug dealer who runs to the cops. How does that work…?”

Criminal Record

13. As at February 2019 Whittall had convictions for relatively minor matters. That record does not disentitle him to the leniency often given first offenders. But, he was on bail for an assault occasioning actual bodily harm offence committed on 10 November 2018. His breach of the promise inherent in any bail decision to be of good behaviour must be taken into account an aggravating factor on sentence.

Evidence on sentence

14. Whittall did not give evidence. Ms Ernst from Community Corrections has however provided a thorough and helpful Sentence Assessment Report; dated 16 April 2020.

15. Whittall was born in 1998. He reports a tumultuous childhood, which left him homeless at 13. This in turn impacted on his education and his socialisation skills. In recent years things have improved. He has commenced an apprenticeship and TAFE study. He now lives with his mother, his partner and their child. Until the COVID-19 lockdown he had a job.

16. Whittall still has no insight into his offending but he is amenable to intervention. A supervision plan is proposed that involves:

• Psychologist assessment and treatment.

• Attending the Equips Aggression programme.

• Alcohol and drug assessment and recommended treatment

• Practice guide interventions for impulsive behaviour, anger and stress management.

17. Community Service work is available but during the COVID-19 lockdown it will be suspended and he will be credited with 7 hours per week until work resumes.

Submissions

18. I am indebted to Mr Coulton, solicitor for the Director of Public Prosecutions and Mr Metcalfe, counsel for Whittall, for their comprehensive written and oral submissions. I hope this judgment does justice to them. Their primary focus was on what facts I could and would find proved. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determination as to the appropriate sentence.

19. Mr Metcalfe submits that this offence was toward the low end of the spectrum. I do not agree. The acts of these armed men in another’s home could not meet that description.

Local Court disposition

20. Mr Metcalfe submits that, as the offender was found not guilty of a purely indictable offence the offence for sentence could have been dealt with in the Local Court. Accordingly, he submits that the court should sentence on the basis the reduced maximum penalty would apply in that jurisdiction: McCullough v R(2009) 194 A Crim R 439. The argument is theoretical as Local Court disposition was not a possibility as the intimidation charge was too interconnected with a solely indictable offence. This is not a matter that “ought to have remained in the Local Court:” Zreika v R [2012] NSWCCA 44 at [109].

Guidance

21. While every offence and every offender requires individualised treatment courts must, in the exercise of their undoubted discretion, take guidance from a number of sources. They include; the maximum penalty, here 5 years imprisonment; and the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.

22. There can be no reduction of the sentence for remorse, facilitation of the course of justice or a guilty plea – but the offender is not to be penalised for exercising his right to a trial by jury and he must have the full benefit of his acquittal.

Synthesis - an Intensive Corrections Order

23. Here the offence was so serious that only a custodial sentence could meet the purposes of sentencing. Victim vindication and recognition of the harm crimes such as this cause the community require it.

24. The offender still fails to understand how serious his actions were. Others in the community have to understand that to intimidate another in their home to enforce a debt is criminal and unacceptable.

25. That said Whittall is still young. If he continues to associate with criminals and drug dealers; if he continues to offend, both he and the community will suffer the consequences. If he is assisted and supervised in the community and engages in programs as directed he could turn his life around. He had work until the COVID -19 lock down. He has the capacity to put something back into the community by undertaking community service when the lock down is lifted.

26. He is a good candidate for an Intensive Corrections Order. While an Intensive Correction Order reflects a significant degree of leniency it still involves a substantial punishment that can meet the objects of sentencing. It is a sentence of imprisonment. It is not a light sentence.

27. Before an Intensive Corrections Order can be imposed community safety must be considered: Karout v R [2019] NSWCCA 253; Fangaloka v R [2019] NSWCCA 173. That obligation does not derogate from the general purposes of sentencing. Community safety is broad concept that can operate in different ways in different circumstances. Community safety is not achieved simply by locking someone up. Here, it can best be achieved by encouraging Whittall’s positive behavioural change: Pullen v R [2018] NSW CCA 26.

28. On arrest the offender was found with a small quantity (1.3grams) of cannabis. He has accepted his guilt for that crime and asked that I deal with it pursuant to s166 Criminal Procedure Act 1986. There should be conviction for that crime but no other punishment is required as Whittall is subject to Community Corrections supervision for both the earlier assault matter and now this matter.

Orders

29. Possess Prohibited Drug – cannabis s10(1) Drug Misuse and trafficking Act 1985: Convicted; no other penalty: s 10 A Crimes (Sentencing Procedure) Act 1999.

30. Intimidation, s 13(1) Crimes (Domestic and Personal Violence) Act 2007: Pursuant to the jury verdict - Convicted. Sentence: 1 year 6 months imprisonment to be served in the community subject to an Intensive Corrections Order to commence, 24 April 2020.

31. Conditions:

1. Be of good behaviour

2. Accept supervision and direction from Community Corrections and engage in supervision plan.

3. Complete 150 hours community service.

4. Report to Community Correction by telephone by 30 April 2020.

32. Sentence explained to offender. Order to be forwarded to offender by the District Court Registry.

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Decision last updated: 28 April 2020