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

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.
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

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.
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.
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:

A merciful verdict.

A doubt as…

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 Whittall

Details

AGLC: R v Whittall [2020] NSWDC 146
Case: [2020] NSWDC 146
Decision Date: 24 April 2020

CaseChat Overview and Summary

The case of R v Whittall involved the defendant, Whittall, who faced sentencing after being found guilty of intimidation following a trial. The court was required to determine the appropriate sentence for the offence, taking into account various factors. The legal issues included assessing the nature and circumstances of the offence, the defendant's background, and the potential impact of different sentencing options on community safety. The court also considered the fact that Whittall was in the company of others during the offence, armed himself, and the doubt surrounding the nature of the weapon used. Additionally, the court evaluated the possibility of a Local Court disposition and the need to give full effect to Whittall's acquittal on a more serious count.

The court reasoned that an intensive correctional order would best serve community safety while also addressing Whittall's disadvantaged background and limited criminal record. It noted that Whittall was on bail at the time of sentencing and that a full-time custodial order might not be the most appropriate response. The court acknowledged the enforcement of a drug crime debt as part of the circumstances of the offence but ultimately concluded that an intensive correctional order would provide the necessary rehabilitation and supervision. The court determined that this sentence would adequately address the offence's seriousness, the need for deterrence, and the offender's potential for rehabilitation.

In light of the court's reasoning, the final orders mandated that Whittall's full-time custodial sentence be served by way of an intensive correctional order. This decision reflects the court's consideration of all relevant factors and its aim to balance the need for punishment, deterrence, and rehabilitation in accordance with the circumstances of the case.

Orders

Orders of the court

Full time custodial order to be served by way of an intensive correctional order: For orders see [30]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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