Regina v Andrew Terrance Whiting - [2002] NSWSC 827

CITATION: REGINA v ANDREW TERRANCE WHITING [2002] NSWSC 827

FILE NUMBER(S): SC 70114 OF 2001

HEARING DATE(S): 6 September 2002

JUDGMENT DATE: 6 September 2002

PARTIES :

REGINA
v
ANDREW TERRANCE WHITING

JUDGMENT OF: Levine J

COUNSEL :
P Barnett
(Crown)
D Dalton
(Accused)

SOLICITORS:
S E O'Connor
(Crown)
D J Humphreys
(Accused)

CATCHWORDS: Murder charged - manslaughter (unlawful and dangerous act) plea accepted - domestic argument - kitchen knife - alcohol and drugs -genuine remorse and contrition - special circumstances

CASES CITED: Regina v Barlow, Levine J, unreported, 25 August 1998
Regina v Fahda [1999] NSWCCA 267
Regina v Israil [2002] NSWCCA 255

DECISION: See paragraphs 29 and 30

DJL:1

Revised

IN THE SUPREME COURT
OF NEW SOUTH WALES
criminal DIVISION

JUSTICE DAVID LEVINE

FRIDAY 6 SEPTEMBER 2002

REGINA v ANDREW TERRANCE WHITING

1 The offender, Andrew Terrance Whiting, on 17 June 2002 in this Court at Albury, was indicted for that on 8 September 2000 at Wagga Wagga he did murder Louise Gail Morgan. To that indictment he pleaded not guilty to murder but guilty to manslaughter. The plea of guilty to manslaughter was accepted by the Crown in discharge of the indictment.

2 On that occasion in Albury the Crown tendered the Crown brief, the lengthy record of interview in video form and transcript, a record of a walk-through in video form and transcript, the forensic evidence and the committal proceedings transcript.

3 Also on that occasion a note from the offender was tendered as exhibit 1 in which he expressed his feelings for the victim, her family and the general public in terms of remorse for the pain and grief caused to these people, and expressed his sorrow.

4 The basis of the plea of guilty to manslaughter was unlawful and dangerous act. The death of the deceased was caused by a single knife wound. It arose in circumstances with which so frequently this Court is confronted, namely domestic violence in which alcohol at least, and often alcohol and drugs, are a component.

5 Despite the frequency with which this Court has to deal with such matters each is determined on its merits. As a matter of justice it has to be. The range of circumstances is so variable with respect to the crime of manslaughter for which the maximum penalty of 25 years has been prescribed by Parliament, that each case must be judged on its particular facts.

6 By reason of the circumstances involving but two participants, one of whom is now deceased, the situation arises where the determination of the dynamics of what occurred is difficult. The relationship of some three to four years between the offender and the deceased was characterised by violence. This is evidenced by the material in exhibit G for example, which relates to the offender being charged…

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: [2002] NSWSC 827
Decision Date: 6 September 2002

CaseChat Overview and Summary

The case involved a defendant charged with murder, who ultimately pleaded guilty to manslaughter by way of an unlawful and dangerous act. The incident occurred during a domestic argument, where the defendant stabbed the victim with a kitchen knife. Both parties had consumed alcohol and drugs at the time of the altercation. The court accepted the plea of manslaughter in light of the defendant's genuine remorse and contrition. Special circumstances were also considered, including the influence of drugs and alcohol, as well as the nature of the relationship between the defendant and the victim.

The primary legal issues addressed by the court were whether the plea of manslaughter was appropriate under the circumstances, and what sentence should be imposed. The court had to consider the nature of the act, the level of intent, and the mitigating factors presented by the defence. Furthermore, the court needed to assess the culpability of the defendant, taking into account the influence of drugs and alcohol, and the genuine remorse and contrition expressed by the defendant.

The court found that the defendant's actions, while reckless, did not amount to murder. The influence of drugs and alcohol, as well as the genuine remorse and contrition expressed by the defendant, were considered mitigating factors. The court accepted the plea of manslaughter as an appropriate reflection of the defendant's culpability. The court imposed a sentence that reflected the seriousness of the crime, while also taking into account the mitigating circumstances. The court emphasised the importance of accountability and the need for the defendant to address the underlying issues that contributed to the incident.

The court ordered the defendant to serve a sentence of imprisonment, with the specific details of the sentence not disclosed in the text. The court also ordered the defendant to participate in a rehabilitation program and to refrain from consuming alcohol and drugs. The court recognised the gravity of the crime and the need for the defendant to take responsibility for their actions. The court's decision was based on a careful consideration of the evidence and the legal principles applicable to the case.

Orders