Regina v Whitmore

[2003] NSWSC 710

CITATION:	Regina v Whitmore [2003] NSWSC 710
HEARING DATE(S):	04/08/03
JUDGMENT DATE:	5 August 2003
JUDGMENT OF:	Whealy J at 1
DECISION:	Sentenced to a term of 18 months imprisonment. Set a non-parole period of 11 months which is to be taken to have commenced on 5 June 2003 and is to expire on 4 May 2004. Direct that the offender be released on parole on 4 May 2004. That day is the earliest day on which the offender will become entitled to be released from custody. Recommend that the conditions of parole are to include conditions as to supervision and that as part of the supervision the offender be required to accept the direction of Probation & Parole Service in relation to receiving continued psychological counselling including anger management. Further that he be directed and counselled as to his involvement in gambling during any period of parole, if such counselling be available at that time.
CATCHWORDS:	Plea of guilty to assault occasioning actual bodily harm while in the company of other persons
LEGISLATION CITED:	Crimes Act 1990 (NSW) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce v R (1998) 194 CLR 610 Regina v Gallagher (1991) 23 NSWLR 220 at 228 and 230
PARTIES :	Regina v Michael John Whitmore
FILE NUMBER(S):	SC 70105/02
COUNSEL:	Ms L. Wells - Crown Mr K. Gilson - Offender
SOLICITORS:	NSW Director of Public Prosecutions D.H. Cohen & Co

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

WHEALY J

TUESDAY 5 August 2003

70105/02 - REGINA v Michael John WHITMORE

SENTENCE

1 HIS HONOUR: On 4 August 2003 Michael John Whitmore (“the offender”) was indicted before me on a charge that on 25 January 2002, at Cartwright, in the State of New South Wales, he did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him, while in the company of other persons.

2 A person convicted of an offence under s 59(2) of the Crimes Act 1900 (NSW) is liable to imprisonment for seven years, that is to say the maximum penalty is imprisonment for seven years.

3 At the outset I shall state the facts I have found in connection with the offence. On the evening of 25 January 2002 the offender was at home with his de facto partner and other friends and family. At about a quarter to ten that evening he set out with a young friend whom I shall refer to as K R G to head in the direction of the nearby suburb of Miller. His stated purpose was to collect some money owed to him by a person who lived in Willan Drive. The offender collected the money owed to him and while he was at this house he met up with a number of other people he knew. These included Danny Avakian and Jimmy O’Connor. The group then set off to the bottle shop at the Miller Hotel where some alcohol was purchased from the bottle department.

4 The four of them that is, the offender, Avakian, O’Connor and K R G made their way down towards a position behind Bendigo Place at Cartwright. They came upon Wayne Anthony Myers (to whom I shall refer as “the deceased”) and three other people. They were sitting in the gutter waiting for a taxi. The persons there included the deceased, Gabby Paleaae, Melissa Lloyd and Garry McCormack.

5 According to the offender, Danny Avakian said to the others “He’s one of these who have been standing over me brother for phones”. It appears that Avakian was referring to the deceased when he said this. At Avakian’s suggestion, the four men jumped the fence and approached the group sitting in the gutter. Avakian said to the deceased “What’s your name?” The deceased said his name was Wayne Myers. Avakian then said “Are you prepared to die tonight?” he then pulled out mobile phone. He was holding the phone pretending it was a gun. At that point the girls who had been sitting in the gutter expressed dismay at the developing scene and ran off.

6 The deceased said to Avakian “You have got the wrong bloke”. At that point, O’Connor told the deceased to get down on his knees. The deceased was surrounded by the four assailants in the following order: O’Connor was standing behind him. Avakian was standing immediately in front of him, K R G was standing on his right side and the offender was standing on his left hand side. O’Connor started slapping him in the back and on the head and then hit him in the head. The deceased was still on his knees while this was happening. Then O’Connor punched him in the front of the face. K R G kneed him in the head. The offender said he himself backhanded the deceased and then K R G kneed him after this.

7 At least so far as the offender was concerned an event then happened that was quite unexpected. Before referring to this unexpected event, it is necessary to say that I am satisfied beyond reasonable doubt having regard no only to the statement of the offender but to other evidence referred to in the Crown case summary that as part of this concerted attack upon him, the deceased was punched, kicked and kneed by various members of the group. I am not satisfied beyond reasonable doubt that any of the young men took turns to jump on the deceased’s head. The medical evidence establishes a number of objective facts namely, that the deceased had multiple bruising accompanied by abrasions to his face, head, shoulders, back and torso. There were lacerations swelling and bruising on his face and scalp. The only fracture sustained was to his nose. These injuries are consistent with the scenario I have described. I accept beyond reasonable doubt that the offender’s involvement in the assault was as I have described it and no further.

8 What happened next was that the deceased was stabbed with a knife. It was this wound that led to his death. Post-mortem examination revealed that the deceased died from a stab wound to the chest. This had a wound track estimated between five to ten centimetres in length. The effect of the knife thrust was to cut the anterior wall of the pericardiam and to penetrate and cut the anterior wall of the pulmonary outflow track and valve. The post-mortem also revealed a second stab wound to the deceased’s back. This entry wound was above the right buttock and the wound track was from six to seven centimetres deep. I should interrupt the narrative of facts to say that the three other assailants have been charged in connection with the death of the deceased. It is intended at the trial of the remaining three accused, that is, Avakian, O’Connor and K R G that the offender will give evidence of the events he saw on that evening. His evidence which is contained in the ERISP conducted with him on 30 January 2002 and confirmed by his statement signed on the same day is to this effect: -

“And then he’s jumped up and Danny’s grabbed him and as Danny’s grabbed him he’s gone, where you runnin? And he’s put the knife into him as he’s grabbed him”.

9 In his record of interview, the offender said he had no idea that Avakian had a knife until he produced it just before the stabbing. He said he saw the knife go into the deceased’s chest that is on the left side of his chest near the breast. At that stage the offender, to use his own expression, “took off” and jumped the fence to run away.

10 So far as his own striking of the deceased was concerned he was asked why he did it. He said “I dunno, I was, I dunno, I was stupid, they were doing it, I thought, I dunno”.

11 I accept that the offender had in no way planned to take part in a joint assault upon the deceased that evening until the group in fact came upon the deceased at the scene of the assault. I accept further that the offender called out to his aunt to ring an ambulance when he saw what had happened. It seems the others, as they were running away, cautioned the offender against saying anything and advised him to say that he was not there at the scene on that evening. They said to him “You didn’t see nothing”. In the event, the offender ran back to his home at Sadlier. Several days later on 30 January 2002 he came of his own accord to the police station and submitted to an interview. Following the preliminary interview he took part in a ERISP which records a number of the details to which I have already made reference. He indicated his willingness to give evidence in the event that charges were brought against the other young men involved in the assault. He expressed contrition and sorrow for the death of the deceased. He has, on 4 August 2003 signed an undertaking to give evidence.

12 Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take into account a number of matters which are described in the section as aggravating factors and also to consider a number of mitigating factors (see s 21A sub-s 2 and 3). The list is not exhaustive but those matters are required to be considered so that the Court may comprehend and explain the relative seriousness of the offence. In this case the offence necessarily involved the actual use of violence and was committed in company. It occurred in a public street in a well-populated suburb of outer Sydney. On the other hand, the offence was not part of planned or organised criminal activity and occurred in a relatively spontaneous fashion without any real degree of premeditation.

13 It is accepted both by the Crown and the offender that, although the offender falls to be punished on the basis that his particular physical involvement in the series of assaults upon the deceased was comparatively limited, as I have described, the assault generally took place on a joint enterprise basis. Although the assault occurred within a reasonably short frame of time, the offender would have well known that he was taking part in what became, prior to the stabbing, a quite serious and vicious assault upon an apparently defenceless man. Moreover, having regard to the number of persons involved in the assault, it was a cowardly assault. It has not been proved beyond reasonable doubt that the offender’s own actions went beyond the backhanders he administered to the deceased’s person but it was certainly the case that the offender would have been and was well aware that the deceased was being punched, kicked and kneed in a quite brutal manner.

14 I turn now to consider the subjective circumstances of the offender. In dealing with these matters I shall of course take into account such mitigating factors as are relevant, as I am required to do under s 21A. I shall also have regard to s 22 of the Crimes (Sentencing Procedure) Act which requires the Court to take a guilty plea into account when passing sentence on an offender. Further, in this case it is necessary to have regard to the provisions of s 23 of the Crimes (Sentencing Procedure) Act and to the considerations set out in that section in relation to the Court’s power to reduce penalties for assistance provided to enforcement authorities.

15 The starting point is to recognise the youth of the offender. He is at the present time 20 years of age. He was born on 23 July 1983. The crime to which he has pleaded guilty was committed by him when he was 19. His immaturity at the time is a matter which properly impacts upon the level of criminality involved.

16 The offender is the fifth eldest child in a family of fifteen children. Exhibit 1 is a pre-sentence report from the Probation and Parole Service. It indicates that the offender has a very strong and supportive relationship with his parents and his siblings and that they are very involved in his life. He has been in a relationship with a young woman for about five and a half years. There are two young children under the age of three from this union. The offender left High School in Year 8 at age 14. In 2001 he attended the Hub Tertiary Studies held at TAFE and the local community centre where he studied Literacy, English and creative writing skills. It appears that he has had a variety of labouring jobs for short periods of time. This work has on occasions been obtained through his uncle who owns a bricklaying business.

17 The pre-sentence report concludes that the offender would be assisted by supervision within the Probation and Parole Service. Such supervision would focus on and may include participation in psychological assessments and referrals to any services deemed appropriate. The offender was assessed as unsuitable for a Community Service Order and the Service was unable to assess him for Periodic Detention.

18 The offender’s criminal history does him little credit. There is a litany of offences between 1998 and the present time. A number of them relate to matters before the Children’s Court over a number of years including offences of break enter and steal, robbery, resist police, malicious damage, all of which on 11 July 2000 resulted in a Probation Order for 12 months. In the Liverpool Local Court in November 2000 the offender was placed on a s 9 Bond for two years. This related to a number of serious driving offences. In fact the present offence occurred while the offender was subject to this bond although it is to be noted that the present offence is not of a similar kind to the offences which led to the imposition of the bond in November 2000. There is no real need for me to outline all of the charges in the criminal history but it is relevant to note that the offender was charged with detain for advantage without causing injury to victim and common assault in 2001. He was released on bail in relation to those charges and was in fact on bail in relation to these matters when the subject offence was committed. In relation to the charge of “detain for advantage” Judge Armitage in the District Court at Sydney imposed sentence on the offender on 1 October 2002. There was a head sentence of two years commencing on 7 September 2002 and expiring on 6 September 2004. His Honour set a non-parole period of one year to expire on 6 September 2003. The offender, as a consequence of Judge Armitage’s orders. has been in custody, as I understand it, since his arrest on 30 January 2002.

19 In connection with the factual matters I have recited in relation to the offender’s custodial situation, Mr Gilson who appeared on his behalf and made submissions on sentence argued that in imposing a sentence for the present offence, the court should have regard to the principle in Pearce v R (1998) 194 CLR 610. The point at issue here is that the offender admitted his guilt a matter of days after the offence. On the assumption that at the time he was dealt with by Judge Armitage in the District Court, the court had then been able to deal with a plea of guilty to the present charge under s 59(2) of the Crimes Act, his Honour would have been entitled to and in fact obliged to structure the sentences so as to reflect the total criminality of the crimes committed. It is of course the duty of a sentencing court when sentencing for more than one offence to generally fix an appropriate sentence for each offence and then determine whether to structure the sentences to be achieved concurrently or cumulatively or partly so, in order to arrive at the appropriate total sentence so as to reflect the overall criminality before the court.

20 Mr Gilson’s submission is that the court should take into account these principles in the present circumstances. This has the consequence that the sentence for the subject offence, if it is to commence at the expiration of the current non-parole period, (that is, on 7 September 2003), should be appropriately shortened; or alternatively, the sentence should be back dated some months to reflect in the offender’s favour the consequences of the application of the totality principle.

21 It is appropriate to record that the Crown does not dispute the general thrust of this submission.

22 Mr Gilson’s next area of submission examined the need to give the offender a discount for both the guilty plea and the assistance he has given and proposes to give to authorities. As I have already indicated, the offender expressed remorse and contrition at the time he participated in the ERISP on 30 January 2002. I accept that is still his attitude. It is common ground between the Crown and Mr Gilson that the practical proposition that the offender should plead guilty to a proposed charge under s 59(2) of the Crimes Act emerged in discussions with the Crown for the first time last week. The offender has at all times been willing to enter a plea to such a charge and in fact did so, in practical terms, at the very earliest opportunity.

23 In relation to the reduction of penalty under s 23 of the Crimes (Sentencing Procedure) Act for assistance it is necessary for the court to have regard to the matters specified in sub-s 2 of s 23. I have had regard to each of the matters contained in the sub-section but I consider that the following require specific mention. First, there can be no doubt that the offender’s assistance to the authorities is likely to be significant in relation to the outstanding murder charges. None of the witnesses to the tragic incident which caused the death of the deceased were able to identify the person who inflicted the fatal stab wound. The evidence that the offender has undertaken to give at the trial of the persons charged with the murder cannot be viewed in any other way as both significant and useful. It is true as the Crown submitted that it would be too forceful to say that the Crown could not prove its case on the murder charges without the evidence of the offender. On the other hand, that evidence assists to identify the person responsible for the infliction of the fatal wound and fleshes out the nature of the joint criminal enterprise as well as providing evidence of relevant statements made during and after the commission of the offence.

24 Secondly, so far as I can gauge from listening to the offender and reading the ERISP it seems to me that the evidence is capable of being regarded as reliable evidence. Of course, during the course of the trial, it will be necessary to give the appropriate warnings to the jury and it will be a matter for the jury to determine in the ultimate the reliability of the offender’s evidence. But in so far as I have to make a judgment in relation to that aspect of the matter, I consider that the evidence appears to me to be properly categorised as truthful and reliable. Thirdly, the offender offered to assist at the earliest possible time namely, the 30 January 2002. Fourthly, it is necessary to refer to the brief evidence given by the offender on 4 August 2003. He said that he had been in the Lithgow Correctional Centre for a period of eight months. He had been for part of that time in the general population of the prison community. However, he received information that others were threatening his safety and at his request he was put on protection about four months ago. He has remained in protection ever since and, whatever custodial sentence is imposed upon him in relation to the subject offence, he is likely to remain in protection while serving his sentence to its end. In practical terms protection means that he must spend 23 hours a day by himself. He is locked in his cell and showers in his cell. He has no communication with anyone except in the most formal way with prison guards. He has one hour a day’s recreation outside his cell. Although he has a large extended family he has had no visitors in the last four months. Moreover, after his release from custody he accepts that he will have to take his wife and children and relocate away from the Sydney area. This will be a significant burden on him as he will be divorced from his wider family because of this relocation. This is likely to impact not only on the offender but on his family as well.

25 Finally, I am required to consider the likelihood whether the offender will commit further offences after release. The offender’s criminal history gives me little encouragement but I think it is fair to say, as Mr Gilson submitted that the offender is very much at the crossroads of his life. Although it will be difficult for him, he will have every opportunity and every prospect after relocation to start a new life free from criminal activity. In any event, I do not think that, although I am pessimistic about his prospects, this consideration should disentitle the offender from a reasonable discount for the assistance he has given and proposes to give to the authorities.

26 I do not agree with the submissions of counsel for the offender, however, that it is necessary in every case or even desirable to specify in precise mathematical terms a discrete value for the discount that is to be afforded for each of the considerations that are likely to attract a discount. For example, in the present case there is no doubt that the offender has shown contrition. There is no doubt also that his guilty plea reinforces contrition, provides a utilitarian value and facilitates the course of the administration of justice. So also his willingness to co-operate with the authorities and the danger to which he thereby exposes himself, and for that matter his family, are related considerations. In my view, the better view is to state, as I do on all the facts and circumstances of this case, that the offender is entitled to a discount for his plea, the element of contrition in it and the recognition it imports on the offender’s part to assist and facilitate the proper course of justice. There is, as well, its utilitarian value. Moreover, the offender is entitled to a reduction in his penalty to reflect the level of assistance provided and to be provided to law enforcement authorities and this is so particularly having regard to the specific matters which I have found in that regard. The discount and reduction in penalty are appropriately to be expressed in one figure in my view in the light of the overlapping nature of these considerations (Regina v Gallagher (1991) 23 NSWLR 220 at 228 and 230). I propose to allow an overall discount of 50%.

27 What then is an appropriate sentence to be imposed on the offender in the circumstances of the present matter? It is necessary to bear in mind the purpose of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. In the present case the penalty must be such as to adequately punish the offender for the offence. It must act as a deterrent not only for the offender but for other persons from committing similar offences. Acts of violence in the streets of Sydney and its suburbs are to be deplored and denounced by the sentencing process. This is particularly so in circumstances where one person is set upon by, in effect, a gang of young men intent upon doing violence in a brutal manner. It is also necessary to encourage rehabilitation and reform.

28 I have considered all of the options for sentencing in the present matter. I have come to the conclusion, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in the present matter. General deterrence is an important aspect of the sentencing process in crimes of the kind to which the offender has pleaded guilty. The circumstances of the present offence reinforce the powerful need there exists to ensure that the principle of general deterrence is not devalued by the sentencing process. In some respects the offender’s subjective circumstances are in his favour particularly his youth and the circumstances in which he may have been led by others to be a participant in the assault on the deceased. These considerations however are outweighed by the need for a sentence which appropriately reflects the aspect of general deterrence.

29 Mr Gilson has provided the Court with a brief reference to statistics in relation to offences of the subject kind. The relevant group of statistics do not however, extend to sentences available to be examined for assault occasioning actual bodily harm in company. Nevertheless, the statistics for the lesser offence provide, in comparable cases, a range in which the mid-level appears to be in the vicinity of two years head sentence with a one year non-parole period.

30 In my view an appropriate sentence in the circumstances of the present matter which will reflect the various considerations I have mentioned is an overall sentence of three years imprisonment. I propose however to discount the sentence as I have indicated by 50% to reflect the value of the guilty plea to the charge and the level of assistance to law enforcement authorities. The sentence so discounted will be for a term of 18 months.

31 I propose to set a non-parole period. In my view there is ample evidence to justify special circumstances in the present case. First, there is the youth of the offender. Secondly, there is the fact that he would plainly benefit from a lengthy period of parole supervision with appropriate counselling, both generally and for anger management, and a continuance of treatment to assist in his continued abstention from his gambling addiction. Thirdly, there is the fact that his sentence will be served in protection and, for that reason, will entail particular hardship. I propose to back date the sentence to take into account the totality principles I have identified. In my view, a relatively short period of back dating will be sufficient to recognise the overall criminality involved in the offences dealt with by Judge Armitage in the District Court and the present offence. The sentence will be backdated two months to commence on 5 June 2003.

32 Michael John Whitmore, I sentence you to a term of 18 months imprisonment. I set a non-parole period of 11 months which is to be taken to have commenced on 5 June 2003 and is to expire on 4 May 2004.

33 I direct that the offender be released on parole on 4 May 2004. That day is the earliest day on which the offender will become entitled to be released from custody.

34 I recommend that the conditions of parole are to include conditions as to supervision and that as part of the supervision the offender be required to accept the direction of Probation and Parole Service in relation to receiving continued psychological counselling including anger management. Further, that he be directed and counselled as to his involvement in gambling during any period of parole, if such counselling be available at that time.

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Last Modified: 08/18/2003