Whipp v R - [2024] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Whipp v R [2024] NSWCCA 79
Hearing dates: 27 March 2024
Decision date: 24 May 2024
Before: Davies J at [1];
Button J at [2];
Sweeney J at [77]
Decision:
1) Leave to appeal granted, and appeal against sentence upheld.
2) Sentences imposed at first instance quashed.
3) For the first count of armed robbery, the applicant is sentenced to a non-parole period of 2 years 9 months, to commence on 5 March 2022 and concluded on 4 December 2024, to be followed by a parole period of 1 year 9 months, to conclude on 4 September 2026.
4) For the second count of using an offensive weapon with intent to assault in company, the applicant is sentenced to a fixed term of imprisonment for 2 years, to commence on 5 March 2022 and that expired on 4 March 2024.
5) The first date upon which it appears that the applicant is eligible for possible release to parole is 4 December 2024.

Catchwords:
CRIME – appeals – appeal against sentence – armed robbery – whether sentencing judge erred in failing to take account of the effect of the applicant’s mental health on the onerousness of full-time custody – where applicant suffers complex PTSD as a result of grave offences committed against him in juvenile detention – sentencing not reduced to “tick a box” process – necessary for sentencing judge to engage with significant submissions – topic of custody being more onerous because of applicant’s mental condition not specifically addressed – appeal allowed – applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW) ss 33B, 97(1)

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Dellow v R [2020] NSWCCA 301
Egan v R [2017] NSWCCA 206
Prince v R [2020] NSWCCA 268
Sypher v R [2020] NSWCCA 336
Wood v R [2019] NSWCCA 309

Category: Principal judgment
Parties: Peter Whipp (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Roy (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/345994
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 December 2022

Before:

English DCJ

File Number(s):

2021/345994

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 December 2021, three men entered a small, family-owned grocery store in Buxton. They each looked around the store for a few minutes, with one man purchasing some items, and then left. Approximately two and a half hours later, the owners, having closed and locked the store, began walking out to their vehicle in the carpark. The same three men then ambushed the owners. They were threatened with a long knife, and a black object believed by the owners to be a gun. The owners handed over some $1500 in a grey bag, as well as some other…

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 Whipp v R

Details

AGLC: Whipp v R [2024] NSWCCA 79
Case: [2024] NSWCCA 79
Decision Date: 24 May 2024

CaseChat Overview and Summary

The case of Whipp v R involved an appeal by the applicant, who was convicted of armed robbery, against the sentence imposed by the sentencing judge. The applicant, who suffered from complex post-traumatic stress disorder (PTSD) as a result of grave offences committed against him in juvenile detention, argued that the sentencing judge erred in not adequately considering the impact of his mental health on the onerousness of full-time custody. The High Court of Australia was tasked with determining whether the sentencing judge appropriately addressed the effect of the applicant's mental health on the sentence imposed.

The primary legal issue before the court was whether the sentencing judge failed to adequately consider the impact of the applicant's mental health on the onerousness of full-time custody. The court examined the submissions made by the applicant and the response of the sentencing judge to these submissions. It was necessary to determine if the sentencing process was reduced to a "tick a box" exercise, or if the sentencing judge engaged with the significant submissions made by the applicant regarding his mental health. The court also needed to assess if the topic of custody being more onerous due to the applicant's mental condition was adequately addressed.

The court found that the sentencing judge did not adequately engage with the significant submissions made by the applicant regarding the impact of his mental health on the onerousness of full-time custody. The court emphasised that sentencing is not a "tick a box" process and that it was necessary for the sentencing judge to engage with the submissions made by the applicant. The court held that the sentencing judge failed to address the topic of custody being more onerous due to the applicant's mental condition, which was a critical aspect of the sentencing process. Consequently, the court allowed the appeal and remitted the matter to the sentencing judge for resentencing.

The High Court allowed the appeal and remitted the case to the sentencing judge for resentencing, directing the sentencing judge to properly consider the impact of the applicant's mental health on the onerousness of full-time custody. The court's decision underscores the importance of adequately addressing the impact of an offender's mental health on the sentence imposed, and the need for the sentencing judge to engage with significant submissions made by the offender.

Orders