R v Whitfield

The matters for sentence

1. There are Agreed Facts before the Court. I sentence on the basis of those Agreed Facts. Whitfield gave a slightly different version of the events to his psychologist. However, it does not appear that the psychologist used that version of events in the formulation of her opinions; she was not simply recounting what she was told. I sentence on the basis of the Agreed Facts, not Whitfield's later reconstruction of events.
2. I note that he told his psychologist that at the relevant time he was affected by methylamphetamine and cannabis. Given what I know about methylamphetamine, that may account for his unreliable history. It needs to be stated that the fact the offending occurred while intoxicated with methylamphetamine not only does not mitigate, but may in fact have made him more dangerous and unpredictable.
3. The events for sentence started in August 2022 when his co-offender Sophie Strang had an argument with her former partner. On 30 August 2022 Strang, with the offender and another person, went to the former partner's home. They found him in the backyard working on a car. They entered the backyard. As they entered, the former partner and another resident noticed that Whitfield had a knife in his hand. He yelled at the former partner, demanding the keys to his car and calling him a "dog". The response was, "there's no need for all this, what's this all about?" That is the first count; Armed with Intent to Intimidate: Crimes Act 1900 (NSW), s 114(1)(a).
4. The knife being held by the offender connected with the former partner's forearm, causing a cut. That is Count 2, an offence of; Assault Occasioning Actual Bodily Harm: Crimes Act, s 59(2).
5. One of the residents in the home told him, "Oi, that's enough". Strang then asked the offender to "ease up. We are here for the car. Just get the keys". She then demanded the keys. There was then a bit of a standoff after the residents entered their home. At one stage the offender yelled, "Don't shut the door on me. Don't make me force my way in". Triple-0 was called. One of the residents pointed a broomstick through the window, threatening to "shoot" the intruders. Strang said, "He's got a shotty, fucking run". Strang, the offender, and the other woman fled and ran into the streets of Port Kembla.
6. At about that time a courier driver was making deliveries from his white van. He parked the van, leaving it running, as he went to make a delivery. He heard footsteps behind him and turned to see the offender running towards the van's driver's door. The offender looked at him, waved the knife and said, "I've got a knife". He then opened the driver's door. The driver dropped the package he was carrying and ran towards the van. The offender pulled himself into the driver's seat, with his left hand on the steering wheel and the knife in his right hand, outside the door, pointing it towards the driver.
7. The driver had the sense of mind to slam the van door shut on the offender's hand, causing him to drop the knife. The driver bent down and picked up the knife. The offender then pushed him away and ran off. The knife was recovered; it is a wooden handled butcher's knife. It would appear to fit the description given by the earlier victims. That is Count 3: Crimes Act, ss 154C(2) and 344A(1).
8. Police were called. They arrested Strang. The offender was seen to run into a nearby residential block.
9. Soon after, a man who lived in the block was asked by a neighbour if he could "babysit" her nephew. The homeowner thought that he would be babysitting a child, but the nephew was in fact, the offender. The offender sat with him for about 30 minutes. The man noticed Whitfield was "acting paranoid" and looking out the window. He said the "cops were after him". He was told to go.
10. At this point the offender became aggressive and said the man was "disrespecting" him and "did not understand his situation". He grabbed a screwdriver which was on the table and threatened the man. Fearful of the threats, the homeowner pushed him out of the way and left the unit. The offender then ran from the unit. That is Count 4: Crimes (Domestic and Personal Violence Act 2007 (NSW), s 13(1).
11. Later that afternoon police investigating the matter were given information about where the offender was. They saw him inside a unit block and asked him to come out; telling him he was under arrest. The officers tried to grab the offender and apply the handcuffs.
12. He pushed Constable Powell and ran past her. Police followed him but lost sight of him. These offences: Assault Police Officer in the Execution of Duty and Resist Officer in the Execution of Duty pursuant to ss 60(1) and 58 Crimes Act have been placed on a Form 1. I will take them into account when I impose the sentence for Count 4.
13. The offender was arrested later that afternoon and has been in custody since 31 August 2022.

Objective seriousness

1. I have the considerable advantage of comprehensive submissions by Mr Fraser, counsel for Mr Whitfield, and Ms Bird, solicitor for the Director of Public Prosecutions. They set out key matters that I must consider when I assess the objective seriousness of each of the offences. There is little between them. It is accepted that the matters for sentence, taking into account only objective factors, do not fall into the highest category nor the lowest. They each are matters that require individual consideration. It is accepted that they are all serious and all so serious that custodial sentences are justified.
2. Count 1 involved the use of a bladed weapon to resolve a grievance. The offender went with others to assist them and, it would appear, to provide some 'muscle'. His involvement in another person's dispute shows that he was prepared to take the law into his own hands. Given that all his life he has had a distrust for lawful authority, this is regrettable but understandable.
3. It is the use of the weapon at someone's home that is the most serious aspect of this matter. What he did was unnecessary; it is clear he did not think it through. He also wielded the weapon in a way that caused a relatively minor, and transient injury to the victim. This result was more a result of good luck than good management. The use of the weapon means this offence could not fall at the lower end of the range for assault occasioning actual bodily harm offences.
4. Count 3 was a desperate and impulsive act, but it involved interfering with a person going about his ordinary work, providing a valuable community service. The driver's actions prevented theft of his vehicle and its contents, something which was not intended but incidental to the desire of the offender to escape the scene.
5. It must have been a frightening and disturbing experience for the driver. A desperate man armed with a bladed weapon was trying to take something he needed for his livelihood, and the goods that he was delivering. He responded quickly and appropriately. The incident was of brief duration, but it is still a significant offence.
6. The offence is charged as an attempt, as obviously it did not succeed. The intent was just to get a vehicle to get away from the scene where the police had been called, not to steal the contents of the van. An offence's seriousness is often gauged by the consequences of the act. Those consequences were averted. Nevertheless, as an attempt it was, for reasons I have outlined, a particularly serious one but obviously it does not fall as high on the scale as a completed offence.
7. The intimidation offence reflected the offender's disdain for others. He was imposing himself on someone, trying to avoid detection by the police. He felt that he had been disrespected and he responded by the threats that he made and grabbing a weapon to hand. The person had offered to help him, and he responded by intimidating him. It was a spontaneous act and clearly, he did not use the weapon, other than to reinforce the threat. But the event occurred in the man's home, and he is entitled to the sanctity of his home. It was a serious example of its type.

Matters on a Form 1

1. There is a difference between the parties as to how I assess the Form 1 matters. Mr Fraser submits that had they occurred individually and been dealt with in the Local Court it is unlikely a custodial penalty would have been imposed for them. Madam Crown submits that the need to vindicate the police officers, given the context of the matter, might have led to a different result.
2. I do not sentence for those matters. I take them into account in accordance with the guideline. I have to consider personal deterrence and protection of the community: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42]. The need to ensure that offenders respect police officers is the critical matter, but the increase in the sentence to take into account those matters will be very modest.

Maximum and penalties

1. I must have regard to the Maximum penalties and where applicable standard non-parole periods. They are both guides to the exercise of my sentencing discretion.

• The maximum penalty for Armed with Intent to Commit an Offence is 7 years imprisonment: Crimes Act, s 114(1)(a).
• The maximum penalty for Assault Occasioning Actual Bodily Harm while in Company is 7 years imprisonment: Crimes Act, s 59(2).
• For Attempted Aggravated Armed Assault with Intent to Take Motor Vehicle without Consent (Carjacking) is 14 years imprisonment: Crimes Act, ss 154C(2) and 344A(1). A standard non-parole period does not apply for attempt offences.
• The maximum penalty for Intimidation is 5 years imprisonment: Crimes (Domestic and Personal Violence) Act, s 13(1). That maximum applies here, but I note that had the matter been charged individually, the matter would have been dealt with in the Local Court and not been committed to this Court. The matters on the Form 1 attach to this count.

Starting date

1. I note Whitfield was on bail for a period after 31 August 2022; his date of arrest. The non-parole period of the sentence he served during that period expired, on 16 September 2022. I start my calculations from that date, but I must take into account the 19 days he spent in the community after he had been released to bail late last year. The starting date of the sentence will therefore be, 6 October 2022.
2. I note I had previously refused him bail twice. Another judge gave him bail so he could go to the respected rehabilitation centre - Oolong House. He failed to attend that centre. I do not punish him failure, but it does indicate that, as do his breaches of parole, repeated non-compliance with court orders. His prospects for the future must be reviewed and assessed in the light of repeated failures to comply with court orders or directions of authority figures; matters which I will come to in a moment.
3. That does not mean that the effort should not be made in the future to allow Whitfield the chance to prove himself in the community, but any assessment has to take into account his earlier failures.
4. Whitfield's criminal record does not entitle him to leniency. Rather, it means that greater and particular weight needs to be given to issues relating to community protection. But the community, while it can be protected from a person while they are in custody, will not be protected if that person continues to reoffend when they are released.
5. The sentences I intend to impose will give full weight to the mitigating factors to which I will now refer, my assessment of the objective seriousness, and the need to moderate the penalties because of the offender's background.

Parity

1. I must also take into account the sentence imposed upon the co-offender for Count 1. The penalty imposed upon her after a 25% reduction was 1 year and 3 months - a starting point of 1 year and 8 months. Principles of parity reflect the need for equal justice and no offender should feel that they have been treated more or less severely than those involved in the same criminal enterprise: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Here there were reasons to distinguish one from the other. The charge against her was slightly different. Their backgrounds are different. Their motivation was slightly different.

Subjective case

1. The report of Ms Grujoska, psychologist, is comprehensive and sets out the offender's history, which I have set out in my earlier judgment: R v Flanagan; R v Brennan (a pseudonym). The only issue of difference between the two is that there was evidence before me on the last occasion of an intellectual disability. That was not picked up by Ms Grujoska. There is, in the custodial record, a report that it may have been investigated and nothing further came of it.
2. The offender's parents were drug users who were in and out of gaol. He had none of the advantages that most in our community expect children will receive. The police were often involved with his family. He was placed with foster parents but that did not work out. He was ultimately placed with his grandparents. But they were too old to provide him with appropriate discipline. He spent a lot of his childhood in juvenile detention and there are indications that while there, he was subject to sexual abuse, and that recent investigations are showing, was all too common.
3. Not at all surprisingly, he suffers from anxiety and has a distrust of authority figures. He spent some time at the Flametree School. He completed his Year 10 while in juvenile detention. He has never held a job.
4. In his short time in the community has had two partners, one of whom is present today. He has a child, and he has never been in a position to care for that child.
5. Ms Grujoska, applying her experience, to information from other reports, and from her testing, indicated that he suffers from Attention Deficit Hyperactivity Disorder, Bipolar Disorder, Oppositional Defiance Disorder, Borderline Personality Disorder and Schizophrenia. Schizophrenia and Bipolar are indicated in his rapid mood shifts, and the fact that he is irritable and anxious. He is medicated but his illicit drug use in the community means he is more often than not, non-compliant with that medication.
6. Whitfield has been using illicit drugs since he was ten years old. Ms Grujoska (at par [23]) forms the view that "he has an extremely high dependence on [methylamphetamine] and cannabis" and that continues "despite his current abstinence". She believes he has a Substance Use Disorder. The paramount consideration for his future prospects must initially be to address that disorder; because if he cannot get his illicit drug use under control, he will not be able to do anything else, so far as improving his mental health is concerned. If these concerns are not addressed, he will never learn how to adapt to normal community life.
7. In Ms Grujovska's opinion, his multiple conditions, his Substance Use Disorder and the multiple traumas that he has suffered since, effectively, he was born, have led to a Complex Post-Traumatic Stress Disorder and, as a consequence, he is functionally impaired. This may account for why that impairment was initially reported to me as an intellectual disability. In her opinion, while in gaol he will need to attend the RUSH and IDAPT programs. In the community he will need cognitive behaviour therapy, a mental health care plan, victim's counselling and participation in the IDAPT reintegration program. He will need stable housing. He will need assistance in learning how to get a job and keep a job.
8. Whitfield's current partner provided a letter of support. She speaks highly of him, and she asks that he be given one more chance. She promises to provide stability to him and indicates that in his time in the community he has been good to her and her children.
9. Ms Grujoska spells out in her report the dilemma facing anyone dealing with the offender. While he said to her (at par [21]), "I wish I never done it" and asks for another chance, the best that she can say is "he is open to accessing all relevant programs that he needs". She says, "he feels motivated to be better and is committed to maintaining his abstinence". But, as her report notes, given his high level of drug dependence, that may be a particular problem. She notes he fits the criteria for a Severe Substance Use Disorder.
10. She cautions at par [32]: "that although custodial treatment is available … the effects of continued incarceration … will impact on his ability to access appropriate support services required for his mental health … Limited access to services and extended time of incarceration [can only] exacerbate Mr Whitfield's mental health issues and … hinder appropriate rehabilitation and recovery. These factors [can] lead to [him being further isolated] and risk … institutionalisation … [he may] not have [as a consequence] the appropriate skills to function in the community when released."
11. She concludes, "community-based support services would be deemed more beneficial for him as a means of intensive intervention". Given the history now before me and noting the matters I dealt with in 2019, that conclusion is inescapable. The offender needs intensive intervention to deal with multiple problems brought about by multiple traumas and mental illness.

Moral culpability

1. It is clear that Whitfield cannot, and should not, be assessed as someone who did not have those multiple disadvantages. His moral culpability for his offending is significantly reduced because of those matters. He is not, despite the seriousness of his offending, to be treated in the same way as someone without them, and the principles relating to general deterrence, while they still have some relevance, cannot be applied fully: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
2. The need for personal deterrence is still relevant. He has to understand that if he continues to behave this way and not take assistance offered by his partner and others, the only choice available to sentencing courts will be longer and longer terms in custody. But that will only come about if he has committed further crimes against members of the community. The community is not as forgiving as some offenders might think. When people offend, no matter what their background, against multiple members of the community, most say punish them, in the hope they will learn from that punishment.
3. A more nuanced approach is required here. A degree of leniency is required here. Even though Whitfield breached his parole on the last occasion I will make a finding of special circumstances. Despite his entrenched recidivism the effort has to be made. There are some glimmers that as he is getting older and maturing, he has some motivation to change. The sentence should not destroy those prospects. A lengthy sentence might induce a feeling of hopelessness and destroy any expectation of useful life after release: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301. A sense of hopelessness might destroy his prospects for rehabilitation; and they are not good. He has the motivation, but many underlying problems have to be addressed.
4. The sentence must be proportionate to his offending. I cannot keep him in custody while he completes necessary programs, nor can I order that programs be made available to him. I am saddened by the fact that he has not engaged in rehabilitation during the lengthy time he has been on remand.
5. These problems are, in a sense, intractable. But the answer is not - longer incarceration - it lies in actions designed to reverse the effects of the matters that have had an impact on him since, effectively, birth.

Imposition of an Intensive Correction Order?

1. Mr Fraser suggested I adopt a novel approach that might facilitate the offender's rehabilitation. He said rather than impose an aggregate sentence, I could make them separate and partially concurrent and cumulative. The last sentence in sequence could then be served subject to intensive correction in the community. When last released to parole, whatever services were provided were insufficient to keep the offender on the straight and narrow. If the last in a series were subject to the intensive supervision, her suggests, Whitfield might get the assistance he needs to deal with his underlying drug problem and learn how to lead a life in the community and.
2. Programs available through the Drug Court might provide necessary support and services. But I note, not for the first time, that the Drug Court programs are not available to people in the Illawarra.
3. At present, I have nothing other his partner's offer of accommodation and support to give me any confidence that a comprehensive drug rehabilitation program addressing his significant Substance Use Disorder could be put in place as part of an Intensive Correction Order. Nor is there any material before me to indicate how he is to receive the assistance he so sorely needs for his underlying mental health problems and the impact of the multiple traumas upon him. There is no evidence before me as to the security of any accommodation, nor is there, in his life to date, any history that he has a capacity to work either in custody or in the community.
4. The resources should be made available to him. They would cost significantly less than keeping him in gaol, but there is no evidence before me as to what programs could be put in place other than those to which I was referred by Ms Grujoska.
5. Community safety is the paramount concern when it comes to considering an Intensive Correction Order. In the absence of any material that would enable me to be satisfied community safety could be met by his release to an Intensive Correction Order today, or in the very near future, I could not entertain Mr Fraser's suggestion.
6. Accordingly, I will impose an aggregate sentence.

Synthesis

1. Although effectively I am sentencing for one continuous incident there were separate and distinct crimes committed with different victims. There must be accumulation between each of the matters to reflect the totality of the offending and vindicate the dignity of each of the individual victims.
2. An appropriate aggregate sentence would rule out consideration of an Intensive Correction Order because the sentence here must be more than 3 years. A principled approach requires the length of the sentence must be determined first. Whitfield will have the benefit of significant concurrence between the counts. He will have the benefit of a finding of special circumstances, for the reasons I have outlined. I have sought to fix his non-parole period to the very minimum that is required to meet the objective seriousness of the crimes he committed. I have sought to extend as much leniency as I can.
3. That does not mean I do not take into account all relevant factors. I have applied the Bugmy and Fernando principles; they favour mitigation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Fernando (1992) 76 A Crim R 58
4. . But the Court also has to recognise in a matter such as this, where multiple offences were committed against a number of members of the community, that there are countervailing factors which still must be taken into account, including victim vindication and protection of the community.
5. Returning to protection of the community. Protection of the community can be achieved by keeping Mr Whitfield in custody, but he cannot be held in custody longer than his offences' seriousness demand. He has to be released into the community. If he is given the support and resources that he so desperately needs, then the community will be protected. If he is not given them, if he is kept in custody until he serves the entirety of the sentence, I impose without resources being made available to him, then the community will not be protected. He will, as Ms Grujoska says, be released in a worse position than when he went in. The Court's ultimate aim is to prevent that happening because we want to prevent him committing crimes against others as he has done so often in the past.

Orders

1. In relation to each matter, you are convicted. Each indicated sentence takes into account the 10% reduction for the utilitarian value of the guilty plea. I note a finding of special circumstances.
2. I indicate the following sentences:

• In relation to Count 1: I indicate a sentence of 1 year and 6 months.
• In relation to Count 2: I indicate a sentence of 1 year and 4 months.
• In relation to Count 3: I indicate a sentence of 2 years and 8 months.
• In relation to Count 4, taking into account matters on the Form 1: I indicate a sentence of 11 months.

1. The aggregate sentence will be 3 years and 6 months. It will commence on 6 October 2022. The non-parole period will be 2 years and 2 months' imprisonment. That non-parole period will expire on 6 December 2024. The balance of the sentence, 1 year and 4 months, will commence on 7 December 2024 and the whole sentence will expire on 6 April 2026.
2. Release to parole on 6 December 2024 will be subject to an order of the State Parole Authority. They will not release the offender unless matters relating to community safety can be addressed. I would urge them to set in place a program and procedures to ensure that this can be done on 6 December 2024.

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