R v Whittall

Criminal Record

1. As at February 2019 Whittall had convictions for relatively minor matters. That record does not disentitle him to the leniency often given first offenders. But, he was on bail for an assault occasioning actual bodily harm offence committed on 10 November 2018. His breach of the promise inherent in any bail decision to be of good behaviour must be taken into account an aggravating factor on sentence.

Evidence on sentence

1. Whittall did not give evidence. Ms Ernst from Community Corrections has however provided a thorough and helpful Sentence Assessment Report; dated 16 April 2020.
2. Whittall was born in 1998. He reports a tumultuous childhood, which left him homeless at 13. This in turn impacted on his education and his socialisation skills. In recent years things have improved. He has commenced an apprenticeship and TAFE study. He now lives with his mother, his partner and their child. Until the COVID-19 lockdown he had a job.
3. Whittall still has no insight into his offending but he is amenable to intervention. A supervision plan is proposed that involves:

• Psychologist assessment and treatment.
• Attending the Equips Aggression programme.
• Alcohol and drug assessment and recommended treatment
• Practice guide interventions for impulsive behaviour, anger and stress management.

1. Community Service work is available but during the COVID-19 lockdown it will be suspended and he will be credited with 7 hours per week until work resumes.

Submissions

1. I am indebted to Mr Coulton, solicitor for the Director of Public Prosecutions and Mr Metcalfe, counsel for Whittall, for their comprehensive written and oral submissions. I hope this judgment does justice to them. Their primary focus was on what facts I could and would find proved. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determination as to the appropriate sentence.
2. Mr Metcalfe submits that this offence was toward the low end of the spectrum. I do not agree. The acts of these armed men in another's home could not meet that description.

Local Court disposition

1. Mr Metcalfe submits that, as the offender was found not guilty of a purely indictable offence the offence for sentence could have been dealt with in the Local Court. Accordingly, he submits that the court should sentence on the basis the reduced maximum penalty would apply in that jurisdiction: McCullough v R (2009) 194 A Crim R 439. The argument is theoretical as Local Court disposition was not a possibility as the intimidation charge was too interconnected with a solely indictable offence. This is not a matter that "ought to have remained in the Local Court:" Zreika v R [2012] NSWCCA 44 at [109].

Guidance

1. While every offence and every offender requires individualised treatment courts must, in the exercise of their undoubted discretion, take guidance from a number of sources. They include; the maximum penalty, here 5 years imprisonment; and the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.
2. There can be no reduction of the sentence for remorse, facilitation of the course of justice or a guilty plea - but the offender is not to be penalised for exercising his right to a trial by jury and he must have the full benefit of his acquittal.

Synthesis - an Intensive Corrections Order

1. Here the offence was so serious that only a custodial sentence could meet the purposes of sentencing. Victim vindication and recognition of the harm crimes such as this cause the community require it.
2. The offender still fails to understand how serious his actions were. Others in the community have to understand that to intimidate another in their home to enforce a debt is criminal and unacceptable.
3. That said Whittall is still young. If he continues to associate with criminals and drug dealers; if he continues to offend, both he and the community will suffer the consequences. If he is assisted and supervised in the community and engages in programs as directed he could turn his life around. He had work until the COVID -19 lock down. He has the capacity to put something back into the community by undertaking community service when the lock down is lifted.
4. He is a good candidate for an Intensive Corrections Order. While an Intensive Correction Order reflects a significant degree of leniency it still involves a substantial punishment that can meet the objects of sentencing. It is a sentence of imprisonment. It is not a light sentence.
5. Before an Intensive Corrections Order can be imposed community safety must be considered: Karout v R [2019] NSWCCA 253; Fangaloka v R [2019] NSWCCA 173. That obligation does not derogate from the general purposes of sentencing. Community safety is broad concept that can operate in different ways in different circumstances. Community safety is not achieved simply by locking someone up. Here, it can best be achieved by encouraging Whittall's positive behavioural change: Pullen v R [2018] NSW CCA 26.
6. On arrest the offender was found with a small quantity (1.3grams) of cannabis. He has accepted his guilt for that crime and asked that I deal with it pursuant to s166 Criminal Procedure Act 1986. There should be conviction for that crime but no other punishment is required as Whittall is subject to Community Corrections supervision for both the earlier assault matter and now this matter.

Orders

1. Possess Prohibited Drug - cannabis s10(1) Drug Misuse and trafficking Act 1985: Convicted; no other penalty: s 10 A Crimes (Sentencing Procedure) Act 1999.
2. Intimidation, s 13(1) Crimes (Domestic and Personal Violence) Act 2007: Pursuant to the jury verdict - Convicted. Sentence: 1 year 6 months imprisonment to be served in the community subject to an Intensive Corrections Order to commence, 24 April 2020.
3. Conditions: 1. Be of good behaviour 2. Accept supervision and direction from Community Corrections and engage in supervision plan. 3. Complete 150 hours community service. 4. Report to Community Correction by telephone by 30 April 2020.
4. Sentence explained to offender. Order to be forwarded to offender by the District Court Registry.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2020