REGINA v WHITFIELD

Supreme Court of NSW|2001-10-05|Before: Adams J, Dowd J

CITATION : REGINA v WHITFIELD [2001] NSWSC 876 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70053/00 HEARING DATE(S) : 19/4/01, 20/4/01, 23/4/01, 24/4/01, 26/4/01, 27/4/01,30/4/01, 1/5/01, 27/7/01 JUDGMENT DATE : 5 October 2001

Jonathon Troy Whitfield JUDGMENT OF : Adams J at 1

COUNSEL : Ms Laura K Wells (Crown) Mr Anthony I Parker (Offender) S E O'Connor (Crown) SOLICITORS : Legal Aid Commission of New South Wales (Meredith Phelps/Margaret Wall) (Offender) CATCHWORDS : Sentence - murder - home invasion - youthful offender - Victim Impact Statements - relevance R v Fernando (1992) 76 A Crim R 58 at 62 ff R v Russell (unreported) NSWCCA 15 December 1995 CASES CITED : Neal v The Queen (1982) 149 CLR 305 R v Previtera (1997) A Crim R 76 at 85 ff Veen v The Queen (No 2) (1988) 164 CLR 465 DECISION : Sentenced to a term of imprisonment of twenty years commencing 16 January 1999. The earliest date upon which eligibility for parole may be considered is 15 January 2012.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 5 OCTOBER 2001 70053/00 REGINA v JONATHON TROY WHITFIELD JUDGMENT

1 HIS HONOUR: Jonathon Troy Whitfield was convicted on 1 May 2001 of the murder of Ralph Mason on 11 January 1999. The murder occurred shortly after midnight in Mr Mason's home in Berkeley Road in a suburb of Wollongong. 2 The offender entered Mr Mason's house with three other offenders. The four of them had met earlier at the flat occupied by the offender's sister, where they planned to rob Mr Mason, whose house they knew. The offender and two of the others were wearing home made balaclavas. They took with them at least two knives and a metal handle broken off a shopping trolley. Taking the knives, the trolley bar and wearing the balaclavas demonstrated that they expected that Mr Mason might be home. This was no deterrence, however. Indeed, through the security door they saw him watching television before the offender kicked it in. He was holding a knife and, I am sure, threatened Mr Mason with it. A struggle ensued involving the offender, probably when Mr Mason rushed him in an attempt to escape through the open front door. During this struggle, Mr Mason was fatally stabbed. The knife had entered his body at the lower back at one point, causing two quite separate wounds in different directions about 12 centimetres deep. The knife was, therefore, almost completely withdrawn and then entered the body again. One wound passed through the left kidney and the other the aorta. Mr Mason had also been stabbed in the right buttock, the knife penetrating seven centimetres, stopped by the bone of the pelvis. He was also struck very hard on the head with a blunt object, almost certainly the steel trolley handle, causing a fractured skull but whether this blow occurred before or after the stabbing is uncertain. I have no doubt that the offender inflicted all stab wounds. I am unable to say that he also inflicted the head injuries, although I doubt it. 3 I cannot say if the offender intended to kill Mr Mason but I have no doubt he intended to cause him very serious injury, probably in a panic to escape. Whilst it is clear that he intended, at least, to threaten Mr Mason, the offender probably did not think much further about the likely consequences of wielding a knife in that way. I do not, however, think that he took a backward step. The fact that three wounds, all serious, were inflicted by him demonstrates both a decision and an intention to cause very serious injury. 4 After the struggle, the offenders fled, taking with them a compact disc player and a mobile telephone. Mr Mason followed them outside, calling for help. He went back inside and tried to use the telephone. He died very shortly after. He was 56 years old. The offender was then just four months short of his eighteenth birthday whilst, of the other offenders, one was almost sixteen and the other two not quite thirteen years of age. 5 Before dealing with the offender's personal circumstances, I should mention the other offenders, all of whom were sentenced by Dowd J late last year. As will be seen, their positions are very different from that of the offender with whom I have to deal. The first very significant difference is that each pleaded guilty to the offence of robbery in company. Though a serious crime, robbery - even in such circumstances - is substantially less grave than murder committed in the same circumstances. Moreover, it was appropriate that some allowance should have been given, as indeed it was, for the pleas of guilty. An additional important differentiating factor is that all three undertook to give evidence at this offender's trial, an undertaking which they duly honoured, although I cannot avoid observing that I am sceptical that any of them was truly candid. Dowd J also considered that that the three offenders were genuinely remorseful, an element which is regrettably missing in Mr Whitfield's case. Almost equal in importance with the difference in offence for which they were sentenced by Dowd J is the matter of age. It will be seen that Mr Whitfield is much older than the two youngest offenders, who were not quite teenaged and he is significantly older than the third. The last major difference is that Dowd J accepted as, indeed, do I, that Mr Whitfield was the instigator of the attack on Mr Mason's home. 6 So substantial are the differences between Mr Whitfield and the other three offenders that I do not consider the latter dispositions to be relevant to the assessment of the appropriate sentence which should be imposed on Mr Whitfield. 7 For such a young man, the offender has a regrettable criminal history. This includes being dealt with in May 1998 for stealing cars, receiving stolen property, possessing implements capable of entering a car, stealing from a motor vehicle, three counts of robbery and dangerous driving. He was again dealt with in September 1998 for assault occasioning actual bodily harm, then in August 1999 for affray and August 2000 for common assault. 8 The Probation and Parole Board pre-sentence report that was tendered in the sentence proceedings noted that the offender had extensive involvement with Juvenile Justice authorities. When taken into custody following his arrest on 16 January 1999, the offender was held in a Juvenile Detention Centre because of his age. Although the offender demonstrated a positive response to supervision through his attendance at counselling, his continual misconduct in other respects required his transfer to an adult Correctional facility which, at all events, he had requested. 9 The offender is of Aboriginal heritage and identifies as Aborigine. However, his mother, Mrs Ellis, said that he had not at all been raised as an Aboriginal. Indeed, she said that, if on the occasion of his arrest, she had been asked by the police whether her son was Aboriginal, she probably would have answered "no". The considerations which arise when sentencing Aborigines have been summarised by Wood CJ at CL in Fernando (1992) 76 A Crim R 58 at 62 ff, which I do not need to set out. The first of these is as follows - "The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group."

(Reference may also be made to R v Russell (unreported) NSWCCA 15 December 1995, especially per Kirby ACJ at 10ff and Neal v The Queen (1982) 149 CLR 305 per Brennan J at 326.)

10 Mrs Ellis said that her relationship with the offender's father (Mr Booth) finished a few months after the offender was born. The family lived in Wollongong, but Mr Booth lived in Wentworthville. He took the offender for a weekend every couple of months but that stopped after what appears to have been a relatively short time. The offender would then only see Mr Booth on the odd occasion that his mother was able to take him to Sydney, although he spent the last couple of months of his primary schooling with Mr Booth. Mr Booth's influence on the offender has been negative, due to what has been alleged to have been his heavy consumption of alcohol, drug use and criminal activity, including periods in gaol. The Probation and Parole Officer reported that inquiries had shown that the offender's criminal activity had not been discouraged by his father. Rather, the offender regarded his father as a role model. 11 The offender did not do well at school. After three weeks' attendance at secondary school he was placed in a special school because of what his mother reported as continual learning and behavioural difficulties. Mrs Ellis moved with the offender's sister to Bathurst at the suggestion of the authorities so that he, then in an institution, could be returned to her custody. However, though he came home, the offender stayed only for about six weeks and then left home to live on the streets and, on occasions, with Aboriginal families in or near the town. But this only lasted a couple of months. In 1998 Mrs Ellis moved back to the Port Kembla-Warrawong area. The offender followed her, but lived elsewhere, associating with Aboriginal people, it appears, quite frequently. However, he got into more trouble, as I have mentioned above, and spent most of the year in Keelong, a Juvenile Justice institution, coming out in December 1998. The offender had been given early release on the condition that he lived with his mother. He did not comply with this condition. 12 Having discontinued his schooling at the age of thirteen years, following in his own words, "problems with teachers and being told what to do", the offender completed years eight and nine whilst in Juvenile Justice Centres. Whilst in custody, the offender completed a number of courses and had expressed a keenness to further his education. It appears he would like to get employment as a landscaper. Having regard to the offender's history, I do not consider that his Aboriginality requires that the sentence that I would otherwise impose should be adjusted. 13 The offender told the Probation and Parole officer that he had broken into the house but denied murdering Mr Mason. He claimed to have a limited recollection of what happened because he was affected by drugs and alcohol. Indeed, at the time of the offence he claimed to be consuming alcohol, marijuana, LSD and amphetamine. I do not intend to detail here the evidence given in the trial about the hours immediately preceding the offence and the time of the offence itself. It is enough to state that he was clearly not affected either by drugs or alcohol. I am of the view that, when he committed this grave offence, the offender was completely sober and knew exactly what he was doing. It follows that his memory was not affected by any drugs or alcohol. The conclusion that he lied about this out of a consciousness of guilt is inevitable. If the offender was in the habit of taking illicit drugs when he could pay for them, this might provide a motive for robbery (which was, indeed, his claim) but I do not see this as of particular significance. 14 The report of the Probation and Parole officer contained the following - "Mr Whitfield admitted his involvement in the break enter at the victim's house, however denied murdering the victim. He claimed to have limited recollection of the matter before the Court. He attributed his memory loss to the level of his substance intake, and to the period of time that has lapsed following the commission of the offence. Mr Whitfield made the admission of a premeditation to rob someone whilst armed, to obtain money to finance his drug use. He stated that he did not intend on harming anyone 'I'm a money maker, not a life taker'. In his description of events he failed to demonstrate any degree of responsibility for his actions and to acknowledge how they may have led to the murder of the victim. He appeared to rationalise his offending behaviour by blaming external parties, having claimed how a lack of assistance left him with limited income and led him without a choice but to commit a theft related offence, 'I had no money to live on so I had to get it from somewhere'. Mr Whitfield's description of the offence appeared to be focussed on how the offence had negatively impacted on his life. He failed to acknowledge the victim throughout the discussion. The consequences of his crime including the effect on the victim's family were only given by Mr Whitfield when he was questioned directly about it."

15 Although the offender has expressed some remorse to his mother, I am unable to find, I regret to say, that he is in any real sense remorseful or contrite about what has happened and his role in it. Indeed, it seems clear that the offender has not accepted his responsibility for Mr Mason's death. It may be, though it is difficult to be confident about this, that this is a reflection of immaturity rather than callousness. Be that as it may, there is nothing in the offender's attitude to the crime that provides any ground for mitigation. 16 During the period of incarceration prior to commission of the present offence, the offender had demonstrated some insight into his offending behaviour and had positively responded to supervision. However, the commission of the present offence only two months after his release from Keelong indicates that not very much had been achieved. More worrying, perhaps, is the report that, whilst in custody in the Juvenile Justice Centre on remand, he has misconducted himself in various ways including assaults on fellow inmates, verbal abuse of welfare staff and physical abuse of his visiting girlfriend. This behaviour is described as poor impulse control. I point out that the decision to rob Mr Mason could not be characterised as impulsive, nor could taking the knife. On the other hand, I think it likely or at least possible, that his stabbing of Mr Mason was impulsive, though it was not in any sense accidental. 17 As I have mentioned, the offender was moved to adult prison. As at April 2001, he had been in Parklea for about a year. The Education Officer reported he was actively involving himself in education. He had the application to work independently and has displayed artistic flair. He presented no behavioural or discipline problems and was on good terms with inmates and the staff. There is no reason to think that this marked improvement has not continued. This is an encouraging development. 18 The offender told Dr Lennings, the psychologist retained to assess the offender for the purpose of the trial, that his is a good mother who attempted to provide a good environment for her children. However, Dr Lennings observed that early onset behavioural difficulties such as affected the offender are nearly always associated with family dysfunction and problems of supervision, especially where there is no reason to think that the offender suffers from Attention Deficit Disorder or any other biologically induced disorder. It is with a sense of some relief that I note that Dr Lennings reports that the offender's current attitude does not appear to imply any continuing fascination with or enjoyment of his formerly delinquent lifestyle. However, the offender continued with the lie that he was severely drug affected at the time of the offence. 19 Dr Lennings said that, although it seemed that the offender had some markers suggestive of neuro-cognitive deficits, his behaviour in the assessment did not indicate any problems in attention, his concentration appeared good and his task perseverance was excellent. Dr. Lennings considered that, overall, the offender's assessment suggested a young man of average cognitive skills and, although he clearly had suffered educationally and has disturbed behaviour, there were no markers that might implicate a direct neuro-cognitive explanation for his behaviour. However, this does not necessarily mean that no such disturbance is present. Its effects may be subtle, though real. Dr Lennings concluded that the offender had good average intelligence. Moreover, although the assessment showed that the offender's primary personality profile is anti-social, he appeared to be in transition and there were signs of increasing maturity. This gives some basis for hoping that rehabilitation is possible. 20 Victim Impact Statements have been tendered by the deceased's widow and his two adult daughters. They pay tribute to Mr Mason's virtues. He was a decent, honourable and charitable man. He death has caused great anguish and bitterness. 21 It is important, I think, to point out that, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The taking of a life is the gravest injury known to the criminal law. Accordingly, although the circumstances in which the crime is committed affect its gravity, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family who suffered greatly from his or her death. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 22 In Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 23 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. 24 The considerations which moderate the measure of punishment, whilst keeping at the forefront the policy objectives of sentencing, do not arise primarily from what is due to the offender but what is due to ourselves as a civilized and humane society. They reflect not so much respect for the criminal but the self respect of the community. The principles of reason and humanity which ascribe unqualified value to the life that has been lost require the law also to value the life of the person who comes to be sentenced. 25 I have dwelt on the subjective circumstances of the offender at some length because of the importance of rehabilitation of young offenders, frequently stated by courts of the highest authority and by which I am bound. This consideration is no less important where a very serious crime has been committed. Of course, the future is uncertain. If the offender continues to mature, as seems reasonably likely, he might be able to leave his antisocial behaviour behind. This is certainly not only in his own best interests, but it is also in the public interest. It is also an objective - though far from the only one - of the sentencing process. Accordingly, although the sentence that is imposed on the offender must be a heavy one, reflecting the gravity of his offence (even taking into account his subjective circumstances), I consider that there should be an opportunity, earlier than would be given to a mature offender, for the Parole Board to consider whether it is appropriate and safe for him to be released, under supervision, into the community. 26 Jonathon Troy Whitfield, you are sentenced to a term of imprisonment of twenty years commencing 16 January 1999. The earliest date upon which you may be considered for release on parole is 15 January 2012.

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