Supreme Court New South Wales Medium Neutral Citation: R v Whiteley [2021] NSWSC 153 Hearing dates: 9-12 November 2020, 16-20 November 2020, 23-27 November 2020 Decision date: 25 February 2021 Jurisdiction: Common Law Before: Rothman J Decision: Sentenced to imprisonment for a non-parole period of 24 years, commencing 2 August 2018 and concluding 1 August 2042, with a balance of term of 11 years, concluding 1 August 2053. First eligible for release on 1 August 2042. Catchwords: CRIME – Murder – Sentencing – infant victim – no substantial offending – no prior abuse or domestic violence – severe assault – onerous incarceration conditions – special circumstances – sentence imposed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Sentence Parties: Regina (Crown) Timothy Whiteley (Offender) Representation: Counsel: L. Carr (Crown) P. Krisenthal (Offender) File Number(s): 2018/00238189 Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the victim's name or any identifying or potentially identifying information (including any information in relation to the name of the mother) is prohibited. EX TEMPORE Judgment 1. HIS HONOUR: The Court is given the task of setting and imposing a sentence on Timothy Andrew Whiteley, who, on 27 November 2020, was found guilty by a jury, of the murder of the deceased. 2. The murder occurred on 19 June 2018 at Tarro and on 9 November last year Mr Whiteley was arraigned in this Court. 3. The offender, Mr Whiteley, is almost 29 years of age and was 26 at the time of the offence. The deceased was aged 20 months. 4. The maximum penalty for murder is life imprisonment and, ordinarily, the standard non-parole period is 20 years. Because the deceased was a minor the standard non-parole period is 25 years' imprisonment for the hypothetical mid-range offence of that type. Both the maximum sentence and the standard non-parole period are guideposts in setting and imposing a sentence. But life imprisonment, the maximum sentence, is duly imposed only in circumstances involving the worst cases of murder. The Process of Sentencing 1. To those not familiar with the sometimes, if not always, difficult task of imposing an appropriate sentence, it may be difficult to understand. The Court takes a range of sentences available for a crime and considers, within the offence committed, where in a hypothetical scale from the least culpable to the most culpable the particular offence fits. 2. All murders are serious. Murder is the most serious offence in the criminal calendar because society values human life above all else and the sanctity of human life must be protected. 3. Moreover, the criminal law operates on the basis that mankind has free will – we have the capacity to choose to obey the law; and we are punished appropriately when we do not. 4. As stated, to those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even, as here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in that range of seriousness, this offence fits. 5. It is only, as I have stated, for the worst category of offences that one imposes the maximum sentence fixed by Parliament. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately, one can always imagine a worse scenario. 6. Nevertheless, the Court must assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of a worst case or lower down the scale of seriousness within a notional range between the lowest level of culpability and the worst category of cases. 7. The purpose in sentencing any offender is to resolve what are often, if not necessarily, conflicting sentencing objectives. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. 8. Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment and the need for rehabilitation must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence charged. These objectives point, most obviously, to the protection of society, deterrence of the offender and deterrence of others who might be tempted to offend, and to retribution. 9. Considerations of reform or rehabilitation of the offender may also be significantly affected by the objective circumstances of the offence, but they are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated. The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. 10. The process is one that involves what has been described as "intuitive synthesis". It takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and synthesises them to achieve the purposes of sentencing already described. 11. Every murder is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most serious of crimes in the criminal calendar. As already stated, the maximum sentence for murder is life imprisonment, that is a penalty which is imposed in the worst category of murder. In this case, because the age of the deceased is less than eighteen, the legislature has set a standard non-parole period of 25 years imprisonment. The standard non-parole period acts as a guidepost in the determination of an appropriate sentence. 12. In order to determine the objective seriousness of the offence, amongst those perceived as the most serious in view of society's respect for the sanctity of human life, it is necessary to deal with the circumstances of the offence and some facts leading up to the infliction of the fatal injuries, together with the treatment of the deceased for the period beyond the time when the offender inflicted the injuries from which the deceased died. Facts 1. Timothy Whiteley commenced the relationship with the deceased's mother, in or about March 2018, and resided with her from shortly thereafter. The deceased's mother had two children; a daughter, born in 2014; and the deceased, born in 2016. 2. The offender has a son about the same age as the older sister of the deceased that is from an earlier relationship. 3. It is unnecessary to recite the evidence and all the facts. It is sufficient to recite that all three children were staying at the residence of the offender and the deceased's mother on the day of the offence, as were the two adults. 4. The older sister was taken to day care at about 9am. The deceased was shown to be well. Shortly before noon, the offender picked the deceased up from the lounge where she was lying with her mother and took her to her bed to sleep. The deceased was, on all accounts, well at that point. 5. The offender put the deceased to bed and did not notice any injuries or difficulties. She was "fine", to use the offender's words. 6. Just before, and after, noon there were telephone or text communications between the offender and a person relating to car parts. At 12:07pm, a visitor to the residence, Mr Ellis-Watkins, talks to someone through the back door. Mr Ellis-Watkins was on the porch. At 12:15pm Mr Whiteley puts the dog out the back and at 12:21pm Mr Whiteley's mother and another arrive at the front door. 7. Just before the arrival of Mr Whiteley's mother, there was heard, by all, including Mr Ellis-Watkins, an extraordinarily loud bang. The offender, on the account of Mr Ellis-Watkins and the deceased's mother, was the only person in the vicinity of the deceased's bedroom at the time of the loud bang. 8. Thereafter the deceased was plainly distressed and at least semi-conscious. She finally stopped breathing and Mr Whiteley attempted CPR and tried to keep her alive while waiting for the ambulance. 9. The offence essentially occurred in the few minutes between the offender using the deceased's mothers' phone and the arrival of the offender's mother. 10. While there were a couple of suspicious admissions of the deceased to hospital, none of them could be sheeted home to the accused for the purpose of the trial and none can be used in sentencing. 11. Further, the evidence of the sleeping difficulties, from which the deceased suffered, does not suggest the kind of difficulties that might cause extreme stress in a carer. 12. Mr Whiteley denied guilt and continues to deny guilt. That is his right; but the circumstance of his denial results, given the foregoing, in the Court being denied an understanding of how and why these injuries were inflicted. 13. We know from the uncontested evidence of the pathologist that the injuries inflicted were substantial; caused death; and could not have been accidental. There were 13 injuries to the neck and head area; and 16 injuries to the trunk. 14. The injuries included a subdural clot; multiple rib fractures; injuries to the liver; and blood in the abdominal cavity – most caused by sudden extreme force. In other words, there were multiple blows to the child. 15. Given the blood on the bedding and the drawers, it would seem that the initial assault occurred on the deceased's bed and there may have been a subsequent violent and forceful throwing of the child against the drawers. But I cannot find beyond reasonable doubt the precise mechanism by which injuries were inflicted. 16. Nor am I able to ascertain the motive. I suspect, but no more than suspect, that the offender's access to the deceased's mother's phone gave him access to messages between the deceased's mother and another, about which some evidence was adduced in the trial. 17. I do not and cannot rely on such suspicion and I do not have an explanation for an assault of a young child of extraordinary violence. We do know that the offender was stressed about the loss of his glasses, which has substantial sentimental value. 18. The attack does not involve some hallmarks that might otherwise be present. Mr Whiteley does not have a history of domestic violence. There is no history of abuse of the deceased. And there is no discernible motive. 19. Yet the offence occurred. It occurred in a period of minutes and a young, defenceless infant is dead – never to grow and never to take part in her family or in society. 20. I have heard the Victim Impacts Statements and I have no doubt that impact on her family, including her sister, grandparents and father has been traumatic. 21. No human being could not be touched by the emotion expressed by the deceased's grandparents. Their Victim Impact Statements were particularly poignant. It must be extremely difficult at every family event and they suffer a trauma that will never leave them. Of course, nothing I do or can do can bring the deceased back or undo that trauma. 22. I accept that the infliction of the injuries from which the deceased died were neither planned nor premeditated. I also accept, particularly given the absence of prior domestic violence by the offender, the limited time involved in the offence and the caring by the offender of the deceased in the period immediately prior to the assault, that the offender "snapped" in a spontaneous outburst that ultimately cost the deceased her life. 23. I repeat the comments I made in a previous case involving the assessing of objective seriousness in an infant murder. 24. The most obvious factor in assessing the objective seriousness of this offence is the age of the victim. As earlier stated, the deceased was twenty months of age. The offender was in a position of trust. I accept that the degree of trust reposed in the offender was not as great as the degree of trust reposed in the deceased's natural parent. Nevertheless, the offender was placed in a position of trust, and willingly and knowingly undertook, exercised and ultimately abused that trust. 25. The significance of the young age of the deceased is a matter of some difficulty in dealing with the principles to be applied. On the one hand, one could not assess the objective culpability of a murder (without any special reference to any particular factor) without having regard to the young age of this victim. Yet, the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) require that I take into account whether, the deceased was vulnerable, because amongst other things, she was very young. Thirdly, the legislature has fixed a standard non-parole period of twenty-five years imprisonment in the case of a murder, where the victim is under eighteen years of age. 26. As to the last mentioned matter, I accept that the murder of a child of such tender years, as is the deceased in this case, is a very different offence to the murder of a person who is, say, just under the age of eighteen. Not all minors should be treated the same. Nevertheless, the three separate considerations must be applied in a way that does not double or triple count the factor. 27. In my view, there is but one offence of murder. The tender age of the victim is a factor which impacts, in this case, the objective seriousness of the offence of murder. Having considered the age of the victim in that way, I do not further aggravate the offence by the application of the provisions of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 28. Further, I assess the objective seriousness of this offence within the general offence of murder. The circumstance is that I have, as a guidepost, a standard non-parole period of twenty-five years. A standard non-parole period significantly higher than would apply to the murder of an adult, reinforces the legislative intention that the murder of a child is to be treated more seriously than the murder of an adult. 29. In this case, the age of the victim is a significant factor, as already stated, in the assessment of the objective seriousness of the offence. 30. Not all offences that involve an intention to kill are more serious than offences involving an intention to cause grievous bodily harm. Such a submission or statement is a truism. 31. Nevertheless, in this case, if there were an intention to kill, and all other things remained the same, the offence would be a significantly more serious offence. Likewise, if the infliction of the injuries were premeditated and planned (even if the intention was only to cause really serious injury) the offence would be a far more serious one. The lack of all of those factors move the objective seriousness of this offence out of the worst category. 32. It is not that the Court is imagining circumstances that would be a worse case than the one before it. It is that this case, while extremely serious, is at or slightly above the mid-range of offences of murder of a child and is certainly not in the worst category. 33. At this point reference should be made to the provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provide that the Court "is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". 34. I do not consider that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. In my view, it is appropriate that there be a determinate sentence, holding out the possibility of parole, assuming the offender meets the criteria for its grant. Subjective circumstances 1. As earlier stated Mr Whiteley is almost 29 and was 26 at the time of the murder. He has an extremely limited criminal history having been involved in an affray in 2011, at the age of 18, for which a bond was imposed. 2. He has never, before this charge, been in custody. He was arrested on 2 August 2018 from which date any sentence I impose will commence. 3. Mr Whiteley gave evidence before me. Notwithstanding his confirmed denial of guilt, I accept that he did not want the deceased to die and acted to try to prevent that occurring after the injuries had been inflicted, including, as already stated, by administering CPR. While the confirmed denial affects remorse for the offending conduct, I am satisfied that Mr Whiteley regrets the death of the deceased and has been emotionally affected by it. 4. Mr Whiteley was sexually abused as a young child from the age of four and a half until he was eight. His stepmother was physically abusive toward his youngest brother for which Mr Whiteley was blamed. These events and the domestic dysfunction were internalised until, at 18 years of age, Mr Whiteley informed his grandmother. 5. He continued to suffer nightmares as a consequence. His other symptoms include an inability to trust people; avoidance of confrontation; and insomnia. He also suffers or has suffered seizures. 6. He does not abuse alcohol but did consume cannabis from the age of 17 or 18 and was consuming about 1g per day at the time of the offence. He was prescribed antidepressants for a couple of years and is currently consuming anti-depressants prescribed through Justice Health since he has been imprisoned. 7. There is some suggestion, with which I agree, that Mr Whiteley possesses a below average intellectual function. That seemed to accord with his conduct during the trial and in the witness box, although he was obviously traumatised at those times. 8. Dr Furst, a Forensic Psychiatrist, examined Mr Whiteley and his report is in evidence. Dr Furst diagnoses the offender as suffering three mental disorders: Substance Abuse Disorder (cannabis); Conversion Disorder (recurrent pseudo seizures/syncope); and Borderline Personality Disorder. 9. The last mentioned disorder is the most relevant to the sentencing exercise. Dr Furst explains the effect of the diagnosis in the following way: "The diagnosis of borderline personality disorder/borderline personality traits was made on the basis of previously reported emotional instability, functional impairment, and self-harming tendencies. Such patterns of emotional dysregulation, emptiness and self-harming behaviour typically develop as a long-term consequence of childhood sexual abuse; however, other childhood traumas and temperamental factors can also lead to such a constellation of emotional problems/disorders. He does not appear to meet criteria for the diagnosis of post-traumatic stress disorder or any other major mental illness such as schizophrenia or bipolar disorder." 1. In the following paragraphs of his Report, Dr Furst draws a connection between the diagnosis and the offending, and says: "Mr Whiteley denies being responsible for the death of [the deceased] in June 2018, making it difficult to be certain about his emotional state at the time, his motivations and/or the true explanations for his offending actions. However, the injuries inflicted upon the deceased, then aged only 20 months, are highly suggestive of anger and/or emotional dysregulation in the perpetrator, due to the extent and severity of the injuries inflicted. Therefore, I am of the opinion that the most likely connection between Mr Whiteley's psychiatric/psychological condition and his offending was his emotional instability and tendencies towards emotional dysregulation. This emotional dysregulation, a core feature of borderline personality disorder, especially when under stress, and Mr Whiteley's related tendencies towards excessive anger, are likely to have contributed to his offending behaviour in a material way, helping to explain, but not excuse, his behaviour." 1. I accept Dr Furst's Report and opinion. The emotional dysregulation is consistent with the rapid and spontaneous outburst of extreme violence towards the deceased. Whether or not this is strictly within the taxonomy in De La Rosa, [1] I take it into account in ameliorating moral culpability to some degree. I also take into account the abuse as a child and circumstances of Mr Whiteley's early dysfunctional family environment. 2. Mr Whiteley continues to enjoy the support of his grandparents; his mother and his step-father. Statutory Considerations 1. As I have tried to clarify earlier, I take the violence involved and the age of the deceased into account in assessing objective seriousness. I do not use them again as aggravating factors. That is true also of the fact that Mr Whiteley at the time of the offence was in a position of trust. 2. That the offence occurred in the victim's home is an aggravating factor but it is qualified by two aspects. First, it was also Mr Whiteley's home. Secondly, the additional vulnerability and trauma occasioned to a victim is less obvious in a young child and some of the factors are, to some extent, also included in the aspect dealing with the position of trust. 3. There are ameliorating factors. The offence was unplanned and spontaneous. It was a sudden outburst occurring over minutes. 4. Mr Whiteley otherwise displayed care and love for the children of his partner even up to the time immediately before the offence. As stated, he has no relevant criminal history. 5. I also allow some mitigation for the remorse that has been displayed, even though, at this stage, it goes to the death but not the conduct that caused it. 6. The offender has very good prospects of rehabilitation, but until his emotional dysfunction is treated, there are risks of reoffending. He is young, which I also take into account. 7. Mr Whiteley is entitled to some benefit for the manner in which his trial was conducted. There were formal admissions; agreed facts; and, ultimately, there was no contest over much of the evidence. His assistance to the administration of justice was considerable and occurred both during the investigation and preparation phase, as well as during the trial. Most importantly, it avoided significant additional stress to the deceased's grandparents and other family. Synthesis 1. The Court is required to synthesise all of the objective and subjective factors to arrive at a sentence that achieves the purposes of sentencing. Those purposes, as I have already stated, are: protection of society; deterrence of the offender and of others who might be tempted to offend; retribution and reform. Each is a guidepost and some may point in different directions. 2. As is obvious, with a victim of this age, that factor is the most significant single aspect of objective seriousness. The Crown urges on the Court that the conduct in failing to take the victim for medical attention should be considered in determining objective seriousness. This is a two-edge sword. 3. The evidence is that Mr Whiteley was most concerned to keep the child alive and well, after the assault. At the same time, he was the only one who knew of the seriousness of the assault. Yet, at that time, the deceased's mother had primary care of the child and Mr Whiteley had less authority and control in the circumstances. I do not consider this aspect aggravates the offending. 4. This is a severe and violent attack on a defenceless infant. The very young age of the victim increases the objective seriousness. I assess the objective seriousness as above mid-range for the murder of a minor; however, it is not, as I have stated, in the worst case and not approaching the worst case of its kind. The intention was not to kill; it was to cause grievous bodily harm. That intention was formed momentarily, spontaneously and was a result of emotional dysfunction. 5. Neither general nor specific deterrence loom large. General deterrence is a factor but less so because of the psychiatric issues to which I have referred. Specific deterrence is not a major factor, not because there is no risk of re-offending, but because deterrence is unlikely to be effective to modify the conduct caused by the dysfunction to which I have referred. 6. I have outlined the subjective circumstances. Those circumstances ameliorate the severity of the sentence that would otherwise be warranted. As a matter of formality, I make it clear that a prison sentence is the only appropriate sentence. 7. There is one other matter. This is the first time Mr Whiteley has been in gaol. He will be there for some years. His conditions of imprisonment are more onerous than is usual. That is evidence given by Mr Whiteley and confirmed by Corrective Services. I take that into account by finding special circumstances that I will use to alter the statutory ratio between head sentence and non-parole period. Sentence 1. Mr Whiteley, please rise. 2. Timothy Andrew Whiteley, you are convicted that on 19 June 2018 you did murder the deceased. 3. I sentence you to imprisonment for a non-parole period of 24 years commencing 2 August 2018 and concluding 1 August 2042, with a balance of term of 11 years, concluding 1 August 2053. 4. You are first eligible for parole on 1 August 2042. Endnote 1. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Amendments 03 March 2021 - Typographical error 11 July 2022 - [76] Typographical error. 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: 11 July 2022