R v White [2021] NSWDC 272

District Court New South Wales

Medium Neutral Citation: R v White [2021] NSWDC 272 Hearing dates: 26 May 2021 Decision date: 01 June 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 2 years 3 months. Non parole period of 1 year 2 months. Catchwords: CRIME - Detain for advantage in company SENTENCE – factual dispute – judge left to determine voice identification issues from audio recording Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Cases Cited: Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Olbrich v The Queen (1999) 199 CLR 270 Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Windle [2012] NSWCCA 222. Ryan v The Queen (2001) 206 CLR 267 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Category: Principal judgment Parties: Joshua White (the offender) Director of Public Prosecutions Representation: Solicitors: Mr A Ly, Ly Lawyers (for the offender) Mr R Taylor (for Director of Public Prosecutions) File Number(s): 2020/00190640

SENTENCE

Introduction 1. Joshua White was friends with AJ Nicholls and both Nicholls' wife and his girlfriend, the complainant in this matter. In June 2020 White formed a view that Nicholls' girlfriend had leaked information about him relating to his relationship with his partner. 2. At about 10PM on 26 June 2020 Nicholls phoned the complainant and asked her to come to his workshop in Unanderra so they could "talk." She arrived about 11PM. Three men were present when she arrived - White, Nicholls and Rutherford. 3. Immediately on arriving she engaged with the men in a heated verbal argument about what the complainant had "leaked". The situation escalated. She was detained and threatened by all three men. For a short period she was tied to a chair. She was assaulted. Her life was threatened and a knife was produced to her. She was however allowed to leave but not after what it is accepted was a short but terrifying ordeal. 4. The victim complained to police the next morning. White was arrested on 27 June 2020 after he attended Lake Illawarra Police Station of his own volition. In the Local Court he accepted his guilt to a s 86(2)(a) Crimes Act 1900 offence. He adhered to that plea in the District Court on 27 May 2021. 5. What occurred at Nicholls' workshop was video and audio recorded by a security device at the premises. The video portion of the device showed little other than the girlfriend arriving and departing but the audio captured most of what was said. 6. A "statement of agreed facts" was tendered; so too was that audio recording. While the defence did not object to the tender of the audio recording there was a dispute about who said what at various points. The speaker designations put into the transcript by a police officer were not accepted or admitted. The transcript was tendered as an aid to assist in my determining who said what. I received no other assistance. I was not told anything about the substance of the "leaked" information or who some of the people named in the conversation were or their relationship with the parties or each other. I was left to determine the issues based on the logic of events and how the audio recording related to what was agreed. Neither the complainant nor White gave evidence. 7. Where a matter put forward in sentencing proceedings is contested, notwithstanding that the Evidence Act 1995 does not apply, it may not be acted accepted unless it is established. The proof of such a fact must occur in the context of the proceeding concerned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing Court must sentence according to what is known or agreed. This point was expanded upon by in the joint judgment in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [24].