R v Whittall [2022] NSWDC 664

District Court New South Wales

Medium Neutral Citation: R v Whittall [2022] NSWDC 664 Hearing dates: 11 August 2022 Date of orders: 11 August 2022 Decision date: 11 August 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community corrections order for a period of 12 months commencing today: [19]. Catchwords: CRIME – Affray SENTENCING - Relevant factors on sentence - plea offer in the Local Court refused but later accepted - custodial sentence warranted but pragmatism and community interest considerations should prevail - Bugmy factors Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 R v Whittall [2020] NSWDC 146 Category: Sentence Parties: Chaise Whittall (the offender) Director of Public Prosecutions Representation: Counsel: Ms M Fernando (for the offender)

Solicitors: Morrisons Law (for the offender) Mr L McGonigal (Director of Public Prosecutions) File Number(s): 2021/00051823

SENTENCE – EX TEMPORE REVISED 1. When Chaise Whittall was before me on 24 April 2020, despite the seriousness of the offence, intimidation, I gave him an opportunity to avoid going to gaol and placed him on an Intensive Correction Order for a period of 1 year 6 months: see R v Whittall [2020] NSWDC 146. It would appear from the material before me that he did engage with Community Corrections and his progress was reasonably satisfactory. He, however, blotted that copybook by getting involved in an ugly incident at a Wollongong club. 2. The genesis of the dispute was a car that had been left with the offender by the victim while that person was in custody. That car was damaged and the victim, the owner of the car, on his release, blamed Whittall's co‑offender for the damage. 3. On 17 February 2021 there was a verbal altercation between the co‑offender, the victim, and Whittall at a local club. That altercation continued outside the club. Whittall punched the victim to the side of the face. The co‑offender lunged at the victim with a knife. The victim was injured. 4. A serious charge of reckless wounding causing actual bodily harm was laid against Mr Whittall. He said he was not guilty of that charge. He was also charged with affray: s 93(c)(1) Crimes Act 1900. He offered to plead to that count in the Local Court. That plea was not accepted. It was ultimately accepted when an indictment was put before this Court this year. If the matter had been accepted in the Local Court, it is likely it would have been dealt with in the Local Court. 5. As a consequence of his being charged with the reckless wounding offence the NSW State Parole Authority breached his Intensive Correction Order (ICO). One reason for that breach was that he was bail refused in relation to the serious count and he could not meet the conditions of his ICO while he was in custody. He served the whole of the balance of the ICO of eight months. He was then released to bail. and he has kept to his bail. 6. Whittall offers to the Court a letter which indicates some insight into his background and his offending. It was not given on oath; it could not be tested. It differs from the Sentence Assessment Report. While accepting his wishes are genuine, I prefer the expert opinion of the Community Corrections Officer when he says Whittall still lacks insight into his offending behaviour. Given his personal history that lack of insight is not at all surprising. 7. There is material set out in the report before me from Ms Lucas, a Forensic Psychologist, that raises what are commonly called Bugmy factors: Bugmy v The Queen (2013) 249 CLR 571. 8. Whittall was born in a household where mental illness and drug use were common. He went to behavioural schools. He spent time with supportive grandparents, but, family turbulence and other problems meant that he did not have the advantages many in the community expect or demand. There is some indication he has underlying mental health problems. The use and abuse of drugs became normalised before he was old enough to make rational choices. 9. He clearly needs as much support as can be given to him in the community if he is to work, as he is now doing, and lead a normal community life; something I am sure he aspires to. He has family support from Mr Taylor, his partner and Dr Lee who has treated him since he was a child. 10. The experience of gaol I am sure has had an impact on him. All the reports indicate that he is doing everything he can do to avoid going back to gaol. 11. The facts of this matter makes this aim difficult. It was a serious example of its type. It would ordinarily call for a custodial sentence. The offence was committed while subject to an Intensive Correction Order. By its nature, the affray, put people in fear. It occurred in the car park of a local club. He was in company with the other man who had a knife. 12. The co‑offender, charged with reckless wounding. It is accepted he used the knife. He was sentenced to an Intensive Correction Order of seven months. His record is worse than this offender's. The principle of parity would mean that were a sentence of more than seven months to be imposed a justifiable sentence of grievance might arise. Like must be compared with like. 13. The Crown submit that a custodial sentence is warranted, and that the s 5 threshold has been crossed. 14. Ms Fernando, for the offender, says that there are other options available to the Court. 15. Every offence and every offender is individual. Ultimately sentencing exercises are about community protection. The community can best be protected if people who offend against it, with assistance, stop offending. Were I to apply, without consideration of individual factors, ordinary sentencing principles a custodial sentence would have to be imposed. It would commence sometime during the period he was bail refused after he went into custody in order to make allowance for some independent punishment for the breach of the ICO. Were I to apply principle without consideration and individual considerations that sentence would effectively have expired, whether it be full time or otherwise. 16. I cannot extend a sentence to allow for a longer parole period and supervision. The history of this matter therefore means that if I were simply to impose a fixed term Whittall would on release receive no supervision, no assistance or monitoring in the community; that would not be in the community interest. It would not be in Whittall's interest. So, while purely objective considerations call for a custodial sentence, pragmatism and the community interest requires a lesser disposition in this case. 17. I will take into account the time served. In particular I will take into account that there is a Community Corrections supervision plan available. No order other than that supervision requirement is required. He is working six days a week. I think it is probably best focusing on that than anything else. 18. Some community service is appropriate. Mr Whittall it may interfere with your income producing capacity but I think you should do some community service.