R v Whitmore [2024] NSWDC 115

District Court New South Wales

Medium Neutral Citation: R v Whitmore [2024] NSWDC 115 Hearing dates: 12 April 2024 Date of orders: 12 April 2024 Decision date: 12 April 2024 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs [78]-[79] Catchwords: CRIMINAL LAW – sentence – assault occasioning actual bodily harm – fact finding after jury acquittal on a more serious offence – dispute over extent of victim's injuries and the offender's responsibility for them – consideration of offender's motive – whether offender remorseful – relevance that offending could have been dealt with summarily – whether hardship Legislation Cited: Crimes Act 1900 (NSW) ss 59(1), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 21A(2) Criminal Procedure Act 1986 (NSW) sch 1 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Muldrock (2011) 244 CLR 120 Texts Cited: Nil Category: Sentence Parties: Office of the Director of Public Prosecutions (ODPP) Mr Nathan Charles Luke Whitmore Representation: Counsel: Mr A O'Connor (ODPP) Mr B Robinson for the offender

Solicitors: ODPP Legal Aid NSW File Number(s): 2023/00135537 Publication restriction: Nil

EX TEMPORE SENTENCING REMARKS

Introduction 1. Mr Nathan Whitmore (the 'offender') is before the Court for sentencing for the offence that on 1 April 2023, at Wyong, he assaulted Mr Andrew Knighton (the 'victim') thereby occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW). 2. The maximum penalty for that offence is 5 years' imprisonment. There is no standard non-parole period for this offence. 3. At a trial, which commenced on 29 June 2024, the offender pleaded not guilty to the offence (count 1 on the indictment) of aggravated breaking and entering premises and committing a serious indictable offence (contrary to s 112(2) of the Crimes Act). A jury later acquitted him of that charge. 4. At that trial, the offender pleaded guilty to the index offence (count 2 on the indictment) on 29 January 2024. 5. It is common ground that he is entitled to a 25% discount on the guilty plea since the offender had previously offered that plea to the Crown in a case conference in the Local Court but the Crown had rejected that offer.