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. Circumstances of the offending 1. The victim and the Offender were both residents of the Strathaven resort in Boyce Avenue, Wyong for a period, although there was an issue as to whether the Offender was a lawful occupant of his unit on the date of the offence. They knew each other, through the victim's capacity as a caretaker for the resort. At least, the victim had visited the Offender some times in his unit (unit G10). 2. The victim was aware that the Offender had spent time with a woman called Crystal Osborne. He was also aware that Ms Osborne had a boy and a girl; and that the girl was about the same age as the victim's own daughter. The victim accepted that he took a photo of Ms Osborne's daughter which, according to the victim (whose version was not contradicted by anyone), depicted her riding his son's bike. The victim said that, at Ms Osborne's request, he deleted that photo. This event, he recalled happened about 4-5 weeks before the Offender assaulted him. 3. I find that on 1 April 2023, Ms Osborne disclosed the circumstances that the victim had taken the photograph (and also that the victim had deleted it, at her request). Some time, albeit not immediately after that disclosure that evening, the offender approached the victim's unit. 4. It is common ground that at approximately 10pm, the offender knocked on the door to the victim's unit and that he probably did so more than once. It is also common ground that the victim indicated to the offender, outside, that he was getting out of bed, and getting his pants on, before approaching the door. It was not disputed that the victim loosened the latch on the inside of the door. Finally, it is common ground that the offender entered into the unit. 5. The only (material) factual issue for the jury was whether it accepted the Crown case, beyond reasonable doubt, that the offender forced open the door. By its verdict, the jury rejected the Crown's case that the offender did. There was therefore no "breaking", for the purpose of the offence under s 112(2). 6. I find that, consistently with the jury's verdict, the victim had opened the door and the offender walked in. That is to say, contrary to the victim's evidence at trial, the offender did not kick the door open. 7. Once inside the unit, the offender demanded the victim's phone. The actual harm that the offender caused to the victim was somewhat disputed. The offender accepted that he punched the victim twice to the left side of his face and once to the left side of the victim's ribs; and that there was bruising and swelling to the victim's left eye and bruising to the right eye. Further, it is accepted that there was some injury to the fourth and fifth rib on the victim's right side. However, the offender contends that the Crown did not prove beyond reasonable doubt that it was any punch by the offender which had caused injury, of any kind, to the victim's rib on his right side; or that there was any fracture. 8. The offender then left the premises. 9. The victim later attended Wyong Hospital. A report by the Hospital indicated that the victim had facial bruising and to his lower chest. CAT scans revealed no facial fractures but a subtle buckling of the anterior right fourth and fifth ribs indicating a non-displaced fracture. However, Dr Aung said that his impression was that at the time that the victim was discharged, he did not have a rib fracture. 10. A photograph at the trial (Exhibit B) indicated significant bruising under the victim's eye as well. 11. I do not take the jury's verdict of acquittal on count 1 as necessarily amounting to a rejection of the Crown case that it was the offender who caused harm in the form of injury to the right side of the ribs. Nor do I take the verdict as a necessary rejection of the victim's evidence of his being assaulted on that part of his anatomy. The focus of the trial, at least in terms of the issues raised on behalf of the Crown and the offender, was very much upon the 'break in' aspect of the primary count on which the offender was acquitted, even though actual bodily harm was an element to that offence. In the trial, the accused had agreed that he had caused injuries to the victim amounting to actual bodily harm (Exhibit C), so the jury did not need to determine the nature and extent of them. There is no impediment to me determining what injuries the victim sustained and whether the offender was responsible for them. 12. As indicated there was a dispute between victim and offender as to which side of ribs that a punch was inflicted: the victim said it was his right side and the offender said that it was the victim's left. There was a broadly contemporaneous CAT scan to support the victim's evidence (29/1/24, T 10.24) of his being assaulted in the area of his right rib even if the extent of the injury to that part of his anatomy was contentious. Dr Aung noted that the victim's complaint of pain on the right side of his lower chest was consistent with what he found on examination and it was what he found on examination which led to the decision to take the scan. This was evidence to support the victim's version of which side of the ribs the offender punched him. 13. However, the Crown accepted that the Court may doubt whether a rib injury could be attributable to the offender's conduct rather than some other cause (such as the agency of another assailant). In view of that concession, I find that although the offender punched the victim on the right side of his rib, it is uncertain what injury was occasioned by that punch. Assessing the objective gravity of the offending 1. For personal offences of this kind, familiar indica of the objective seriousness of offending are the extent and nature of the injuries; the degree of violence; and the mental element of the offence. To the extent it is not otherwise subsumed within these considerations, the nature of the assault is also significant. 2. The injuries were not insignificant. The victim required pain medication. 3. The degree of violence was not insignificant, comprising multiple punches, including, but not limited to the victim's head – a vulnerable part of his body. 4. The episode did not last very long, but that is not uncommon for offences of this kind. 5. The circumstances in which the assault occurred are also pertinent and they include consideration of the victim's motive. Motive 1. The offender gave evidence in the trial and also gave an account to his psychologist, Ms Grujoska, that was recorded in the latter's report tendered in this sentencing hearing. 2. The gist of this was that his intention was solely to coerce the victim to deleting images of his then partner's 12 year old daughter off his mobile phone. But he also told Ms Grujoska that he had 'known' that the victim (and manager of the property) had coerced females in the complex by asking them to send explicit photos of themselves for rent reduction. This last aspect was not the subject of evidence from the offender at the trial: his evidence in chief was limited only to the one incident he had been informed about by his former partner. 3. The offender said that he felt morally obligated to speak on behalf of his former partner's daughter as he was the only male figure in her life and that during his confrontation he felt triggered by his own experience of sexual abuse which led him to commit the assault. 4. I find that the offender adopted a preconceived view that the photograph that the victim had reportedly taken was not innocent and determined that there was a real possibility, if not likelihood, that the victim had taken other photographs of Ms Osborne's daughter. His conduct also manifested his belief that he had a right to demand the victim's phone and, if such consent was not forthcoming, a right to seize the phone from him. I further find that the victim's resistance to giving the phone further incensed the offender; and I accept that it is likely that he was triggered by his own personal experience of sexual abuse and felt a protectiveness towards the daughter of his partner. 5. Although there was an element of spontaneity to the offending, the infliction of force was nevertheless intentional. Given where he struck the victim, I do not accept the offender's submission that he had no intention of hurting the victim, but was only there for a discussion about the photographs. That is a gross over-simplification. Putting aside the circumstance that he had no entitlement to demand that the victim show the offender his mobile phone, the offender did not need to punch and kick the victim if his intention was only to seize the phone. He was a bigger and more physical man than the victim. The offender took the victim's refusal to relinquish his phone as confirmation of, or perhaps an admission, of his suspicion of impropriety by the victim. It is not unimportant to note that there is no evidence that the offender actually inquired of the victim as to his side of the story as to why he had taken the photograph of the young girl. 6. The offender was in reality meting out corporal punishment to the victim for what he regarded as the victim wrongfully having conducted himself in taking the photograph of the daughter of his then partner riding on a push bike. 7. The assault was unprovoked. Putting aside the place where the assault occurred (which I consider below), the victim had a right to go about his affairs without being fearful of attack. 8. In the circumstances, the offending occurred within the mid-range of seriousness for offending of this kind. Aggravating factors 1. The assault occurred in the victim's home, thereby engaging s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). This not only violated the victim's natural sense of sanctuary, but also prevented the victim from any ready means of escape from his assailant. 2. The offending also occurred when the offender was subject to a community corrections order (12 months' duration) for driving a motor vehicle whilst disqualified Victim impact statement 1. On the eve of this hearing, the Court received a victim impact statement. It was actually written by the victim's brother on the basis that he was more familiar with technology and was adept at typing but there is no reason to doubt that it represents the victim's perspective. The victim referred to interpersonal issues with family and friends, engaging with a psychologist, a heightened level of distrust and even continuing fear he might be subject to further attack. He indicated his unwillingness to continue to serve as a caretaker at the resort and was subsequently evicted. He says he was informed that he was in a state of hypervigilance. 2. The Crown did not rely upon the victim's self-description of harm as aggravating the offending (in the sense of engaging s 21A(2)(g) of the CSP Act and I do not have regard to the statement in that way. the offender's subjective case Age and background 1. The offender was 36 years of age at the date of the offending. 2. His background is explored in a report of a forensic psychologist, Diana Grujoska dated 8 March 2024 (Exhibit 1). Ms Grujoska apparently had supplied a psychological assessment of the offender in August 2021 (although a report of that assessment was not before me today). She indicated that she had considered her report of that prior assessment as well as an interview with the offender (via AVL) in February 2024 in preparation for her current report. 3. The offender did not give evidence in this hearing; in which he might have affirmed the truth of what he told Ms Grujoska, however, the Crown did not take any point that the weight of her opinions was diminished because of the lack of reliability in the instructions she received from the offender. 4. His father was an indigenous Australian and mother a native Australian who is now deceased. He is the middle child of a large family; comprising no less than 15 children. 5. He reported to Ms Grujoska of experiencing physical abuse from his father and witnessing his father perpetrating abuse against his mother. He reported being sexually abused by older brothers. He became distant from his family from about the age of 15 and spiralled into homelessness and drug use. It was in this milieu that his social life operated; although he told Ms Grujoska that he no longer associates with drug users and anti-social people. Also at the age of 15, he was involved in a car accident; which continues to affect him and for which he takes prescribed drugs. 6. He had a turbulent relationship with a long term partner, which relationship produced two children aged 12 and 11. Their relationship is so bad that he is now the subject of a current AVO. His former partner's sister has custody of those children. At the beginning of 2023 he started a casual relationship with another woman and it is this which provided context for his offending: she had a 12 year old daughter, and 4 year old son, from a prior relationship and the offender explained to Ms Grujoska that he felt protective of the children as he was the only male figure in their lives. 7. With this background, it is unsurprising that his schooling career was haphazard; culminating in his completion of Year 10 whilst he was in custody. In terms of his further training and employment, he has undertaken some courses in furniture making and hospitality operations and done some work in a bar and forklift driving. These jobs have not been all-consuming. He has been a recipient of Centrelink benefits for several years. But prior to the index offending, he appeared to be content working as a kitchen hand in a bowling club. 8. Ms Grujoska noted that the offender had been diagnosed with bipolar disorder, depression and anxiety. In her previous report, she assessed the offender as having moderate levels of depression and mild levels of anxiety and stress and other symptoms consistent with PTSD. 9. Ms Grujoska recorded the offender confirming a long-standing history of benzodiazepine, heroin and ice use. He explained to her that he used ice and heroin to cope and to try to block out memories associated with sexual abuse. Culpability 1. The Crown accepts that Bugmy principles [1] are engaged. I find on the probabilities, that childhood disadvantage arising from an early exposure to physical abuse and personal experience of sexual abuse did contribute to the offending. As indicated, the traumatic experiences that the offender endured fostered a latent sense of frustration, a tendency to impulsivity and ready resort to violence to act out those frustrations. It was notable that what triggered the violence here was a belief, bordering on certainty, that the victim had effectively engaged in indecent or at least improper behaviour towards his then partner's daughter. By assaulting the victim, he was meting out a sense of injustice and projecting on to this victim his own frustration and the enduring sense of trauma he had to deal with in his own life. In this sense there was a causal connection between child disadvantage and the offending. The Crown further accepts that such causal connection exists. 2. That his conduct was misconceived and unjust towards the victim does not alter the significant trigger at play and I find that his moral culpability was reduced. 3. Set against this mitigating circumstance is the view expressed by Ms Grujoska that his difficulty, demonstrated so often throughout his life, in restraining his impulses to manage the consequences of his behaviour, elevates the significance that the sentence engage a need for community protection. 4. The offender also submitted that it is a mitigating factor that the offender was beset by mental disorders, in accordance with Muldrock [2] or De La Rosa [3] principles. He cites views of Ms Grujoska's findings on assessment regarding anxiety and PTSD and issues with alcohol and drug abuse and her view that his profile is consistent with his having Major Depression. 5. Ms Grujoska did not suggest any causal connection between any or all of these conditions and the index offending. The closest that any of the conditions might come goes to PTSD, in the sense that the offender's conduct was triggered by past abuse perpetrated upon him, but that has been addressed under the rubric of Bugmy principles. The mental health issues he faces do not add anything further in the sense of reducing his culpability. Remorse 1. The offender submitted that I should find, on the probabilities, that he is remorseful. 2. Ms Grujoska recorded the offender's sense of reflection upon the offending and his 'regret' that he did not just turn around and leave. He was 'upset with himself' that he engaged in the offending. 3. This statement of reflection, centred upon his own feelings, evinced no recognition of the harm he inflicted upon the victim or the wrongfulness of his actions. It reflects another observation that Ms Grujoska made of the offender that his profile reflected someone who was 'detached' from others. 4. She found that the offender had demonstrated 'insight'. With respect, there was nothing in her record of what the offender said to her that suggested any recognition of his aggressive and violent tendencies upon other people. 5. Even with the circumstance of his entering a plea, I regard that as being entered for utilitarian purposes having regard to a strong Crown case (on the index offence). 6. I am unable to find that he is remorseful. Antecedents 1. The offender has had a long criminal history, which commenced when he was still a teenager. His history comprises multiple personal violence offences, including maliciously inflicting grievous bodily harm (May 2006) common assault (August 2007, June 2017, November 2022) and the index offence and numerous domestic violence offences. There were other offences denoting dishonesty (January 2012, September 2020, May 2023) and numerous other offences indicating a disobedience to restrictions (driving whilst disqualified) or in disregard to legal obligations, by failing to appear in Court when required (February 2013, August and November 2017). 2. There have also been many disciplinary infractions whilst he has been incarcerated in correctional settings; most of which are drug-related. 3. His record disentitles him from leniency. Rehabilitation prospects and likelihood of reoffending 1. In her report, Ms Grujoska observed that over the last 9 months, he had undertaken certain courses including EQUIPS Foundation and EQUIPS Addiction. Several certificates of completion by the offender of courses undertaken in custody in 2023 were in evidence. He informed her that about a year before the offence, he was on the suboxone program which had been successful; at least to the extent of enabling him to move on from the toxic relationship with the ex-partner. 2. Within Ms Grujoska's report are indications of mixed success in managing his drug use. When previously in custody, he had been on the Buvidal injection and, upon his release, he was on the suboxone program. This led to a year's abstinence but after the index offence, he had relapsed. However, he asserted that he was abstinent from drugs again. Separately, he also asserted that he was abstinent from alcohol. 3. Ms Grujoska noted the offender's positivity about his abstinence and future prospects, including his plans for working and engagement in treatment upon release. He informed her of his plans to improve his anger management skills and treatment for the traumatic effects of his own abuse. I note, further, his apparently recent reconnection with his brother 'Lez'. 4. These are statements generally of an aspirational nature, but they lack specificity. They fall to be evaluated against the unpromising backdrop of a significant criminal history for someone of this offender's age, including, as previously emphasised, offences betokening dishonesty. 5. Ms Grujoska alluded to research showing that offenders who, like this offender, have experienced child physical or sexual abuse not only are at higher risk of developing PTSD but also exhibit aggressive and antisocial behaviours. So too, males with comorbid PTSD and substance use disorders are at higher risk of recidivism. 6. I observe that Ms Grujoska recommended trauma-specific therapy to reduce his risk of reoffending. She helpfully set out a number of such forms of treatment. She stopped short, however, of predicting the extent of his commitment to engage in that specific therapy. That result was unsurprising. Inferring, as I do, that she was likely to have suggested treatment in her previous assessment of the offender in 2021, a conspicuous omission from her report was explaining why the offender had not effectively engaged in treatment at that earlier point; if not beforehand. 7. I find that his rehabilitation prospects are guarded and am unable to say that he is unlikely to reoffend. Hardship 1. The offender's Counsel relied upon Ms Grujoska's reference to the offender's anxiety due to 'anticipated threats' in environment as a platform for arguing that the custodial setting would weigh more heavily upon him. In oral argument, his Counsel invited the Court to infer that because of his mental illnesses, it could be inferred that he would find imprisonment especially threatening. However, as Mr Crown submitted, that somewhat overstates Ms Grujoska's opinion evidence. On balance, however, there are strong indications of PTSD which, when considered with reference to his background, more likely than not, will mean that he will find his time in custody more onerous than other inmates. 2. Some of the matters Ms Grujoska identified (in paragraph 30) of her report are, however, not matters that may be thought peculiar to the offender. In summary, whilst I take this matter into account in mitigation, its weight is not very substantial. instinctive synthesis 1. I take into account the maximum penalty. 2. I take into account the considerations in s 3A of the CSP Act. For personal violence offences of this kind, general and specific deterrence are significant and the circumstances of the offending also indicate the significance of denunciation and retribution. I have acknowledged some moderation of the force of these considerations on account of the offender's background. However offsetting this in the need to impose a sentence which acknowledges the harm to the victim; and takes into account the offender's record, the offender's lack of remorse; along with his underlying aggressive and violent tendencies which go to elevating the significance of a sentence that protects the community. 3. It is common ground that the s 5(1) threshold has been crossed. I so find. Significance that the offending could have been disposed of summarily 1. Counsel for the offender submitted that the index offence is listed in Part 1 of Table 2 of Schedule 1 in the Criminal Procedure Act 1986 (NSW) and was thereby capable of being disposed of summarily in the Local Court. 2. I have had some regard to the submission but it does not materially assist the offender in a context where his Counsel has conceded that the offending was sufficiently serious as to fall within the mid-range of objective gravity (albeit submitting that it was at the bottom part of it) and there was present the aggravating factors alluded to in these remarks; not to mention this offender's poor criminal history. I am unable to find that it was inevitable that the charge would, standing alone, have been disposed of in the Local Court and find, at any rate, that Court's jurisdictional limit is neither binding upon nor particularly influential to me. Time in custody 1. The offender was arrested in this matter and placed in custody on 24 May 2023. 2. The offender had been in custody for an aggregate sentence of imprisonment in relation to multiple unrelated offences (committed in the period between 16 December 2022 and 10 May 2023) that had been scheduled to commence on 21 May 2023 with the non-parole period scheduled to expire and was due to be released on parole on 20 December 2023. Insofar as it is solely referable to the index offence, the Crown submits offender has been in custody since 20 December 2023; although the Crown accepts that the commencement date could fall earlier, between 25 May 2023 and 20 December 2023, on the basis of the totality principle. 3. Viewing those earlier offences, they are very different in kind to the index offence and have nothing to do with the victim; however, in my discretion, I will backdate the commencement date earlier to a relatively modest degree. Special circumstances 1. The Crown does not dispute, and I find, that the offender's capacity to engage in meaningful treatment programs in custody and his treatment needs warrant a finding of special circumstances. I so find. I also accept that the offender is at risk of institutionalisation which would separately justify such finding. sentence 1. Mr Whitmore, please stand. 2. You are convicted of the offence of assault occasioning actual bodily harm. 3. Taking into account the discount on your guilty plea, you are sentenced to a term of imprisonment of 1 year and 8 months' imprisonment commencing on 15 October 2023 and expiring on 14 June 2025. The non-parole period of 1 year expires on 14 October 2024 after which you are eligible for release on parole. ********** Endnotes 1. Bugmy v The Queen (2013) 249 CLR 571 2. R v Muldrock (2011) 244 CLR 120 3. DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 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: 12 April 2024