Whipp v R [2024] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Whipp v R [2024] NSWCCA 79 Hearing dates: 27 March 2024 Decision date: 24 May 2024 Before: Davies J at [1]; Button J at [2]; Sweeney J at [77] Decision: 1) Leave to appeal granted, and appeal against sentence upheld. 2) Sentences imposed at first instance quashed. 3) For the first count of armed robbery, the applicant is sentenced to a non-parole period of 2 years 9 months, to commence on 5 March 2022 and concluded on 4 December 2024, to be followed by a parole period of 1 year 9 months, to conclude on 4 September 2026. 4) For the second count of using an offensive weapon with intent to assault in company, the applicant is sentenced to a fixed term of imprisonment for 2 years, to commence on 5 March 2022 and that expired on 4 March 2024. 5) The first date upon which it appears that the applicant is eligible for possible release to parole is 4 December 2024. Catchwords: CRIME – appeals – appeal against sentence – armed robbery – whether sentencing judge erred in failing to take account of the effect of the applicant's mental health on the onerousness of full-time custody – where applicant suffers complex PTSD as a result of grave offences committed against him in juvenile detention – sentencing not reduced to "tick a box" process – necessary for sentencing judge to engage with significant submissions – topic of custody being more onerous because of applicant's mental condition not specifically addressed – appeal allowed – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) ss 33B, 97(1) Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Dellow v R [2020] NSWCCA 301 Egan v R [2017] NSWCCA 206 Prince v R [2020] NSWCCA 268 Sypher v R [2020] NSWCCA 336 Wood v R [2019] NSWCCA 309 Category: Principal judgment Parties: Peter Whipp (Applicant) Rex (Respondent) Representation: Counsel: J Roy (Applicant) S Traynor (Respondent)