REGINA v WHITFIELD [2001] NSWSC 876

New South Wales Supreme Court

CITATION : REGINA v WHITFIELD [2001] NSWSC 876 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70053/00 HEARING DATE(S) : 19/4/01, 20/4/01, 23/4/01, 24/4/01, 26/4/01, 27/4/01,30/4/01, 1/5/01, 27/7/01 JUDGMENT DATE : 5 October 2001

Regina

PARTIES : v

Jonathon Troy Whitfield JUDGMENT OF : Adams J at 1

COUNSEL : Ms Laura K Wells (Crown) Mr Anthony I Parker (Offender) S E O'Connor (Crown) SOLICITORS : Legal Aid Commission of New South Wales (Meredith Phelps/Margaret Wall) (Offender) CATCHWORDS : Sentence - murder - home invasion - youthful offender - Victim Impact Statements - relevance R v Fernando (1992) 76 A Crim R 58 at 62 ff R v Russell (unreported) NSWCCA 15 December 1995 CASES CITED : Neal v The Queen (1982) 149 CLR 305 R v Previtera (1997) A Crim R 76 at 85 ff Veen v The Queen (No 2) (1988) 164 CLR 465 DECISION : Sentenced to a term of imprisonment of twenty years commencing 16 January 1999. The earliest date upon which eligibility for parole may be considered is 15 January 2012.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 5 OCTOBER 2001 70053/00 REGINA v JONATHON TROY WHITFIELD JUDGMENT

1 HIS HONOUR: Jonathon Troy Whitfield was convicted on 1 May 2001 of the murder of Ralph Mason on 11 January 1999. The murder occurred shortly after midnight in Mr Mason's home in Berkeley Road in a suburb of Wollongong. 2 The offender entered Mr Mason's house with three other offenders. The four of them had met earlier at the flat occupied by the offender's sister, where they planned to rob Mr Mason, whose house they knew. The offender and two of the others were wearing home made balaclavas. They took with them at least two knives and a metal handle broken off a shopping trolley. Taking the knives, the trolley bar and wearing the balaclavas demonstrated that they expected that Mr Mason might be home. This was no deterrence, however. Indeed, through the security door they saw him watching television before the offender kicked it in. He was holding a knife and, I am sure, threatened Mr Mason with it. A struggle ensued involving the offender, probably when Mr Mason rushed him in an attempt to escape through the open front door. During this struggle, Mr Mason was fatally stabbed. The knife had entered his body at the lower back at one point, causing two quite separate wounds in different directions about 12 centimetres deep. The knife was, therefore, almost completely withdrawn and then entered the body again. One wound passed through the left kidney and the other the aorta. Mr Mason had also been stabbed in the right buttock, the knife penetrating seven centimetres, stopped by the bone of the pelvis. He was also struck very hard on the head with a blunt object, almost certainly the steel trolley handle, causing a fractured skull but whether this blow occurred before or after the stabbing is uncertain. I have no doubt that the offender inflicted all stab wounds. I am unable to say that he also inflicted the head injuries, although I doubt it. 3 I cannot say if the offender intended to kill Mr Mason but I have no doubt he intended to cause him very serious injury, probably in a panic to escape. Whilst it is clear that he intended, at least, to threaten Mr Mason, the offender probably did not think much further about the likely consequences of wielding a knife in that way. I do not, however, think that he took a backward step. The fact that three wounds, all serious, were inflicted by him demonstrates both a decision and an intention to cause very serious injury. 4 After the struggle, the offenders fled, taking with them a compact disc player and a mobile telephone. Mr Mason followed them outside, calling for help. He went back inside and tried to use the telephone. He died very shortly after. He was 56 years old. The offender was then just four months short of his eighteenth birthday whilst, of the other offenders, one was almost sixteen and the other two not quite thirteen years of age. 5 Before dealing with the offender's personal circumstances, I should mention the other offenders, all of whom were sentenced by Dowd J late last year. As will be seen, their positions are very different from that of the offender with whom I have to deal. The first very significant difference is that each pleaded guilty to the offence of robbery in company. Though a serious crime, robbery - even in such circumstances - is substantially less grave than murder committed in the same circumstances. Moreover, it was appropriate that some allowance should have been given, as indeed it was, for the pleas of guilty. An additional important differentiating factor is that all three undertook to give evidence at this offender's trial, an undertaking which they duly honoured, although I cannot avoid observing that I am sceptical that any of them was truly candid. Dowd J also considered that that the three offenders were genuinely remorseful, an element which is regrettably missing in Mr Whitfield's case. Almost equal in importance with the difference in offence for which they were sentenced by Dowd J is the matter of age. It will be seen that Mr Whitfield is much older than the two youngest offenders, who were not quite teenaged and he is significantly older than the third. The last major difference is that Dowd J accepted as, indeed, do I, that Mr Whitfield was the instigator of the attack on Mr Mason's home. 6 So substantial are the differences between Mr Whitfield and the other three offenders that I do not consider the latter dispositions to be relevant to the assessment of the appropriate sentence which should be imposed on Mr Whitfield. 7 For such a young man, the offender has a regrettable criminal history. This includes being dealt with in May 1998 for stealing cars, receiving stolen property, possessing implements capable of entering a car, stealing from a motor vehicle, three counts of robbery and dangerous driving. He was again dealt with in September 1998 for assault occasioning actual bodily harm, then in August 1999 for affray and August 2000 for common assault. 8 The Probation and Parole Board pre-sentence report that was tendered in the sentence proceedings noted that the offender had extensive involvement with Juvenile Justice authorities. When taken into custody following his arrest on 16 January 1999, the offender was held in a Juvenile Detention Centre because of his age. Although the offender demonstrated a positive response to supervision through his attendance at counselling, his continual misconduct in other respects required his transfer to an adult Correctional facility which, at all events, he had requested. 9 The offender is of Aboriginal heritage and identifies as Aborigine. However, his mother, Mrs Ellis, said that he had not at all been raised as an Aboriginal. Indeed, she said that, if on the occasion of his arrest, she had been asked by the police whether her son was Aboriginal, she probably would have answered "no". The considerations which arise when sentencing Aborigines have been summarised by Wood CJ at CL in Fernando (1992) 76 A Crim R 58 at 62 ff, which I do not need to set out. The first of these is as follows - "The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group."