R v Whitmore [2021] NSWDC 637

R v Whitmore [2021] NSWDC 637

The objective seriousness of the offence was in the middle of the range because the offender acted in company, both offenders were armed, threats to stab the victim were made, physical force was used, minor actual bodily harm was inflicted, and the premises were ransacked. Although the offence was aggravated by being committed while the offender was on bail and in the victim's home, the sentence was moderated for the guilty plea, the Form 1 matter, the offender's deprived childhood under Bugmy, more onerous custody during COVID-19, totality, and special circumstances requiring a longer parole supervision period.

Jurisdiction
Australia
Judgment Date
08 October 2021
Procedural Posture
Criminal Sentencing / Sentence Following Guilty Plea
Outcome
Offender convicted and sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months.
Legal Topics
['aggravated Break and Enter With Intent to Commit a Serious Indictable Offence' 'infliction of Actual Bodily Harm' 'form 1 Offences' 'breach of Conditional Liberty' 'drug Addiction' 'special Circumstances' 'bugmy Principles' 'covid 19 Custodial Conditions']
['criminal Law' 'sentencing'] ['aggravated Break and Enter With Intent to Commit a Serious Indictable Offence' 'infliction of Actual Bodily Harm' 'form 1 Offences' 'breach of Conditional Liberty' 'drug Addiction' 'special Circumstances' 'bugmy Principles' 'covid 19 Custodial Conditions']

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Procedural Posture

Criminal Sentencing / Sentence Following Guilty Plea

Legal Issues

  1. 1 ['What sentence should be imposed for aggravated break and enter with intent to commit larceny in circumstances of aggravation being infliction of actual bodily harm.' 'How the Form 1 shoplifting offence should be taken into account on sentence.' "Whether aggravating factors were established, including offending while on conditional liberty and offending in the victim's home." "Whether the offender's deprived childhood reduced moral culpability in accordance with Bugmy v R." 'Whether special circumstances justified varying the statutory ratio between the non-parole period and parole period.' 'How custody during the COVID-19 pandemic and prior sentences served in custody affected the sentence commencement date and overall sentence.']

Ratio Decidendi

The objective seriousness of the offence was in the middle of the range because the offender acted in company, both offenders were armed, threats to stab the victim were made, physical force was used, minor actual bodily harm was inflicted, and the premises were ransacked. Although the offence was aggravated by being committed while the offender was on bail and in the victim's home, the sentence was moderated for the guilty plea, the Form 1 matter, the offender's deprived childhood under Bugmy, more onerous custody during COVID-19, totality, and special circumstances requiring a longer parole supervision period.

Court Disposition

Offender convicted and sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months.

Orders

  • ['Nathan Charles Luke Whitmore is convicted of aggravated break and enter with intent to commit serious indictable offence inflicting actual bodily harm.' 'Taking into account the Form 1 matter, the offender is sentenced to a non-parole period of 1 year and 3 months dating from 15 December 2020 and expiring on 14...