R v Whitmore [2019] NSWDC 802

R v Whitmore [2019] NSWDC 802

The offender deliberately armed himself with a hammer and waited for the victim, then struck him repeatedly and also kicked him. The use of the offensive weapon was assessed as mid-range and the assault as slightly below mid-range, aggravated by the fact that the offender was on bail. Although his dysfunctional upbringing reduced moral culpability and his early guilty pleas attracted a 25% discount, his criminal history, lack of proven remorse, deterrence, community protection, and rehabilitation needs required full-time imprisonment. The assault formed part of a continuous course of conduct with the weapon offence, so the sentences were ordered to be wholly concurrent. Special...

Jurisdiction
Australia
Judgment Date
24 October 2019
Procedural Posture
Criminal Sentence / Sentence Following Guilty Pleas
Outcome
Offender sentenced to full-time imprisonment for both offences, with the sentences to be served concurrently and backdated to 30 October 2018.
Legal Topics
['use of Offensive Weapon With Intent to Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'guilty Plea Discount' 'non Parole Period' 'concurrency' 'specific and General Deterrence']
['criminal Law' 'sentencing'] ['use of Offensive Weapon With Intent to Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'guilty Plea Discount' 'non Parole Period' 'concurrency' 'specific and General Deterrence']

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Procedural Posture

Criminal Sentence / Sentence Following Guilty Pleas

Legal Issues

  1. 1 ['What sentences should be imposed for using an offensive weapon with intent to commit a serious indictable offence and assault occasioning actual bodily harm.' "Whether the offender's account that he had the hammer because he was repairing a fence at 4am should be accepted." 'Whether special circumstances should be found to vary the ratio of the non-parole period to the head sentence.' 'Whether the sentences should be served concurrently.']

Ratio Decidendi

The offender deliberately armed himself with a hammer and waited for the victim, then struck him repeatedly and also kicked him. The use of the offensive weapon was assessed as mid-range and the assault as slightly below mid-range, aggravated by the fact that the offender was on bail. Although his dysfunctional upbringing reduced moral culpability and his early guilty pleas attracted a 25% discount, his criminal history, lack of proven remorse, deterrence, community protection, and rehabilitation needs required full-time imprisonment. The assault formed part of a continuous course of conduct with the weapon offence, so the sentences were ordered to be wholly concurrent. Special...

Court Disposition

Offender sentenced to full-time imprisonment for both offences, with the sentences to be served concurrently and backdated to 30 October 2018.

Orders

  • ['For the offence of using an offensive weapon with intent to commit a serious indictable offence, a term of imprisonment of 4 years 6 months, with a non-parole period of 3 years 4 months, commencing 30 October 2018 and expiring 28 February 2022.' 'For the offence of assault occasioning actual bodily harm, a term of...