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District Court 15 October 2021

R v Whiteman

[2021] NSWDC 557

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL USING CARRIAGE SERVICE CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD >10 <14

Citation: R v Whiteman [2021] NSWDC 557
Court: District Court of NSW
Date: 15 October 2021
Judge: Haesler SC DCJ

Background

The offender was sentenced for sexual offences committed against 22 young female complainants over a period of approximately 15 years, from 2004 until his arrest in March 2020. The complainants were aged between 11 and 17 at the relevant times, with only one aged over 16. The offending began when the offender was himself an adolescent.

The offending involved two broad categories: physical contact offences against six complainants, and online or "cybersex" offending against the remainder, conducted through phones and computers using internet-based communications. The online conduct included grooming, transmitting indecent material to children, and using carriage services to procure sexual activity.

A total of 16 matters proceeded to sentence, involving 10 individual child complainants, with a further 12 complainants represented in schedule and Form 1 matters taken into account. The charges spanned both State offences under the Crimes Act 1900 (NSW) and Commonwealth offences under the Criminal Code Act 1995 (Cth).

  • How to structure an aggregate sentence across both State and Commonwealth offences, including matters taken into account on Form 1 or Schedule
  • The appropriate discount for utilitarian value of guilty pleas, applied consistently across both State and Commonwealth charges
  • How to treat offending that began in adolescence when the offender is sentenced as an adult
  • The correct application of the totality principle across multiple, accumulated sentences
  • Whether special circumstances existed to justify adjustment of the standard non-parole period ratio
  • The weight to be given to victim impact, objective seriousness across individual offences, and purposes of sentencing in a case involving serial child sexual abuse

Decision

Haesler SC DCJ imposed individual indicated sentences for each matter before arriving at two aggregate sentences: one for the Commonwealth offences and one for the State offences. The court acknowledged that while individual sentences must be identified for each matter, aggregate sentencing is available under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for State offences and s 68 of the Judiciary Act 1903 (Cth) for federal offences.

Guilty pleas had been entered in the Local Court. The court found those pleas had considerable utilitarian value, given the number of victims who would otherwise have been required to give evidence. A 25% reduction was applied to the indicated State sentences under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a comparable reduction was applied to the Commonwealth sentences consistent with established authority.

The court found special circumstances in respect of the State aggregate sentence, justifying an adjustment to the non-parole period ratio. The judgment noted the breadth, duration, and systematic nature of the offending as centrally relevant to objective seriousness, while also accounting for the offender's personal circumstances and the need for rehabilitation. The court warned the offender of the potential application of the Crimes (High Risk Offenders) Act 2006.

The total effective sentence, taking both the Commonwealth and State aggregates together, was 16 years imprisonment with a non-parole period of 12 years, commencing 4 March 2020.

Orders Made

Commonwealth offences (aggregate):
- Aggregate sentence of 11 years imprisonment commencing 4 March 2020
- Non-parole period of 7 years, expiring 3 March 2027

Individual indicated Commonwealth sentences included:
- Use carriage service to groom (Seq 60): 3 years 3 months
- Use carriage service to groom (Seq 63): 3 years 3 months
- Use carriage service to transmit indecent material (Seq 79): 3 years
- Use carriage service to groom (Seq 83): 3 years
- Use carriage service to engage sexual activity (Seq 85): 2 years
- Use carriage service to transmit indecent material (Seq 89): 3 years 9 months
- Use carriage service to groom (Seq 3, H73383221): 4 years 1 month

NSW offences (aggregate):
- Aggregate sentence of 10 years imprisonment
- Non-parole period of 6 years commencing 4 March 2026, expiring 3 March 2032
- Balance of sentence (4 years) to expire 3 March 2036

Individual indicated NSW sentences included:
- Aggravated indecent assault (Seq 17, with Form 1): 9 months
- Sexual intercourse child 14-16 (Seq 19, with Form 1): 2 years 3 months
- Sexual intercourse child 14-16 (Seq 22, with Form 1): 2 years 7 months
- Sexual intercourse child 14-16 (Seq 2, with Form 1): 3 years
- Assault with act of indecency (Seq 55): 1 year 6 months
- Aggravated indecent assault (Seq 80): 2 years 7 months (NPP 1 year 10 months)
- Sexual intercourse child 14-16 (Seq 81, with Form 1): 3 years 9 months
- Sexual intercourse child 14-16 (Seq 82, with Form 1): 3 years 6 months
- Possess child abuse material (Seq 6): 2 years 3 months

Total effective sentence: 16 years imprisonment, non-parole period of 12 years

The offender was warned of the potential application of the Crimes (High Risk Offenders) Act 2006, s 25C.

Key Takeaways

  • Where an offender faces both State and Commonwealth charges arising from related conduct, two separate aggregate sentences may be imposed under their respective legislative frameworks, with the totality principle applied to ensure the combined outcome is just and proportionate.
  • A 25% guilty plea discount applicable under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) for State matters can be mirrored in the Commonwealth sentencing exercise where utilitarian value is equivalent, provided the accumulation process does not effectively erode that discount.
  • The District Court found special circumstances in this matter, permitting departure from the standard non-parole period ratio in the State aggregate sentence, reflecting the need for extended supervision on release after a prolonged period of custody.
  • Offending that commenced during adolescence remains relevant to the sentencing exercise but does not insulate an adult offender from a substantial sentence where the conduct persisted for many years and caused serious harm to a large number of victims.
  • Victim impact statements carrying expressions of guilt or shame from complainants were addressed directly by the court, which affirmed that responsibility rested entirely with the offender and commended the complainants for coming forward.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61M, 61N, 66C, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 32, 53A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Criminal Code Act 1995 (Cth), ss 474.17, 474.25A, 474.27, 474.27A, 473.1
- Crimes Act 1914 (Cth), ss 16BA, 19AL, 19BA
- Judiciary Act 1903 (Cth), s 68
- Telecommunications Act 1997 (Cth), s 7
- Childrens (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- Hili v The Queen (2010) 242 CLR 520
- Hoare v The Queen (1989) 167 CLR 348
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Xiao v R [2018] NSWCCA