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Court of Criminal Appeal 24 March 2023

Whiteman v R

[2023] NSWCCA 58

Sexual offences
CRIMINAL LAW SENTENCE APPEAL COURT REQUIRED TO RESENTENCE YEAR PERIOD INVOLVING 22 CHILDREN NO LESSER SENTENCE WARRANTED IN LAW LEAVE TO APPEAL GRANTED

Citation: Whiteman v R [2023] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 24 March 2023
Judges: Bell CJ, Price J, Lonergan J

Background

The appellant pleaded guilty in the District Court at Wollongong to 38 sexual offences against 22 children, committed over a 15-year period between 2004 and 2019. The offending involved grooming children aged approximately 11 to 15 years through social media and messaging platforms, with 11 instances of in-person sexual contact involving six victims. The appellant was first arrested on 11 December 2019, and a subsequent search of a seized USB device led to a further arrest on 4 March 2020, after which he remained in custody.

The sentencing judge, Haesler SC DCJ, imposed an aggregate sentence of 16 years with a non-parole period of 12 years. This comprised two components: 11 years (non-parole period of 7 years) for Commonwealth offences and 10 years (non-parole period of 6 years) for State offences.

The appellant sought leave to appeal on three grounds, including a factual error in the sentencing remarks, manifest excess, and a failure to properly assess the objective criminality of individual counts.

  • Whether the sentencing judge erred in finding that some offending continued after the appellant's initial arrest on 11 December 2019, when no evidence supported that finding
  • Whether the aggregate sentences imposed were manifestly excessive
  • Whether the sentencing judge failed adequately to assess the objective criminality of individual counts

Decision

The Crown conceded that the sentencing judge had made a factual error in finding that offending continued after the appellant's initial arrest. The Court of Criminal Appeal accepted that concession as properly made, characterising it as the kind of error identified in House v R (1936) 55 CLR 499. The concession required the Court to proceed to resentence the appellant, in accordance with Kentwell v The Queen (2014) 252 CLR 601.

Lonergan J undertook an independent resentencing exercise, considering all the agreed facts and fresh material tendered on resentence. Her Honour accepted there was no evidence of any offending after the initial arrest on 11 December 2019, correcting the original factual finding.

Despite that correction, the Court concluded that no lesser sentence was warranted in law. Lonergan J observed that the sentencing remarks had comprehensively addressed the objective seriousness of each instance of offending, and that ground 2 (manifest excess) would therefore have failed in any event. Her Honour noted that the offending involving one victim in 2018, when the appellant was 30 years old and the victim was 15, was particularly serious, and that she would have imposed significantly longer indicative sentences for those counts than the original sentencing judge had indicated.

Lonergan J described the appellant's conduct as persistent, opportunistic, and escalating, with substantial planning and effort directed at gaining the trust of vulnerable children. Given those findings on resentence, the Court declined to impose any lesser penalty, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a Crown concession establishes a factual error of the kind described in House v R, the Court of Criminal Appeal is required to conduct a fresh, independent resentencing exercise rather than simply correcting the error within the existing sentence.
  • In dismissing the appeal, the Court confirmed that a conceded error on resentence does not automatically produce a more favourable outcome for an appellant; the court may impose the same sentence or, in principle, a higher one, if the independent exercise of discretion warrants it.
  • A factual error by a sentencing judge can engage the Kentwell resentencing obligation even where the other grounds of appeal (manifest excess and failure to assess objective criminality) are not established.
  • Lonergan J found that the original sentence was, if anything, lenient in respect of the 2018 offending, noting she would have imposed longer indicative sentences for those counts, which underscored why no lesser sentence was warranted on resentence.
  • Publication of victims' names or identifying information is prohibited in these proceedings under s 578A(2) of the Crimes Act 1900 (Cth) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW)
- Crimes Act 1900 (Cth), s 578A(2)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code (Cth), including ss 474.17(1) and related provisions

Cases:
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DBW v R [2007] NSWCCA 236
- R v Gavel [2014] NSWCCA 46
- R v Nelson [2016] NSWCCA 130