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District Court 26 September 2024

R v WHIDDON

[2024] NSWDC 450

Sexual offences
SENTENCING PENALTIES COMMUNITY CORRECTION ORDER INDECENT ASSAULT

Citation: R v Whiddon [2024] NSWDC 450
Court: District Court of New South Wales
Date: 26 September 2024
Judge: Noman SC DCJ

Background

The offender met the victim on a dating application in June 2018. The offender knew the victim was transgender and remained in contact with her while she underwent gender reassignment surgery in Thailand, presenting as supportive throughout. They subsequently arranged two dates in October 2018.

The offending occurred at the end of their second date. In a car park, after consensual kissing, the offender unbuttoned the victim's jeans and placed his hand inside her underwear, directly touching her genitals. The victim verbally objected and physically attempted to push his hand away. The offender said "I'm going to check" before the conduct ceased when other people were heard nearby. His words, in the court's assessment, reflected curiosity about the victim's post-surgery genitalia.

The victim did not report the matter to police until mid-2022. The offender was arrested in January 2023 and stood trial in July 2024. The jury acquitted him of sexual intercourse without consent but returned a guilty verdict on the alternative count of indecent assault under s.61L of the Crimes Act 1900 (NSW).

  • What facts should be found for the purposes of sentencing, given the offender's continued denial of the touching?
  • What weight should be given to the apparent expression of remorse made during a pre-text phone call, given the offender's subsequent denial at trial?
  • Whether the threshold for imposing a sentence of imprisonment under s.5 of the Crimes (Sentencing Procedure) Act was met.
  • What sentence was appropriate given the objective seriousness of the offending, the offender's good character, and the victim's ongoing harm?

Decision

Factual findings: Noman SC DCJ was satisfied beyond reasonable doubt of each element of the offending as described by the victim, including the direct genital contact, the victim's verbal and physical resistance, and the offender's words at the time. The judge considered the victim an impressive and credible witness, noting that a particularly unusual detail, the offender sniffing his fingers afterwards, confirmed the conduct and was not prone to misinterpretation. The offender's denial was not accepted.

Objective seriousness: The offence was characterised as objectively serious, involving a direct invasion of the victim's body by a person she regarded as a romantic interest, at a time she was recovering from intimate surgery. Although of short duration and without penetration, the conduct was forceful and accompanied by a statement that demonstrated the offender knew of the absence of consent. The victim suffered lasting trauma affecting her work, health, volunteer activities, and social life, still experienced six years later.

Remorse and character: The judge found that the offender had expressed genuine remorse during the pre-text phone call, demonstrating acceptance and empathy, but that this was later compromised by the reality of facing a criminal charge. The offender's continued denial at trial meant no discount arose from a plea or post-offence remorse. Despite this, the offending was entirely uncharacteristic. The offender had an unblemished record, a commendable history as a firefighter and volunteer with the Rural Fire Service and Scouts, and very favourable prospects of rehabilitation. Personal deterrence was assessed as having minimal application.

Sentence: Both the Crown and the offender jointly submitted that the threshold for imprisonment under s.5 was not met, and the court accepted that position. Community service was unavailable. A community correction order of three years was imposed, with conditions including supervision by Community Corrections and participation in a sex offender supervision assessment program.

Orders Made

  • The offender is convicted of indecent assault contrary to s.61L of the Crimes Act 1900 (NSW).
  • A Community Correction Order is imposed for a period of three years, with the following conditions:
  • Must not commit any offence during the term of the order.
  • Must appear before the court if called upon at any time during the term of the order.
  • Must submit to supervision by Community Corrections for as long as directed.
  • Must undertake any programs nominated by Community Corrections, particularly those arising from a sex offender supervision assessment.
  • The offender is required to report to the Community Corrections office at Cooma within seven days.
  • The offender is directed to attend the court registry to receive and have explained a copy of the order.
  • Non-compliance with the conditions may result in the offender being returned to court for re-sentencing.

Key Takeaways

  • Sentencing after trial requires the judge to make independent factual findings, applying the criminal standard of proof to any circumstances of aggravation, even where those facts were disputed by the offender at trial.
  • A genuine expression of remorse made in a pre-text phone call may be treated as meaningful even where it is subsequently resiled from at trial; the District Court here treated the phone call as reflecting genuine remorse at the time, while acknowledging the later denial as a response to the seriousness of facing public criminal proceedings.
  • Where both the prosecution and defence jointly submit that the s.5 imprisonment threshold is not met, the court may accept that submission, even in the absence of a guilty plea and where the offender maintains a denial of the conduct.
  • Uncharacteristic offending by a person of previous good character, combined with very low assessed risk of reoffending, can support a non-custodial outcome even for objectively serious sexual offences carrying a maximum of five years' imprisonment.
  • The ongoing and long-term consequences suffered by a victim, including impacts to employment, volunteering, health, and social life, remain relevant to the sentencing assessment even where those consequences are characterised as falling within what is ordinarily contemplated for this type of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s.61L (indecent assault, maximum penalty five years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.5 (threshold for imprisonment)

Cases cited: No cases were cited in the judgment.