Director of Public Prosecutions v White
[2023] VCC 1520
•25 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL JURISDICTION
CR 21-01216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN JOHN WHITE |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Horsham |
DATE OF HEARING: | 31 July – 10 August 2023, 14 August 2023 |
DATE OF SENTENCE: | 25 August 2023 |
CASE MAY BE CITED AS: | DPP v White |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1520 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – grooming for sexual conduct with a child under the age of 16, sexual penetration of a child under the age of 16 (course of conduct), using carriage service to transmit indecent communication to person under 16 years of age, attempting to pervert the course of justice
Legislation Cited: 5AAA of the Sentencing Ac 1991, Sex Offender's Registration Act 2004
Cases Cited:-
Sentence:Imprisonment, Total Effective Sentence – 9 years and 3 months, non-parole period – 6 years and 6 months, serious sexual offender, Sex Offenders Registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | Ms S. Ross, Office of Public Prosecutions |
For the Offender | Mr A. Hands | KPW Lawyers, Wodonga |
HIS HONOUR:
1Colin John White, you have been convicted by a jury of one charge of grooming for a sexual conduct with a child under 16 years, Charge 1. You have been convicted of one charge of sexual penetration of a child under 16 being a course of conduct charge between August 2018 and February 2019, Charge 5. You have been convicted of one charge of using a carriage service to transmit an indecent communication to a person under 16, Charge 6. And one charge of attempting to pervert the course of justice contrary to common law, Charge 7.
2In these reasons for sentence, I shall refer to your victim simply as 'your victim' to protect her identity.
3The facts of your offending are clear. In 2018 you were a teacher at Castlemaine[1] Secondary College until 25 May, when you transferred to Warburton[2] Secondary School. At Castlemaine you were a teacher for your victim, then a 14‑year-old female pupil, in one of your classes. You had been one of her teachers over the preceding years. She was a troubled, emotionally vulnerable, and needy young girl.
[1] Location de-identified.
[2] Location de-identified.
4Over a number of weeks in mid-2018 you commenced a course of conduct designed to cause your victim to rely upon you and emotionally open up to you. She knew you were leaving Castlemaine to take up the Warburton position. You told her, 'I'd like to keep in contact – morally, ethically and all that sort of shit, I really shouldn't.' 'What are they going to do, sack me?' 'I fly by my own rules.'
5She was regularly cutting herself and you knew that. You asked her to show you her self-inflicted injuries and when she hesitated you said, 'Since when have I ever played by the school rules, I'm talking for you and me for our sake.' Later you told her, 'Look, like I said, I'd take you with me if I could.'
6You were aware that you should mandatorily report her self-harm but told her you would not do so if she was not ready. You provided her with emails and material from the school student management computer system that related to her and told her that you 'probably shouldn't have done that.'
7You told her, 'I'm here for you, okay? I might be a couple of hundred kilometres away but there at a moment's notice if you need me”. “I want to thank you for trusting me. Do you think we are getting too close?” “Like I said, I'd like to stay in touch but it's completely your decision”. “I'm going to be back each weekend”. “Worst case scenario, get on the email and hit me up for a conversation. I'll make sure I'm on tonight so if you're feeling down and miserable old Whitey will cheer you up”. “I'll continue to say stay strong; you know I'm there so stay strong”. “If you need support you know you can contact me”.
8You said to her, “Oh, to be in your head just for one day to see what you have to put up with and what you have to go through, just to see if I can do anything to help”. “I'd have you with me if I could, you know that”. “Regardless of whether you tell me not to care, I'm gonna keep caring”. “This is a long-term promise. If you're having a shit time, you're still gonna contact me. I care, I care, I'm not gonna stop caring”. “I'm going to be coming here on a Saturday or Sunday up to Castlemaine, up here at school, so if you wanted to catch up”.
9“Being brutally selfish, if anything really bad happened to you and they find your emails to me, and I've known about the stuff I've known about, I'd be gaoled”. “I'm gonna miss you and we're still going to be talking for a while, for as long as you want. If you need me, ten, 15, 20 times a night, I'm there for you”.
10“I so desperately want to help you and understand what's going on”. “You put so much trust in me and I put so much trust in you that very quickly we have built this great friendship and I don't want it to stop”.
11Those are just a sample of the things you said to your victim in the week before you left Castlemaine school. The full conversations are set out in Exhibit D, the audiotaped conversations.
12You met your victim at the Castlemaine school after you moved to Warburton. You talked to her on Instagram at night. You made the conversations more personal. You continued to emotionally manipulate her and asked her if she'd ever had sex before you told her that you loved her. You talk less about her mental health and commenced exchanging inappropriate pictures. You asked if she watched pornography and talked of your sexual conquests in your younger years. All of this conduct and conversations are the basis of Charge 1, grooming.
13After a few weeks you took her in your car to a remote rural location about 10 kilometres out of Castlemaine. This was somewhere around early to mid-July of 2018. You touched her vagina with your fingers and asked her why she had not been having sex. She told you she did not want to get pregnant. You asked her if she would have sex if there was protection and she responded 'probably.' You then produced a packet of condoms and lay the back seat of your car down. You put a condom on your penis, got on top of her and introduced your penis into her vagina until you ejaculated. You told her she was very good.
14This was the first occasion your victim had experienced sexual intercourse. She got dressed, had a smoke and you drove her back into Castlemaine. She then walked home. Later you messaged her saying 'Thank you.'
15On the following week the same thing happened at the same spot. Over the next six to seven months, you regularly had sexual intercourse with her out in the bush in your car. She was 14 when you started having sex with her and turned 15 in the middle of your protracted instances of sexual penetration.
16On occasions when she was menstruating, alternative sexual activity occurred between you. I am only sentencing you for the multiple acts of penile/vaginal sex that occurred between you over that six-month period.
17On each of such occasions you used a condom, you were well aware of illegality of your conduct and told your victim that what you were doing was wrong and that it would have to end.
18The 22 January 2019 appears to be the last time you had sexual intercourse with your victim. She recalls that the weather was fine and that you lay together in the back of your car for a while. You told her that this might be the last time, before once again putting on a condom and having sex with her. She recalls this occurring at a time after you had been warned by your school not to have contact with her.
19Telephone records and GPS data from your victim's phone provided cogent and compelling supporting evidence of your victim's evidence. The phone records disclose an extraordinarily large quantity of SMS activity between your phone and your victim's phone. That activity was constant up until you went to sleep and resumed when you were awake. Your phone was located in the Castlemaine area at various weekend and school holiday dates. The SMS activity would cease for about an hour or so when both your phone and your victim's phone were in the same area. This occurred on at least 14 relevant dates.
20After October 2018, GPS data was available on your victim's phone. Not only does the telephone record evidence put your phone and hers in the same area but the GPS data shows your victim's phone returning into Castlemaine from the bush area in what could only be a motor vehicle on 4 November 2018.
21Similarly, on 11 November 2018, her phone can be tracked moving in a motor vehicle travelling out towards the liaison location, then travelling down the rural road and back into Castlemaine towards her home.
22On 22 January 2019, the last instance of sexual activity, the phone records placed your phones in similar locations and the GPS data from your victim's phone places her phone moving out of Castlemaine onto the rural road where the liaisons occurred and returning to Castlemaine about half an hour later.
23This sexual activity over the six-month period is the basis of Charge 5, the course of conduct sexual penetration charge.
24Thereafter, you commenced conduct designed to extricate yourself from the offending and from the life of your now hopelessly romantically smitten victim. You knew that teachers at both Castlemaine and Warburton were suspicious about the nature of your relationship with your victim and you had been repeatedly told to leave her alone and not to contact her.
25During your relationship, you and your victim were in regular contact, as I said, via SMS, text, email, and social media. You used Instagram, because as I understand it, communications automatically delete and do not leave an evidentiary trail.
26You and your victim exchanged explicit images on about 7 January 2019. You sent your victim a photograph of you with your pants down, holding your erect penis in your hand. That image was screenshot or photographed by your victim and saved by her. Police obtained that image, and it can be found in Tab 6 of Exhibit A.
27That image is the basis of Charge 6, transmitting indecent material by a carriage service.
28In evidence you denied that the penis was yours, the jury clearly found that it was.
29In April 2019 your victim disclosed your offending to a schoolteacher at Castlemaine. That teacher reported the disclosure, as she was required to do, to the Department of Human Services, who in turn notified the police.
30Police spoke to your victim on 26 April, and she made limited disclosure. She was unsure as to whether she wanted to make a statement because of her affection for you and her concerns as to what would happen to you.
31On 28 April 2019 you rang her. She did not answer but she rang you back a few minutes later. That telephone call was recorded, and a transcript of that call is Tab 7 of Exhibit A. Your victim said initially, 'You called me 20 minutes ago' and you immediately asked her to call from a different phone rather than the one that was hers. She said that she could not do that, and you said to her, 'What's this about going to the police?' She told you that she did not say anything, that Ms Roberts[3] had taken the phone off her and that two investigators had come to her door. You wanted to know what they said, and she told you that they had been through her phone, and they gave her choices either to make a statement, not make a statement, have it investigated or not. You asked her, 'Did you have conversations and whatever and stuff saved, did you?' And she said she did not have anything of any value. You said, 'Was there anything there at all?' 'Yeah, but it wasn't like that or anything', she said. 'From when?' you asked. 'Months ago', she said. You then gave her instructions, 'Right, say nothing, delete all comments and conversations, delete all. Delete all comments and conversations and there will be no contact, okay?' She asked you for how long and you said until her 16th birthday.
[3] A pseudonym.
32That conversation is the sole basis of Charge 7, attempting to pervert the course of justice.
33The jury rejected your evidence that you were only trying to save your job. You were clearly attempting to frustrate a police investigation into your crimes.
34The trial at which you were convicted was the fifth trial commenced in this case. The jury in the first trial was discharged in April 2022 when you gave evidence of an alibi for each of the dates the phone records put you in Castlemaine. No alibi notice had been given and both your counsel and the prosecution requested that the jury be discharged.
35The second trial on 13 October 2022 ended when a juror fell ill during the foreperson selection process. No evidence was actually commenced in that trial.
36The third trial commenced on 17 October 2022 and the jury was discharged on 25 October when a juror and then your counsel contracted COVID-19.
37The fourth trial commenced on 20 March 2023 and the jury was discharged during its deliberations on 3 April when it was revealed that one of the jurors had been conducting investigations on the internet.
38The final trial commenced on 31 July this year and you were convicted on 11 August of this year.
39The loss of the first jury was entirely your fault. Although an alibi notice was subsequently filed after that trial, no alibi has been put forward in any subsequent trial. However, the loss of one day on Trial 2, seven days on Trial 3 and 11 days on Trial 4 was not your fault. You have had the stress and expense of those trials and the waiting time in between hanging over your head and I have taken that unfortunate delay and resultant stress upon you into account in sentencing you.
40Your victim filed a victim impact statement, Exhibit A, and she bravely read it from the witness box.
41Your offending has left her emotionally isolated and alone. She states, 'I was only a child, 14 years old. Why did my childhood have to become a living nightmare because you couldn't control yourself.' She has dark suicidal thoughts and has lost her self-worth. She hates herself where you have touched her, and I take the relevant parts of the victim impact statement into account in sentencing you.
42Turning to your personal circumstances.
43You are now 54 years of age, being born in country New South Wales on 1 March 1969. You were 49 years of age when you offended. Both your parents are in their early 80s and live in Albury. You have a 53-year-old brother and a 49-year-old sister living in Albury and Wangaratta respectively.
44You enjoy the support of your partner of 20 years, Robyn Thomas. She works as a teacher's aide and has her own medical issues, suffering a stroke in 2007 and has consequential injuries. She has two adult sons who you treat as your own.
45After completing a Bachelor of Education at Newcastle University you taught in rural Victorian schools for 30 years. You continued your training throughout your career and had been promoted to assistant principal at the time you offended. When you were charged you were suspended, both with and without pay, and you eventually lost your job as a teacher. You became depressed, anxious, and stressed and undertook counselling in Swan Hill for nearly three years.
46Subsequent to your plea, I was provided with a report from Mr John P. O'Day, senior psychologist, which I will mark as Exhibit 2 on your plea. It indicates that you did a total of 47 sessions with him between October 2019 and September 2021. He has not seen you since that time. You are described by Mr O'Day as being severely depressed and moderately anxious as a result of losing your job, and as predicted you maintained your innocence of the charges against you.
47You obtained a job driving short-haul trucks in the Swan Hill area and eventually became branch manager for that company in Swan Hill.
48You have shown absolutely no remorse for your crimes. You continue to maintain your innocence. It seems clear that you cannot admit your guilt to your partner and as long as you maintain that you are innocent it seems she will continue to support you. You have, however, over the course of giving evidence in your trials, displayed yourself to be a perpetual liar. Your evidence was defensive and evasive, the jury clearly rejected most of your evidence beyond reasonable doubt. They were careful to convict you in relation to the charges where the victim's evidence was strongly supported by other evidence.
49I do not intend to set out all your lies, there is no point. On one illustrative example is your evidence at pp355 to 356 given on 28 March this year about hitting a kangaroo and your resultant insurance claim. You manufactured a tortured version of facts in an attempt to explain how you could reconcile your insurance statements with your phone records. You were not traveling from Warburton on 1 July 2018, you were in Ararat. You were not out in your car, you were asleep.
50On 25 October 2022, when giving evidence-in-chief about a document contained in Tab 15 of Exhibit A, a series of messages between you and your victim, at pp471 and following you refused to admit sending the messages that clearly show you discussing bringing your larger car to go to a spot out of town. You obfuscated and lied about the meaning of the exchange.
51In that exchange you asked your victim, 'Do you want me to come down again since we had so much fun last time? LOL.' 'Maybe, yes", she said with a cross, which you disputed was a kiss. You said, 'Good, I'll bring the silver car, more room. LOL.' A laugh and a kiss. Again, you said that it was not a kiss, it was an emoji. 'Same place as last time – kiss?' She asked. You responded, 'I have a better one, more out of town – kiss.'
52It is clear that that exchange provides a lot of support for your victim's evidence about what occurred between you.
53Your crimes are extremely serious offences, as established by the maximum penalties prescribed by Parliament. You admitted in evidence that your conduct would amount to an utter abdication of your duties as a teacher. You betrayed the trust of your employer, your fellow teachers, your victim's parents, and perhaps most importantly, your young and vulnerable victim. You were trusted to protect her; you chose to manipulate and abuse her. You induced her to love you and exploited that for your own sexual pleasure. You subsequently discarded her and have watched her be cross-examined in four separate special hearings. She has been attacked as a liar and she was denigrated in your counsel's final address. You made her feel that she had betrayed you by eventually deciding to tell the truth.
54The email she sent you on 7 April 2019, after you had told her you would not contact her, says it all. 'I was his little secret that he hid from the world and only brought me out when he was horny or in need of sex.'
55You have never been in trouble with the police before and are otherwise a man of good character. I cannot take that fact into account in sentencing you as it was that good character, the trust people had in you, that put you in a position where you could commit these offences.
56Section 5AAA of the Sentencing Act mandates that in such circumstances the court must not have regard to the offender's previous good character.
57You are to be sentenced as a serious sexual offender in respect of Charge 1, the grooming offence, because you will be convicted and imprisoned for Charge 5, the course of conduct sexual penetration of a child offence.
58I must regard protection of the public from you as the principal sentencing purpose for that charge. To achieve that result the court can impose a disproportionate sentence and there is a presumption of cumulation in respect of that charge. I do not intend to impose a disproportionate sentence. The prosecution did not submit that I should, and I can properly protect the community with the sentencing options otherwise available to the court.
59I do direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender in respect of Charge 1, grooming.
60Charge 5 is a standard sentence offence. The standard sentence is fixed by Parliament as six years' imprisonment. A standard sentence is like a signpost, like the maximum penalty for an offence that is to be taken into account in the court's intuitive synthesis in sentencing, it is not binding. The standard sentence is for a non-course of conduct offence of sexual penetration of a child. Your counsel properly conceded that with a course of conduct offence the court must impose a sentence that reflects the totality of the offending that constitutes the course of conduct.
61As I said, I do not accept your counsel's submission that your offending is limited to only three occasions of sexual penetration. A course of conduct offence of sexual penetration of a child must represent a more serious example of that offence than one individual act of sexual penetration. It is a more serious example of the offence but with the same maximum penalty.
62I agree with your counsel's characterisation of your grooming offence as mid-range. It was, as he submitted, protracted and persistent, and indeed it was successful in achieving your purpose.
63I do not accept the Charge 5 offence represents a mid-range example of the offence of sexual penetration of a child, as your counsel submitted. You had sex with your young victim on multiple occasions over six months. You were 35 years older than her, and your conduct represents an enormous breach of trust. In my view, your offending represents a serious example of the offence, your moral culpability, in my view, is high.
64I accept your counsel's submission that Charge 7, using a carriage service to transmit indecent material, represents a low-level example of that offence. The charge relates to the transmission of only one photo of your circumcised penis on 7 January 2019, and one only.
65Your offence of attempting to pervert the course of justice is a lower mid-range example of that offence. There was only one phone call, there were no threats or follow-up to the request.
66I accept that your prospects of rehabilitation are reasonable. You enjoy family support and the support of your partner. You will never again be in a position to exploit vulnerable students because you will never again be a teacher.
67Pursuant to the Sex Offender's Registration Act, you have been convicted of both a Category 1 offence, Charge 5, and a Category 2 offence, Charge 1, you are therefore subject to the reporting period under that Act for life.
68I have had regard to the sentencing snapshots available in the judicial manual in assessing current sentences practices for your offending. I am required to have regard to principles of both general deterrence and I believe specific deterrence in your case. I am obliged to express the community's denunciation of your conduct and you should be in no doubt how this court views your conduct, it was base and degenerate, you ruined the life of the child you should have protected.
69On all charges you are convicted. On Charge 1, grooming, you are sentenced to be imprisoned for two years and six months. On Charge 5, the course of conduct offence of sexual penetration of a child, you are sentenced to be imprisoned for seven years and six months. On Charge 6, using a carriage service to transmit an indecent communication, you are sentenced to six months' imprisonment. And on Charge 7, attempting to pervert the course of justice, you are sentenced to 18 months' imprisonment.
70Having regard to principles of totality and principles of cumulation, I order that one year of the sentence imposed on Charge 1 and nine months of the sentence imposed on Charge 7 be served cumulatively on the sentence imposed on Charge 5 which I declare to be the base sentence.
71That is an effective term of imprisonment of nine years and three months, and I order that you serve six years and three months before being eligible for parole.
72Can anyone tell me what the accurate pre-sentence detention is?
73MR HANCOCK: Yes, Your Honour, we've calculated it at 14 days, up to and not including today.
74HIS HONOUR: I declare that 14 days of the sentence I have just imposed has already been served by way of pre-sentence detention. Are there any disposal orders or things of that sort, Mr Prosecutor?
75MR HANCOCK: No, Your Honour.
76HIS HONOUR: All right. Nothing else Mr Hands?
77MR HANDS: No, Your Honour.
78HIS HONOUR: All right, I terminate the link.
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