R v Whale - [2020] NSWDC 383

District Court

New South Wales

Medium Neutral Citation: R v Whale [2020] NSWDC 383
Hearing dates: 27 March 2020
Date of orders: 16 July 2020
Decision date: 16 July 2020
Jurisdiction: Civil
Before: Letherbarrow SC DCJ
Decision:
1. The offender is convicted and sentenced to imprisonment for a period of 2 years and 6 months commencing on 19 June 2020 and expiring on 18 December 2022.
2. The offender is to be released after 9 months being on 18 March 2021. Such release is to be by way of recognizance of $1000 to be of good behaviour for a period of 2 years and 3 months.

Catchwords:
CRIME — Child sex offences — Use carriage service to procure person <16 years for sexual activity
SENTENCING — Penalties — Recognisance

Legislation Cited:
Criminal Code Act 1995 (Cth)
The Crimes Act 1914 (Cth)

Cases Cited:
Imbornone v R [2017] NSWCCA 144
R v Togias (2001) 127 A Crim R 23
R x X [2004] NSWCCA 93
R v Taouk (1992) 65 A Crim R 387
R v Fuller [2010] NSWCCA192
R v Elomar & Ors [2010] NSWSC 10
R v Spadina [2015] NSWSC 933
Tector v R [2008] NSWCCA 151
R v Asplund Asplund v R [2010] NSWCCA 316
The Queen v Pham [2015] HCA 39
Markarian v The Queen [2005] HCA 25
Power v The Queen [1974] HCA 26
Hili v The Queen [2010] HCA 45

Category: Sentence
Parties: Regina (Commonwealth Crown)
Tony Keith Whale (Offender)
Representation:
Counsel:
Ms D New (Crown)
Mr S Flood (Defence)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Nyman Gibson Miralis (Defence)

File Number(s): 2018/00215131

R v Whale

Remarks on Sentence

Introduction

The offender appears for sentence after being found guilty by a jury on 17 February last of one count that between 22 June 2018 and 12 July 2018, he used a carriage service to transmit communications to someone he believed was under the age of 16 years, with the intention of procuring the recipient to engage in sexual activity with himself, contrary to section 474.26(1) of the Criminal Code of the Commonwealth (the Code). The maximum penalty for such an offence is 15 years imprisonment. There is no standard non-parole period.
It should be noted that as this matter involves a Commonwealth offence, the offender must be sentenced in accordance with part 1B of the Crimes Act 1914 (Cth) (the Act).

The Evidence on Sentence

At the sentence hearing of this matter which was conducted on 27 March last, the Crown handed up its usual sentence bundle which contained:

a copy of the indictment

a document headed "Statement of Facts derived from the evidence elicited during the trial which the jury must have found proven by virtue of the guilty verdict”, dated 18 February last. This document has been settled between the parties and was provided to Community Corrections to assist in the completion of the Sentencing Assessment Report (SAR) which is dated 26 March last.

the Crown's written submissions on sentence dated 23…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Whale

Details

AGLC: R v Whale [2020] NSWDC 383
Case: [2020] NSWDC 383
Decision Date: 16 July 2020

CaseChat Overview and Summary

In the case of R v Whale, the defendant was charged with using a carriage service to procure a person for the purpose of engaging in sexual activity with a child under 16 years of age. The case was heard and determined in the relevant court. The primary issue before the court was whether the defendant's actions constituted the offence of using a carriage service to procure a person for the purpose of engaging in sexual activity with a child under 16 years of age, and if so, what the appropriate penalty should be. The court was also required to determine the appropriate conditions for the defendant's release on recognizance.

The court considered the evidence presented and concluded that the defendant had indeed committed the offence as charged. In determining the appropriate penalty, the court took into account the gravity of the offence, the defendant's criminal history, and the need to protect the community. The court found that the offence was of a serious nature and that imprisonment was necessary to adequately reflect the seriousness of the offence and to deter the defendant and others from committing similar offences. The court also considered the defendant's background and circumstances, and determined that a sentence of imprisonment for a period of 2 years and 6 months was appropriate. The court further determined that the defendant should be released after 9 months, on the condition that they enter into a recognizance of $1000 and comply with the conditions of good behaviour for a period of 2 years and 3 months.

The court's final orders were that the defendant be convicted and sentenced to imprisonment for a period of 2 years and 6 months, commencing on 19 June 2020 and expiring on 18 December 2022. The defendant was to be released after 9 months, on 18 March 2021, on the condition that they enter into a recognizance of $1000 and comply with the conditions of good behaviour for a period of 2 years and 3 months.

Orders

Orders of the court

1. The offender is convicted and sentenced to imprisonment for a period of 2 years and 6 months commencing on 19 June 2020 and expiring on 18 December 2022.

2. The offender is to be released after 9 months being on 18 March 2021. Such release is to be by way of recognizance of $1000 to be of good behaviour for a period of 2 years and 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Whale [2020] NSWDC 383
Hearing dates:	27 March 2020
Date of orders:	16 July 2020
Decision date:	16 July 2020
Jurisdiction:	Civil
Before:	Letherbarrow SC DCJ
Decision:	1. The offender is convicted and sentenced to imprisonment for a period of 2 years and 6 months commencing on 19 June 2020 and expiring on 18 December 2022. 2. The offender is to be released after 9 months being on 18 March 2021. Such release is to be by way of recognizance of $1000 to be of good behaviour for a period of 2 years and 3 months.
Catchwords:	CRIME — Child sex offences — Use carriage service to procure person <16 years for sexual activity SENTENCING — Penalties — Recognisance
Legislation Cited:	Criminal Code Act 1995 (Cth) The Crimes Act 1914 (Cth)
Cases Cited:	Imbornone v R [2017] NSWCCA 144 R v Togias (2001) 127 A Crim R 23 R x X [2004] NSWCCA 93 R v Taouk (1992) 65 A Crim R 387 R v Fuller [2010] NSWCCA192 R v Elomar & Ors [2010] NSWSC 10 R v Spadina [2015] NSWSC 933 Tector v R [2008] NSWCCA 151 R v Asplund Asplund v R [2010] NSWCCA 316 The Queen v Pham [2015] HCA 39 Markarian v The Queen [2005] HCA 25 Power v The Queen [1974] HCA 26 Hili v The Queen [2010] HCA 45
Category:	Sentence
Parties:	Regina (Commonwealth Crown) Tony Keith Whale (Offender)
Representation:	Counsel: Ms D New (Crown) Mr S Flood (Defence) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Defence)
File Number(s):	2018/00215131