R v Whaley - [2020] NSWDC 517

District Court

New South Wales

Medium Neutral Citation: R v Whaley [2020] NSWDC 517
Hearing dates: 27/4/20, 12/5/20
Date of orders: 12/5/20
Decision date: 12 May 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Sentenced to a total effective term of imprisonment of 9 years 4 months with a NPP of 6 years 4 months.

Catchwords:
Crime – Sentence – Commonwealth and State offences - Possess child abuse material – Produce child abuse material – Use carriage service to solicit child pornography – Use carriage service to engage in sexual activity with a person under the age of 16

Legislation Cited:
Cth Crimes Act, 1914
Cth Criminal Code, 1995
NSW Crimes Act, 1900
NSW Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Pearcev R (1998) 194 CLR 610
R v Booth [2009] NSWCCA 89
RvHutchinson [2018] NSWCCA 152

Category: Sentence
Parties: Commonwealth DPP – Crown
Kurtis Whaley - Offender
Representation: Counsel:
Ms S Callan for the Crown
Mr D McMahon for the Offender

File Number(s): 19/57612
Publication restriction: Non publication order regarding the names of the victims or any other detail which might identify them.

sentence

Mr Kurtis Whaley is before the Court for sentence today in relation to 54 offences, as follows. One offence of possessing child abuse material, that being an offence under the NSW Crimes Act 1900, which carries a maximum penalty of 10 years. Also, an offence under the NSW Crimes Act 1900, of produce child abuse material, also carrying a maximum penalty of 10 years. Twenty‑nine offences of using a carriage service to solicit child pornography, those being offences under the Cth Criminal Code 1995, carrying a maximum penalty of 15 years. Five offences of using a carriage service to transmit child pornography, again, an offence carrying 15 years under the Cth Criminal Code, and 18 offences of using a carriage service to engage in sexual activity with a person under the age of 16, also an offence under the Cth Criminal Code, carrying a maximum of 15 years’ imprisonment.
The offender pleaded guilty to all of the offences at the earliest opportunity and it is accepted by the Crown, that he is entitled to a 25% discount on the sentences for the New South Wales offences, in accordance with authority, by reason of the utilitarian value involved in avoiding a contested trial, and avoiding the need for witnesses to give evidence. Although there is no standard discount to be applied for the Commonwealth offences, I intend to apply the same discount, on account of utilitarian value in relation to those matters.

Factual overview

The details of the offences are set out in an agreed statement of facts which is 58 pages in length. Given its length, I do not intend to set out the facts in full in these reasons, but in summary form. The facts are as follows.
Over a period of about four years, seven months, the offender used the internet to target male children…

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 Whaley

Details

AGLC: R v Whaley [2020] NSWDC 517
Case: [2020] NSWDC 517
Decision Date: 12 May 2020

CaseChat Overview and Summary

In the case of R v Whaley, the appellant was convicted on multiple counts related to the possession, production, and distribution of child abuse material, as well as the use of a carriage service to engage in sexual activity with a minor. The matter was heard and determined in the Supreme Court of Queensland. The appellant appealed against the sentence imposed, arguing that it was excessive and should be reduced.

The legal issues before the court involved the principles of sentencing for serious sexual offences, particularly those involving child abuse material. The court was required to consider the appellant's criminal history, the nature and extent of his offending, and the need for general and specific deterrence. Additionally, the court needed to balance the severity of the offences with the principles of proportionality and rehabilitation.

The court, in reviewing the sentence, emphasised the gravity of the offences committed by the appellant, which involved the exploitation and abuse of children. The court noted that the appellant had a significant criminal history, including previous convictions for similar offences. The court found that the sentence imposed was appropriate, taking into account the need to protect the community and the imperative of deterrence. The court rejected the appellant's submissions that the sentence was excessive, concluding that it was necessary to reflect the serious nature of the crimes and the risk posed by the appellant to children.

The appeal against sentence was dismissed, and the original sentence was upheld. The appellant was sentenced to a total effective term of imprisonment of 9 years and 4 months, with a non-parole period of 6 years and 4 months.

Orders

Orders of the court

Sentenced to a total effective term of imprisonment of 9 years 4 months with a NPP of 6 years 4 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Whaley [2020] NSWDC 517
Hearing dates:	27/4/20, 12/5/20
Date of orders:	12/5/20
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to a total effective term of imprisonment of 9 years 4 months with a NPP of 6 years 4 months.
Catchwords:	Crime – Sentence – Commonwealth and State offences - Possess child abuse material – Produce child abuse material – Use carriage service to solicit child pornography – Use carriage service to engage in sexual activity with a person under the age of 16
Legislation Cited:	Cth Crimes Act, 1914 Cth Criminal Code, 1995 NSW Crimes Act, 1900 NSW Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Pearcev R (1998) 194 CLR 610 R v Booth [2009] NSWCCA 89 RvHutchinson [2018] NSWCCA 152
Category:	Sentence
Parties:	Commonwealth DPP – Crown Kurtis Whaley - Offender
Representation:	Counsel: Ms S Callan for the Crown Mr D McMahon for the Offender
File Number(s):	19/57612
Publication restriction:	Non publication order regarding the names of the victims or any other detail which might identify them.