R v Whalley (a pseudonym) - [2022] NSWDC 662

District Court

New South Wales

Medium Neutral Citation: R v Whalley (a pseudonym) [2022] NSWDC 662
Hearing dates: 25 November 2022
Decision date: 28 November 2022
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Term of imprisonment of 15 years with a non-parole period of 11 years and 3 months

Catchwords:
CRIME - SENTENCE - adult maintain unlawful relationship with a child - persistent sexual abuse of a child

Legislation Cited:
Crimes Act 1900 (NSW), s 66EA, s, 66EA(8), s 66C(2), s 66C(4)

Category: Sentence
Parties:
Rex (Crown)
Mr Whalley (a pseudonym) (Offender)
Representation:
Ms Prowse (Crown Prosecutor)
Ms Feiner (Counsel for the Offender)

File Number(s): 2021/00171658
Publication restriction: Statutory non publication and suppression orders made of the names of the offender, child victim, or of any other thing that might, directly or indirectly, identify either of them.

Mr Whalley, you appear for sentence today in relation to one principal offence and that is the persistent sexual abuse of a child. That principal offence (which is sequence 29) involves a contravention of section 66EA of the Crimes Act 1900 (NSW). As a result of legislative amendments in 2018, the maximum penalty for that offence was increased to life imprisonment. There is no standard non-parole period.
In addition to that principal offence, you have asked me to take into account two matters on a form 1 certificate which I have certified. Each of those matters is having sexual intercourse with a person between the ages of 16 and 17 years whilst in your care. They are respectively sequences 27 and 30.
The facts surrounding your offending are contained in an agreed statement of facts and can be summarised this morning in the following way.
When you were about 36 years of age, you began a romantic relationship with a lady who had an 11 year old daughter (“Rose”, a pseudonym).
Before long, you moved into the home of that lady and her family and, from a very early point, you began grooming Rose with gifts, clothes, money and other items that she wanted and letting her do things her mother would not let her do.
You engaged further grooming activities by referring to the father/daughter relationship that you had with her. And, quite inappropriately, you referred to this 11 year old as being “sexy” and having a “hot body”.
But, as also part of your grooming of her, you used to make negative comments about her weight.
Not only would you make sexual comments to Rose, you also showed her pornographic movies.
You married Rose’s mother in July 2003 and, from about that point on, the grooming activities became criminal conduct of the most serious kind. That criminal conduct continued over a number of years. It started when Rose was 12. In the agreed statement of facts, 14 discrete incidents are particularised for the purpose of the principal offence. However, it is important for the Court to recognise that that document refers to these 14 incidents as but “some examples of the sexual activity”.
The first example of this long running persistent sexual abuse of that child is an event that occurred in November 2003 when you, the stepfather of Rose, had a conversation with her in which you asked her whether she had had sex; whether she had engaged in cunnilingus; or whether she had been digitally penetrated in the vagina. How it could ever have been thought appropriate by anybody to discuss those topics with someone of that age, let alone in the position of trust that you were in, is difficult to understand. But, as I shall indicate, so much of what you did to this child is difficult to comprehend.
Unsurprisingly, Rose answered your question in the negative. But you were not content with hearing a negative answer. You offered to show her how “it is done” and “how to make a man happy” and you encouraged her to masturbate.
In days following this disgraceful conversation, you went into Rose’s bedroom after her mother had gone to work. Rose was getting ready for school. You removed her underwear and you touched her on her breasts and genitals and then you digitally penetrated her vagina. One of the things you said to her after you did these things was, “You will begin to enjoy it, it just takes time.” What that sentence reveals is that you knew, at that time, that that child was not enjoying that activity.
The second of the 14 examples of your prolonged sexual abuse of Rose occurred about a week later. She was told by you to go to the bathroom and lie on the bathroom floor. She was told to open her legs. You put on a condom. You touched her breasts, body and genitals and then you had penile vaginal intercourse with her, during which you ejaculated.
The third example also occurred in November 2003 when Rose was on the phone talking to her grandmother. Whilst she was talking to her grandmother, you came up behind Rose and made a signal for her to keep quiet. You knelt in front of her, placed your hand up her skirt and then digitally penetrated her vagina - all the while indicating to her that she was to continue speaking to her grandmother. Once the call was finished, you told her that she had passed your test and had done well. The brazenness of that conduct by you when there was, in effect a witness at the end of the telephone, beggars belief.
The fourth example took place on Rose’s 13th birthday, which was at the end of November 2003. It involved you digitally penetrating her and performing cunnilingus upon her.
The fifth example also took place in late 2003. Rose had gone on a school excursion to Australia’s Wonderland. On her return you: took her to her bedroom; exposed your erect penis to her; touched her breasts and body; removed her clothes; and then again digitally penetrated her and performed cunnilingus upon her.
The sixth example occurred over the summer vacation of 2003/2004 when, as I have said, Rose was 13. You went on a trip to Nowra and you took her with you. On this trip, you provided this 13 year old child with cannabis to smoke, a most dangerous drug. And, whilst you were driving to Nowra and whilst she had smoked cannabis, you digitally penetrated her vagina. This was repeated on the return trip back to Sydney, except the digital penetration on that occasion extended to you bringing her to orgasm.
The seventh example occurred in May 2004. The family had moved from one suburb in Sydney to another. You and Rose’s mother had received the keys to the new house and you took Rose there one night before the family had moved in. Whilst at these new premises, you again gave Rose cannabis to smoke, which she did, and then you had penile vaginal intercourse with her.
Unlike the earlier example of penile vaginal intercourse in which I had made an express reference to you wearing a condom, on this occasion (and in the subsequent occasion covered by the agreed statement of facts) there is no express reference as to whether or not you were wearing a condom. During the sentence hearing on Friday afternoon, the Crown conceded that it could not prove beyond reasonable doubt that you were not wearing a condom on these occasions.
The following day you took Rose back to the house. You gave her cannabis to smoke and then you took her to a room that was to become your bedroom and you again had penile vaginal sexual intercourse with her.
The eighth example occurred in late July 2004. On a night in late July 2004, your wife (Rose’s mother) gave birth to your child. On the night that that child was born, you: took Rose home from the hospital; gave her cannabis; and told her to get into bed for a “special good night”. Then you digitally penetrated her before performing cunnilingus upon her. You then made her fellate you and then you had penile vaginal intercourse with her, all the time whilst your wife was in a hospital having given birth to your child.
The following night, you again digitally penetrated Rose; performed cunnilingus on her; and had penile vaginal intercourse with her. The next night you again had penile vaginal intercourse with her and the following night you digitally penetrated her.
The ninth example involved another trip to Nowra when Rose was 14 in late 2004. Again, during the course of this trip, you digitally penetrated her.
These nine examples to date are confronting. The tenth example takes your perversion to a new level of depravity. In late 2004 or early 2005, when Rose was 14, your biological daughter from another relationship came to the home and she brought her dog with her. You said to Rose some words that indicated what you had planned and what was to come about. When you and Rose were alone in the house, you and she smoked cannabis. You got some honey from the kitchen and took Rose into the laundry. She knew what was coming and told you she didn’t want to do what you had planned. But you were not to be put off. You removed her clothes, spread her legs, inserted your finger into her vagina, performed cunnilingus upon her - and then you placed honey on her genitals and led the dog to the honey, where it started to lick Rose.
Eventually, after she protested strongly, you pulled the dog away. You said, “Maybe next time you’ll like that more. I could see that deep down you did enjoy it with all that squirming.” The activity with the dog sexually aroused you so you then digitally penetrated Rose, before having penile vaginal intercourse with her.
Rose was very close to her grandmother, the lady with whom she was speaking on that earlier occasion that I referred to. In late March 2005, that lady was in hospital. The family visited her – “family” included you, Rose and Rose’s mother (your wife). You, however, decided that you and Rose would leave the hospital, leaving Rose’s mother behind. You returned home, cannabis was smoked, you digitally penetrated Rose and performed cunnilingus upon her. You then forced her to perform fellatio upon you and then you performed oral sex on each other. This was the eleventh example of your offending conduct.
The twelfth example occurred in 2005 when Rose was 14 or 15 years old. You took her to your workplace. Whilst there, you bent her over a workbench and, for the first time, you had penile anal intercourse with her. She complained to you about the pain that she was enduring. You were in no doubt about the fact that you were inflicting pain on that child because you said, “Just go through the pain, you will come, I promise. There’s a fine line between pleasure and pain.”
The thirteenth example comprehends a collection of events in 2005 when Rose was either 14 or 15. Her mother started attending art classes one night each week, leaving you and Rose at home “alone” - but there was of course the young child. I will come back to that. Each week, at around this time, you would give Rose cigarettes and cannabis to smoke (which she did) and, on all of these occasions when that lady was at the art classes, you would engage in sexual activity with Rose including digital penetration, cunnilingus, penile vaginal intercourse and fellatio. There were many occasions when that occurred.
(Under the heading “example 13”, you and the Crown have agreed that, in addition to the art class violations of Rose on a weekly basis over an unspecified number of weeks, you would also have regular intercourse with her when you would give her your “special present” on Christmas Day, Mother’s Day, Father’s Day, your birthday, et cetera.)
The final and fourteenth example occurred on 7 November 2006. Your wife was out. You placed the young baby that I earlier referred to in a cot and, having placed the baby in that cot, you took Rose into your bedroom. Cannabis was smoked; you digitally penetrated her; and you performed oral sex on each other. But, as you were doing this, that young baby fell out of that cot and it was necessary for the child to be taken to hospital.
It is those 14 examples (and I emphasise that they are only examples of what is, on the agreed facts, a long history of persistent abuse) which constitutes sequence 29.
Section 66EA(8) of the Crimes Act requires the Court to take into account the maximum penalty for the individual unlawful sexual acts. In this regard, the ingredient offence in examples one to eight (aggravated sexual intercourse under authority with a child aged 13 years), pursuant to section 66C(2) of the Crimes Act, carried a maximum penalty of 20 years imprisonment. For examples nine to fourteen, the ingredient offence (aggravated sexual intercourse under authority with a child 14 to 15 years), pursuant to section 66C(4) of the Crimes Act, carried a maximum penalty of 12 years imprisonment.
Your sexual offending against Rose did not stop at the fourteenth example. Rose turned 16 in November 2006 at which time she obtained a learner’s driver’s license. You took her to a secluded industrial area to teach her to drive, but where you again digitally penetrated her. The agreed statement of facts also says that during driving lessons, (I emphasise the plural) you would stop the car and engage in sexual acts with Rose by either digitally penetrating her, having penile vaginal intercourse with her, or oral intercourse.
It is these various matters that I have just referred to which constitutes one of the form 1 matters, sequence 27.
After Rose’s Year 10 formal in December 2006, you picked her up from the function centre and, on the way home, you again digitally penetrated her. This is the second matter on the form 1, sequence 30.
It is appropriate to note that the incidents constituting the two matters on the form 1 are expressly noted in the agreed statement of facts to be not isolated incidents.
It is necessary for the Court to make an assessment of the objective seriousness of the principal offence for an offence of its kind. In my opinion, the objective seriousness is well above a mid-range offence.
Each matter on the form 1 is of such significance that there will need to be a meaningful increase in the sentence for the principal offence.
In circumstances not clearly defined in the agreed statement of facts (and that is not said critically of the parties) the relationship between you and Rose’s mother deteriorated, such that by February 2011 that lady left the matrimonial home and took her youngest child with her. Rose did not go with her mother; she remained with you. A most disturbing relationship continued between you and Rose until Rose was 30 years old and, during the course of that relationship, a child was born.
Again in circumstances not revealed in the agreed statement of facts, something occurred in mid-2020 which led Rose to contact her mother. Rose then revealed a great deal of information to her mother and in June 2020 not only did Rose leave your home, but she went to the police.
In early 2021 the police obtained a warrant to lawfully intercept conversations between you and Rose and ultimately, on 15 June 2021, you were arrested. You have been in custody continuously since that date solely referable to your offending against Rose.
Rose has provided the Court with a very lengthy victim impact statement which she bravely read last Friday, being her birthday. (I repeat what I said to her on Friday - the Court deeply regrets that the sentence hearing was inadvertently, at least so far as the Court was concerned, listed on that date.) The victim impact statement sets out in confronting detail all of the consequences to Rose of what you have done to her. It is clear that the young lady has been deeply psychologically damaged. But the Court must bear in mind that you are to be sentenced for the criminal conduct captured by the charges and the events described in the agreed statement of facts. Much of Rose’s damage was done by those criminal acts. But it is also clear to me that a lot of other damage was done to her after the period of time captured by the discrete criminal offending and you are not be punished for that second stage of abuse.
Your subjective circumstances came before the Court by means of: a sentencing assessment report; two reports from Dr Lennings, a psychologist; a letter from your mother; and a sworn affidavit from you - upon which you were not cross-examined by the Crown. You did not give direct oral evidence to the Court.
You are now 56 years of age.
It seems clear enough, from the reports of Dr Lennings and the letter from your mother, that you had a challenging and confronting childhood. You had no meaningful contact with your birth father and your stepfather was a violent alcoholic. However you had the benefit of the love of your own mother.
From a young age, you were involved with the criminal justice system; you were taken into custody and put into juvenile care.
Dr Lennings seems to be working under the impression that you were sexually assaulted whilst in custody on more than one occasion. Your affidavit however seems to suggest that there was one occasion that you were sexually assaulted whilst in juvenile custody. Dr Lennings is unable to explain (even taking into account your difficult upbringing and your assumed extensive abuse in custody - a dysfunctional upbringing with consequential reduced moral culpability) why it is that you offended so egregiously against your stepdaughter.
At paragraph 31 of his first report, Dr Lennings said: “While it might be considered that this experience of his abuse and likely neglect deadened his sense of responsibility and his experiences of sexual abuse in juvenile detention may have sexualised his behaviour, these do not seem adequate explanations at this stage for his behaviour.”
He further went on to say, “Until Mr [Whalley] engages in therapy, it will be speculative as to the extent to which his abusive background is contributory to his offending.”
In his second report, Dr Lennings seems to firm up his opinion that your background as a child may have had some contribution to your offending. Of some concern in that report is the fact that Dr Lenning noted that whilst you have been at Junee Correctional Facility, you have not tried to access the psychologists who are available at the gaol.
In paragraph 13 of his second report, Dr Lennings states: “Regarding the terms of reference, the nature of Mr [Whalley’s] childhood and teenage experiences have very likely contributed to the offence in as much as these experiences appear responsible for the psychological disturbance that has marred his adult years and made it possible to him to offend as he did against [Rose]. There is likely quite a complex explanation to his behaviour that goes beyond the linking of his formative life experiences with his adult behaviours. However, there remains a strong contribution to the offence of his childhood and teenage trauma.”
In short, Mr Whalley, there is no satisfactory explanation as to why you offended against Rose in the way that you did - except opportunistic lust.
And, whilst you may have had a dysfunctional upbringing as a child, that does not satisfactorily explain, to me at least, why you did what you did to Rose, other than as an opportunity (as I have said) to engage in lustful activity with that vulnerable child.
I have noted that you have had a good working career and been a hard worker. You have not engaged in abuse of alcohol. You have a long term problem with marijuana.
But, I am deeply concerned about the motivation for your offending. It was said in submissions on your behalf that I should take into account the fact that there was a long period of time between sentence and when you last criminally offended. But, of course, in that period of time you had constant and on-going access to the victim of your (prior) offending. And it was not 15 years since she left that home, it is but two years.
You have expressed no real remorse for your offending. What you said to the author of the sentencing assessment report and what you said to Dr Lennings was highly qualified and lacked insight; and there was not one word of remorse in your affidavit.

I regard your prospects for rehabilitation as being quite guarded.
When judges are called upon to sentence offenders, Mr Whalley, they have to take into account factors which seem to pull in different directions. One factor is general deterrence (that is imposing a sentence that will deter others from doing what you did). Another factor is specific deterrence (that is imposing a sentence that will deter you personally from doing again what you have done). Another factor is the protection of the community. Another factor is to encourage the rehabilitation of offenders.
But, for offences against children, the predominant sentencing consideration is general deterrence. Offending against children requires condign and severe punishment.
Notwithstanding that, I have taken into account that you have had no other offences as an adult, but that consideration is of reduced consideration in sentencing for offences against children; it is also very considerably reduced by reference to the period of time over which the offence took place.
No sentence other than a period of full time imprisonment is appropriate and the contrary was not submitted by your experienced advocate on Friday.
At the beginning of these remarks, I made reference to the fact that in 2018 Parliament had increased the maximum penalty to life imprisonment. Parliament has been very clear as to what it expects sentencing judges to do in connection with offenders like you.
Mr Whalley, for the offence of persistent sexual abuse of a child, and taking into account the two matters on the form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 20 years.
You are entitled to a discount of 25 percent because of your early plea of guilty.
Therefore, I sentence you to a term of imprisonment of 15 years
I decline to make a finding of special circumstances to vary the statutory ratio. I do not regard your need for rehabilitation as requiring a lesser period on parole and the fact that this is your first time in custody is not a very persuasive factor. Therefore, there is a non-parole period of 11 years and three months to date from 15 June 2021 and which will expire on 14 September 2032.
There will be a balance of three years and nine months to date from 15 September 2032 and which will expire on 14 June 2036.
Whether you are admitted to parole or not, Mr Whalley, is a matter for the parole board. If you do not compete satisfactorily sex offender programs whilst in custody, that is likely to be a very significant factor in the parole board’s consideration as to whether or not to grant you parole.

Decision last updated: 25 January 2023

Medium Neutral Citation:	R v Whalley (a pseudonym) [2022] NSWDC 662
Hearing dates:	25 November 2022
Decision date:	28 November 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 15 years with a non-parole period of 11 years and 3 months
Catchwords:	CRIME - SENTENCE - adult maintain unlawful relationship with a child - persistent sexual abuse of a child
Legislation Cited:	Crimes Act 1900 (NSW), s 66EA, s, 66EA(8), s 66C(2), s 66C(4)
Category:	Sentence
Parties:	Rex (Crown) Mr Whalley (a pseudonym) (Offender)
Representation:	Ms Prowse (Crown Prosecutor) Ms Feiner (Counsel for the Offender)
File Number(s):	2021/00171658
Publication restriction:	Statutory non publication and suppression orders made of the names of the offender, child victim, or of any other thing that might, directly or indirectly, identify either of them.