R v Whiddon

[2024] NSWDC 450

District Court

New South Wales

Medium Neutral Citation:	R v WHIDDON [2024] NSWDC 450
Hearing dates:	26 September 2024
Decision date:	26 September 2024
Jurisdiction:	Criminal
Before:	NOMAN SC DCJ
Decision:	Sentenced to a Community Correction Order for a period of 3 years
Catchwords:	SENTENCING – Penalties – Community Correction Order – Indecent assault
Legislation Cited:	s.61L Crimes Act 1900 (NSW)
Category:	Sentence
Parties:	Rex; Andrew Robert Whiddon
Representation:	Counsel: Crown N Borosh Defence: P Butterfield Solicitors: Crown: M Tracy Defence: C Kapsis
File Number(s):	2023/007467
Publication restriction:	Statutory non-publication order in relation to the complainant and anything that may identify them

JUDGMENT

1. In June 2018 the victim and Andrew Whiddon [‘the offender’] met on a dating application. They were both adults in their 30’s. The offender knew the victim was transgender. They exchanged messages. The victim went to Thailand to undergo gender reassignment surgery. They remained in contact and the offender presented as supportive.

2. They organised to meet for a date on 6 October 2018. Nothing of consequence occurred. They kissed each other upon separating at the end of the night.

3. They met for a second date on 27 October 2018. The victim was still sore from her surgery. They met for bowling. There is no suggestion alcohol was involved to explain the offending. At the end of the evening, they went to the car park where they had parked their cars alongside one another. The offender showed the victim the interior of his van as he had set up a business as an electrician and the victim shared this background. The offender kissed the victim. This was consensual.

4. The details of what occurred thereafter inform the offending. On 23 July 2024 the offender was arraigned on an offence of sexual intercourse without consent with an alternative count of indecent assault. On 29 July 2024 the jury found him not guilty of the principal offence and the following day returned a verdict of guilty on the alternative count. As this is a sentence after trial I am required to determine the facts for sentence. I am cognisant of the differing standards of proof and in particular if it is a circumstance of aggravation I am required to be satisfied beyond reasonable doubt. I am assisted by submissions. The offender gave evidence denying all aspects of the relevant touching. The victim indicated the offender unbuttoned her jeans and placed his hand inside her underwear so that he directly touched her genitals. She placed her hands up and tried to push his hands away. She said for the offender to stop, and she said no. The offender said, “I’m going to check”. I understand this to be a reference to the victim’s post-surgery genitalia. The offending stopped after a short duration when other persons were heard nearby. They each entered their own cars. The victim observed the offender to be sniffing his fingers.

5. Despite aspects being denied by the offender I am satisfied beyond reasonable doubt of each of the details. I considered the victim to be an impressive witness who was thoughtful and not prone to embellishment. The sniffing of the fingers was a distinct and unusual memory and not apt to misinterpretation. The act serves only as confirmatory of the conduct. I do not consider it offensive or derogatory or intended to be so. There is no suggestion it was intended to be witnessed.

6. This was an offence of short duration that occurred in a public place albeit one removed from observation at the time. It was forceful but without the use of undue force. It was direct contact to the genital area although consistent with the verdicts, not entailing penetration. The comment made by the offender bespeaks of some curiosity about the victim’s genitalia post-surgery. He accepted elsewhere that he was curious. I am satisfied the offender actually knew of the absence of consent given the words and conduct of the victim. Although the victim felt humiliated that does not present as the offender’s intent. The offending presents as spontaneous.

7. This is objectively a serious offence entailing an invasion of the victim’s body, at a time she was recovering from significant intimate surgery and committed by a person she had considered a romantic interest.

8. The offender sought to maintain contact the following day. This reflects his failure to appreciate how his deliberate act impacted the victim. This reflects an absence of insight and perhaps a trivialising of the seriousness of his conduct.

9. This offending is entirely uncharacteristic for the offender. He is a person of good character who was employed in his own business and as a fire-fighter. He received various commendations and recognition for his employment in the Fire Service and his voluntary involvement with Scouts. He volunteered for both the Rural Fire Service and Scouts. He has no mental health issues. He had a remarkably favourable childhood and adulthood. Both the psychological report and the Sentencing Assessment Report address this background and absence of mental health features. The observed euthymic presentation is consistent with his presentation in Court. He had and still has a supportive family. He was in the early stages of a relationship with another woman whom he is now cohabiting. They were in a polyamorous relationship and as such he was open about seeing other persons, male and female. He had not disclosed this lifestyle choice to the victim. This partner, who gave evidence in the trial and provided a letter of support on sentence, continues to provide emotional support.

10. His momentary conduct with the victim and committing the offence is entirely out of character. Given this background, and the uncharacteristic offending, I am well satisfied he is unlikely to reoffend and has very favourable prospects of rehabilitation. In reality, he is rehabilitated even though he continues to deny his conduct and therefore is not expressing remorse. Personal deterrence has minimal application.

11. The offender has engaged in psychological care although not related to the offending. The engagement with a psychologist is to address his depression which is now at a mild level after medication. A component of depression consequent to verdict is expected.

12. I accept that the verdict has already imposed sanctions on the offender. He was suspended from his employment and received the base salary without entitlements. Fortunately, he has his own electrician business to derive additional income. His involvement with Scouts and the Rural Fire Service has stopped and is unlikely to be restored. These community engagements presented as a significant part of the offender’s life and the deprivation from this interaction would be difficult.

13. The victim made a pre-text telephone call to the offender. She confronted him with the allegation. The content conveys an acceptance by him and an expression of an apology. Counsel for the offender suggests this is not demonstrative of genuine remorse given the offender’s evidence in the trial and his continued denial. Contrary to this submission, I consider it reflects genuine remorse at the time. He demonstrated acceptance and empathy. I did not regard his evidence persuasive about why he spoke as he did. It was an area where his presentation in the witness box did not accord with his words. I am minded to consider his genuineness in the phone call was subsequently compromised by the seriousness of facing a criminal charge and avoiding acknowledging his conduct publicly.

14. Offences of personal violence, particularly sexual offending, require that general deterrence and retribution be recognised.

15. There was a delay before the matter was reported. The police were advised in 2022 and the offender was arrested on 9 January 2023. The victim did not disclose the offending until mid-2022 and therefore had no material support or comfort prior to that time. That must have made her predicament all the more difficult.

16. As a consequence of this offending the victim suffered trauma. The submissions do not advance that the trauma was other than contemplated from this type of offending. I accept those submissions. The victim has outlined the impact she perceives was occasioned. The impact to her performance at work and in her volunteer role with the Rural Fire Service is supported by letters. The victim also advanced the impact to her social life and her health. I accept these impacts and that they flow from the violation of her body. These are long lasting consequences from an unplanned yet serious act. These are still experienced 6 years after the event. I accept the uncertainty over the years whilst the matter proceeded through the Courts would have delayed emotional progress. It is hoped the resolution of the charge helps the victim to move forward and address the continuing emotional and physical impact.

17. The victim wrote eloquently and with reflection of the harm occasioned from this senseless offending. The victim chose to read her Victim Impact Statement. The opportunity to confront an offender with the consequences of the offending is important. The Court benefits from being informed of this harm. I observed the offender to keenly listen to the victim reading this document.

18. Although I have consistently referred to the victim by that title to maintain her anonymity, I acknowledge that she presents as strong and capable and demonstrates a much broader personality than solely that of a victim.

19. The maximum penalty available for this offence, being an offence under s.61L Crimes Act, is 5 years imprisonment. I accept that the offence was capable of being dealt with in the Local Court which would have involved a jurisdictional limit of 2 years. That does not necessarily indicate it should have been dealt in that jurisdiction. I accept the principal count informed the progress of the matter to this Court and no determination was therefore made about appropriate jurisdiction for the offence for sentence.

20. Whilst acknowledging the limited assistance to be gleaned from statistics, I have had regard to the documents provided in the submissions.

21. The offender is convicted.

22. Both the Crown and the offender submitted that the s.5 threshold was not met. Despite this matter not reflecting remorse associated with a plea, and the offender not accepting his conduct, I accede to this joint position. I note the performance of Community Service is not available.

23. The author of the Sentencing Assessment Report recommended supervision and the proposal the offender engage in a sex offender supervision assessment.

24. Instead of imposing a sentence of imprisonment the offender is ordered to comply with a community correction order for a period of 3 years.

25. The conditions of the order are that the offender must:

1. not commit any offence;

2. appear before the court if called on to do so at any time during the term of the order;

3. submit to supervision by Community Corrections for as long as directed; and

4. undertake any programs nominated by Community Corrections, particularly arising from the sex offender supervision assessment.

26. If the offender fails to comply with the conditions of the order, further action may be taken that may require him to return to court to be re-sentenced.

27. The offender is required to report to the Community Corrections office at Cooma within 7 days.

28. The offender is directed to attend the court registry where a copy of this order will be provided and explained.

Decision last updated: 26 September 2024