R v Whiteman

[2021] NSWDC 557

District Court

New South Wales

Medium Neutral Citation:

R v Whiteman [2021] NSWDC 557

Hearing dates:

23 September 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Commonwealth offences - 11 year aggregate sentence with a non‑parole period of 7 years.

State offences - partly cumulative aggregate sentence of 10 years with a non-parole period of 6 years.

Total effective sentence 16 years with a non-parole period of 12 years.

Catchwords:

CRIME - Child sex offences - Child abuse material -Using carriage service - Using carriage service to groom person <16 years for sexual activity

CRIME - Child sex offences - Sexual intercourse with child >10 <14 - Indecent assault Aggravated sexual assault - Victim <16 years

SENTENCING - State and Federal offences – relevant considerations

SENTENCING - Juvenile and adult offending - To be dealt with “according to law”

SENTENCING - Relevant factors on sentence - Multiple offences - Accumulation, concurrency and totality - Objective seriousness of individual offences - Victim impact - Purposes of sentencing - Non-parole period - Standard non-parole period - Principles to be applied - Instinctive synthesis - Special circumstances

Legislation Cited:

Childrens (Criminal Proceedings) Act 1987

Crimes Act 1914 (Cth)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal CodeAct 1995 (Cth)

Judiciary Act 1903(Cth)

Telecommunications Act 1997 (Cth)

The Crimes Act 1914 (Cth)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Adamson v R (2015) 47 VR 268

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002,: (2002) 56 NSWLR 146

Bell v R [2019] NSWCCA 251

BP v R [2010] NSWCCA 159

BT v R [2010] NSWCCA 267

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162

Clarke-Jeffries v R [2019] NSWCCA 56

Clarkson v R [2011] VSCA 152

Dawkins v R [2018] NSWCCA 278

Dennison v R [2011] NSWCCA 114

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477

Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73

DM v R [2005] NSW CCA 181

Grube v R [2005] NSWCCA 140

Hearne v R [2001] NSWCCA 37

Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45

Hoare v The Queen (1989) 167 CLR 348

Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150

Hutchinson [2018] NSWCCA 152

Johnson v The Queen [2004] HCA 15; 78 ALJR 616

Kannis v R [2020] NSWCCA 79

KT v R [2008] NSWCCA 51

Lamella v R [2014] NSWCCA 122

MAKv R [2006] NSWCCA 381

Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25

Minehan v R [2010] NSWCCA 140

Muldrock v The Queen(2011) 244 CLR 120 :[2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600

Nelson v R [2016] NSWCCA 130

Pearce v The Queen 194 CLR 610; [1998] HCA 57

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Putlandv The Queen (2004) 218 CLR 174; [2004] HCA 8

Queen v Pham (2015) 256 CLR 550: [2015] HCA 39

R v AJP [2004] NSWCCA 434

R vAsplund [2010] NSWCCA 316

R v Booth [2009] NSWCCA 89

R v Clinch (1994) 72 A Crim R 301

R v Gavel [2014] NSWCCA 56

R v Harris (2007) 171 A Crim R 267

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v NJK [2011] NSWCCA 151

R v Porte [2015] NSWCCA 174

R v Spinks [2021] NSWSC 649

R v Tector [2008] NSWCCA 151

R v Thompson, R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

R vTuala [2015] NSWCCA 8

R v Wheeler [2000] NSWCCA 34

Small v R [2020] NSWCCA 216

Stanton v R [2021] NSWCCA 123

Tepania v R [2018] NSWCCA 247

The Queen v De Simoni (1981) 147 CLR 383; [1981 HCA 31

Wakelingv R [2016] NSWCCA 33

Way v R [2004] NSWCA 131; (2004) 60 NSWLR 168

Weininger v The Queen (2003) 212 CLR 629

Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1

Texts Cited:

COVID-19 (coronavirus) Response, Corrective Services NSW; Commission of NSW Research Monograph 34, Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, Mizzi, T Gotsis and P Poletti

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3

Category:

Sentence

Parties:

Dale Whiteman (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Justine Hall (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s):

2019/00390908

Publication restriction:

Pseudonyms have been used for the names the child complainants. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information has been removed from this version of the judgment to comply with the statute.

sentence

Pseudonym orders

1. Pseudonyms have been used for the names of the child complainants. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information has been removed from this version of the judgment to comply with the statute.

Introduction

2. Dale Whiteman is for sentence today for offences he committed against a number of young girls over 15 years. He started offending as an adolescent in 2004. His offending only ended when he was arrested and was refused bail in March 2020. At the time of the offending against them the 22 complainants were aged between 11 and 17; only one was over 16. He had physical contact with 6 victims. The others he exploited by the use of communications over the internet.

3. The 16 matters for sentence include offences against 10 individual children. There are 7 Commonwealth and 9 State offences. While individual sentences must be indicated for each matter, two aggregate sentences can be imposed for respectively, the grouped State and Commonwealth offences: s 53A Crimes (Sentencing Procedure) Act 1999 (NSW); s 68 Judiciary Act 1903(Cth);Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8.

4. The overall sentence must be just and appropriate to the totality of the offending: See below at [202] to [205]: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-308; Pearce v The Queen 194 CLR 610; [1998] HCA 57 at [40]; Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [27]

5. In relation to a number of both the State and Commonwealth matters for sentence I have been asked to take into account other offending: s 32 (2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1 or s 19BA Crimes Act 1914 (Cth) Schedule. The Commonwealth Schedules relate to offending against another 12 children using carriage services in various ways.

6. “Carriage service” means a service for carrying communications by means of guided and/or unguided electromagnetic energy: s473.1 of the Criminal CodeAct 1995 (Cth): s 7 Telecommunications Act 1997 (Cth). Here, the communications involved messages and images sent via phones or computers using the internet. Such crimes are now often referred to as ‘cybersex’ offending.

Table of offences

7. The following table sets out the matters to for sentence, the maxim penalties that applied at the relevant time and the matters to be dealt with on a Form or Schedule:

Seq	Complainant	Charge	Maximum penalty	Matters taken into account
Police Reference Number H75711282
17	Child 1	Aggravated indecent assault; s61M(1) Crimes Act 1900	7 years	Form 1 – Seq 16
16	Child 1	Incite act of indecency; s61N(1) Crimes Act 1900	2 years	Taken into account on Form 1 for Seq 17
19	Child 2	Sexual intercourse child 14-16; s66C(3) Crimes Act 1900	10 years	Form 1 – Seq 20
20	Child 2	Sexual intercourse child 14-16 – Fellatio; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 19
22	Child 3	Sexual intercourse child 14-16 – oral; s66C(3) Crimes Act 1900	10 years	Form 1– Seq 21
21	Child 3	Commit act of indecency; s61N(1) Crimes Act 1900	2 years	Taken into account on Form 1 for Seq 22
60	Child 4	Use carriage service to groom; s474.27(1) Criminal Code Act 1995	12 years	s.16BA schedule – Seq 62, 66, 68
62	Child 10	Use carriage service to transmit indecent material to child under 16yrs; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 60
66	Child 11	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 60
68	Child 12	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 60
2	Child 4	Sexual intercourse child 14-16; s66C(3) Crimes Act 1900	10 years	Form 1 – Seq 4, 5
4	Child 4	Sexual intercourse with chid 14-16 ; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 2
5	Child 4	Sexual intercourse child 14-16 - fellatio; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 2
55	Child 5	Assault with act of indecency; s61L Crimes Act 1900	5 years
63	Child 6	Use carriage service to groom; s474.27(1) Criminal Code Act 1995	12 years	s.16BA schedule – Seq 70,72
70	Child 13	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 63
72	Child 14	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 63
79	Child 7	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	12 years	s.16BA schedule – Seq 57, 58
57	Child 15	Use carriage service to harass; s474.17(1) Criminal Code Act 1995	3 years	Taken into account on s.16BA schedule for H75711282 Seq 79
58	Child 16	Use carriage service to harass; s474.17(1) Criminal Code Act 1995	3 years	Taken into account on s.16BA schedule for H75711282 Seq 79
83	Child 8	Use carriage service to groom; s474.27(1) Criminal Code Act 1995	12 years	s.16BA schedule – Seq 75, 77
75	Child 17	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 83
77	Child 18	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H75711282 Seq 83
85	Child 8	Use carriage service to engage sexual activity; s474.25A(1) Criminal Code Act 1995	15 years
80	Child 8	Aggravated Indecent assault; s61M(2) Crimes Act 1900	10 years/SNPP 8 years
81	Child 8	Sexual intercourse Child 14-16; s66C(3) Crimes Act 1900	10 years	Form 1 – Seq 13, 50
13	Child 8	Sexual intercourse Child 14-16 – cunnilingus; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 81
50	Child 8	Sexual intercourse Child 14-16 – digital; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 81
82	Child 8	Sexual intercourse Child 14-16; s66C(3) Crimes Act 1900	10 years	Form 1– Seq15, 51
15	Child 8	Sexual intercourse Child 14-16 – cunnilingus; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 82
51	Child 8	Sexual intercourse Child 14-16 – digital; s66C(3) Crimes Act 1900	10 years	Taken into account on Form 1 for Seq 82
89	Child 9	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	s.16BA schedule – Seq 59, 73
59	Child 19	Use carriage service to offend; s474.17(1) Criminal Code Act 1995	3 years	Taken into account on s.16BA schedule for H75711282 Seq 89
73	Child 20	Use carriage service to offend; s474.17(1) Criminal Code Act 1995	3 years	Taken into account on s.16BA schedule for H75711282 Seq 89
Police Reference Number H73383221
3	Child 10	Use carriage service to groom; s474.27(1) Criminal Code Act 1995	12 years	s.16BA schedule – H 75711282 seq 87, 91
Police Reference H 75711282
87	Child 21	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H73383221 Seq 3
91	Child 22	Use carriage service to transmit indecent material; s474.27A(1) Criminal Code Act 1995	7 years	Taken into account on s.16BA schedule for H73383221 Seq 3
6	Numerous	Possess Child abuse material; s91H(2) Crimes Act 1900	10 years

Guilty pleas

8. Guilty pleas were entered in the Local Court. Those pleas had considerable utilitarian benefit. Had the offender exercised his right to jury trial considerable court and prosecution time would have been expended and each victim may have been required to give evidence and be tested, possibly aggravating the harm already caused to them: R v Thompson, R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].

9. For the State matters I must reduce each indicated sentence by 25%: s 25 D Crimes (Sentencing Procedure) Act 1999 (NSW). For the Commonwealth matters the utilitarian benefit justifies a similar reduction: Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1. I will take care that the process of accumulation does not erode that benefit.

10. Whiteman has been custody since 4 March 2020. The sentences will commence on that date.

The term “victim”

11. The term “victim” has been used in this judgement and in the proceedings. It would wrong if anyone in the community used that term in a pejorative sense. In a number of Victim Impact Statements a child indicated that they felt some guilt, shame or blame for what occurred. They should not. Each victim is a survivor of a sexual crime. Each has come forward to expose what was done to them. Each is to be commended for doing so. Each, when a young girl, had crimes committed against her. Each has complained of those crimes. They did nothing wrong. There is only one criminal here and only one person for sentence – Dale Whiteman.

12. The complainants have asked that their anonymity and privacy be respected. They will be referred to by a number to distinguish one from the other and to maintain their anonymity and privacy. That is their right. Their wishes and their humanity should never be undervalued by the use of label of convenience such as “Child ‘X’ ” or “victim”.

13. The aggregate sentences to be imposed and the individual sentences indicated are only one measure of the seriousness with which the court views the crimes committed. For those victims whose matters were placed on a Schedule; while I cannot impose an individual sentence for those crimes they have, as the law allows, been taken into account.

14. I trust each complainant appreciates that in sentencing an offender a court must take into account all relevant considerations. This means a direct correlation between the harm done to them individually or collectively and time to be served by Whiteman is impossible. A victim should never equate or measure her injury with the punishment actually inflicted on the offender.

Agreed facts

15. There were comprehensive agreed facts before the Court. I have edited them to reduce their length and remove identifying and unnecessarily sexual details.

Child 1 - born 1991

Seq 16: Incite act of indecency w/person under 16

(Form 1 referable to seq 17)

16. Sometime in 2004, Dale Whiteman met and befriended Child 1. She was between the age of 12 and 13 during the relevant period. He was aged between 15 and 16. Their families were friends. Both Whiteman and Child 1 regularly attended sport matches. Whiteman commenced sending messages via Facebook to Child 1. During the next few months, he made her feel comfortable with the conversation and due to their relationship she thought they were friends.

17. Child 1 told police that within a month of the communications beginning he asked her about her underwear and asked her to send him photographs of her in her underwear. She responded by describing her underwear.

18. Whiteman also asked her if she ‘preferred to wear G-string or full underwear’ and to take a photograph of herself wearing them.

Seq 17: Aggravated indecent assault

19. One night in 2005 Child 1 and Whiteman communicated via social media. She told him her parents were out. He drove to her house. They spoke out the front. He was inside his car while she leant on the driver’s door.

20. They were talking through an open window when he asked her to reach into the car and grab his penis. She said ‘no.’ As she started to retract her hand from the door he grabbed it and pulled it into the car towards his penis. She pulled her hand away. She told him her stepfather was approaching and he drove away.

Seq 57: Use carriage service to harass

(s16BA Schedule referable to H72711282 seq 79)

21. From then on Whiteman messaged Child 1 over social media to the point she felt ’badgered’. She told police he would ‘continue until I gave in and did what he wanted’. He played games with her; he would ask ‘if you had a chance what would you do to me?’ She told Whiteman what she would do. He responded that he would undress her and perform oral sex on her.

22. He also asked her; to send him ‘dirty messages,’ to tell him what she was wearing, and for photographs of her in her underwear or naked. Sometime in 2006 she sent him two photographs: one of her wearing a bra and another of her wearing a G-string.

Child 2 - born 1991

23. In 2006, Whiteman, then aged between 17 years and 18 years met and befriended Child 2, aged between 14 years and 15 years during the relevant period. She was a friend of Child 1.

24. Over the following months, he sent Child 2 a number of text messages which made her feel ‘good,’ ‘special’ and ‘wanted.’ She felt he was a good-looking older guy and believed he was ‘interested in her’.

Seq 19: Have sexual intercourse with child >=14 & >16 (penile/vaginal sexual intercourse)

Seq 20: Have sexual intercourse with child >=14 & >16 (fellatio) (Form 1 referable to seq 19)

25. The pair began sending each other text messages and arranged to meet up. One night, between 1 January and October 2006 after 11.30pm, Child 2 snuck out of her home and met Whiteman who was waiting in his car.

26. He drove her to a nearby beach. They walked down to the sand and lay on a blanket. Child 2 performed oral sex on him. The two then engaged in penile/vaginal sexual intercourse. Child 2 was 14 at this time.

27. He continued to message Child 2 for a short period before ending all communication with her.

Child 3 - born 1993

28. In 2007, Whiteman (then 19 years) met and befriended Child 3 at a social activity where both participated.

29. During the next few months they exchanged private messages over social media. He made her feel good about herself and excited that an older male was showing her a lot of attention.

30. About a month after meeting they met after the social activity and went to a park across the road and kissed.

Seq 21: Commit act of indecency with person under 16 (Form 1 referable to seq 22)

31. In June 2007, about a month after Child 3’s 14^th birthday they arranged to meet up after messaging ‘all night’. After her father had gone to bed she snuck out of her home and met Whiteman, who was waiting in his car nearby.

32. They sat inside. He kissed her and asked her to perform oral sex on him. She did not agree to this. He asked her to touch his penis. She was hesitant, but she did not want to lose his attention. She ‘felt that it was something [she] needed and wanted to do.’ She placed her hand on his erect penis and masturbated him until he ejaculated. She got out the vehicle a short time later and returned home.

Seq 22: Have sexual intercourse with child >=14 & >16

33. Within a week, he contacted Child 3 and the pair arranged to meet. She again waited for her father to go to bed. She then snuck out of the house and met him in his car. There he kissed her and asked her to perform oral sex on him. She did not want to but felt if she did not, she would lose his attention. She performed oral sex on him. As she ‘had never done anything like this before’ he moved her head and hands ‘to do what he wanted.’

Child 16 - born1994

Seq 58: Use carriage service to harass (s16BA Schedule referable to H72711282 seq 79)

34. In 2007, Whiteman (aged between the age of 18 and 19) met and befriended Child 16 (aged between 12 and 13). She met him through a friend who he dated at the time. She would also go to a social activity where Whiteman participated.

35. During this time, he sent private messages through Facebook Messenger to Child 16. She told police he would start off with ‘general conversation’ but after a while would ‘always’ ask ‘sexual questions’. In particular, whether she wore G-strings or the colour of her bra.

36. He asked her to send him photographs of her wearing her swimmers. She told police ‘if Dale ever asked me for something and I said ‘no’ he would nag me and try and get it from me any way…. Eventually Dale just stopped messaging me.’

Child 19 - born 1992

Seq 59: Use carriage service to offend (s16BA Schedule referable to H72711282 seq 89)

37. In 2007, Whiteman (between 18 and 19) met and befriended Child 19 (aged between 14 and 15). She met him through their social activity.

38. When she was 14 years old, he began to send numerous text messages to her about her underwear. He would ask questions such as, ‘Do you feel sexy in your G-string’ or ‘Have you started wearing G-strings yet?’ She assumed he was trying to be funny and did not think too much of it.

Child 4 - born 1994

Seq 60: Use carriage service to groom child under 16

39. During 2008, Whiteman was friends with the brother of Child 4 (aged between 13 and 14). Her brother and Whiteman were involved in the same sport. Whiteman was aged between 19 and 20.

40. During this period Child 4’s parents took Whiteman in and allowed him to sleep at their house almost every weekend. He started a legal relationship with Child 4’s older sister but it ended shortly after it commenced.

41. He began to send text messages and emails to Child 4. During the text and email exchange, he struck up a general conversation, which progressed to topics of a ‘sexual nature’. He told her he loved her and that he could ‘see us having a family together’. He asked her if she had sex before or if she was interested in sex. He ‘took it upon himself’ to ‘explain sex’ to her and described what he ‘wanted to do’ to her. He asked if she wore G-string underwear. On one occasion Whiteman sent Child 4 pictures of his penis via a text message.

42. During the time that they communicated, Child 4 became ‘really comfortable’ around him and felt ‘special.’ She understood the conversations needed to be a secret as she was fourteen and he was significantly older. She felt she could not be without him. She felt loved by him and ‘could not survive without him.’

Seq 2: Have sexual intercourse with child >=14 & >16

43. In 2008 Whiteman returned to the family home and sent a text message to Child 4, which asked her to come out to see him in the lounge room.

44. She lay next to him on a mattress. He removed her pyjama bottoms and had penile/vaginal sexual intercourse with her. The next morning, she noticed she was bleeding from her vagina.

45. She disclosed what had occurred the night before to school friends. The friends did not tell anyone.

Seq 4: Have sexual intercourse with child >=14 & >16 (Form 1 referable to sequence 2)

46. On in 2008 Whiteman drove Child 4 to a beach where they had penile/vaginal intercourse.

Seq 5: Have sexual intercourse with child >=14 & >16 (Form 1 referable to sequence 2)

47. During this same period Child 4 went to the cinemas with friends. Whiteman entered the theatre halfway through the movie and the pair moved to the rear seats. There she performed oral sex on him. He did not ejaculate.

48. The ‘relationship’ lasted approximately 10 months and ended when Child 4 was still aged 14 . She stated he made her feel loved and felt she could not be without him. She told police she was curious and wanted to have sex with him.

Child 5 - born 1992

49. Sometime between 2005 and 2006, Child 5 (aged 12 to 14) met Whiteman (aged 16 to18) through a social activity.

50. He also knew her sister and brother through a local sport’s club. He attended their home on a regular basis. Her parents had separated and her father no longer lived with the family.

51. She saw him as father/older brother figure and the pair became good friends. She stated Whiteman was her ‘best friend.’ They would regularly go for drives in his car and talk.

Seq 55: Assault with act of indecency

52. Sometime around the end of August 2009, Child 5 (aged 16) went for one of her regular drives with Whiteman (aged 21). He parked the car in the carpark at a beach, where they pair talked for a long time. He told her he wanted to ‘play up on his girlfriend and cheat on her.’ She told him she did not want to.

53. He leant forward and placed his hand on her breasts and ran his hand along them. She pushed his hand away. He then moved his hand to the top of her jeans and placed it underneath her underwear directly on her genitals. She said, ‘No.’ She pushed his hand away. She felt he had taken advantage of their friendship.

54. He drove her home. A number of months later Child 5 told her mother about what occurred and the matter was reported to police. Child 5, however, declined to provide a statement at that time.

Child 10 - born 1999

Seq 62: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60)

55. During 2011, Whiteman befriended Child 10’s family. He was friends with her brother as they were involved in the same sport and would regularly visit her home. She was aged between 11 and 12. He was aged between 22 and 23.

56. In 2011, Child 10 created a Facebook account and shortly after Whiteman began to send her private messages. Over the next few months, he made her feel comfortable with the conversation; she thought of him as a brother.

57. In 2012, Whiteman (then aged between 23 and 24) turned the conversation to a sexual nature. He asked Child 10 (aged between 12 and 13) on numerous occasions if she ‘had to wear a G-string’ and if she enjoyed wearing that type of underwear.

58. Sometime between 2012 and 2016, he asked her sexual questions and convinced her to participate in a video call with him. During this video call he convinced her to expose her bra. He captured these acts as screenshots and saved them on a hard drive which was later seized by police.

59. As Child 10 got older, the conversations became more sexual. She began to ignore messages he sent.

Child 6 - born 1998

Seq 63: Use carriage service to groom child for unlawful sexual activity

60. During 2011, Whiteman (between 22 and 23) was Child 6’s neighbour. She was aged between 12 and 13.

61. Whiteman built a rapport with Child 6 and her family. He befriended her older brother. He would regularly play with the two children after school and attend their family home. During this period Child 6’s family became friends with Whiteman and he would visit their house regularly.

62. In 2011, Child 6 created a social media account. She was in Year 7 at this time. Shortly after this occurred, he sent her messages via Facebook Messenger. During the next few months, he made her feel comfortable with the conversation and due to their relationship, she thought of him as a brother; there was no concern over the contact.

63. Whiteman later turned the conversation to a sexual nature. He asked her if she had a boyfriend and if she had kissed or ‘did anything’ with a boy. She said ‘no’ and he replied, ‘Oh I could teach you.’ He asked what her bra size was and what type of underwear she wore. He asked her to describe her underwear or to send him photographs. She ‘felt weird’ talking about her underwear so sent a number of photographs to him of her in various underwear or pictures of her (unworn) underwear.

64. As she was 12 years old and he 22 she became concerned and confused and spoke to her mother. As a result Child 6 did not engage in any further contact with Whiteman.

Child 11 - born 1998

Seq 66: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60)

65. Child 11 knew Whiteman from a young age. In 2011, Whiteman (between 22 and 23 years) began to send Child 11 (aged between 12 and 13) messages over Facebook Messenger. She told police she would ‘hear from him nearly every week, it got to a point it was daily.’ He commented on photographs she posted on social media.

66. The messages became ‘more sexual.’ He complimented Child 11 on her photographs and made comments about her breasts or body. She would ignore him. She felt he was a ‘pest.’ She told police that despite her lack of response, ‘the messages continued and got more intense.’ The content of the messages moved to Whiteman asking her to send him photographs of herself in a bikini ‘or something similar.’

67. He continued to message her until 2017, when she ‘blocked’ him and changed her name on social media. She felt the messages he sent were ‘completely inappropriate, weird and creepy.’

Child 12 - born 1999

Seq 68: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60)

68. In 2011, Whiteman (aged between 22 and 23) met and befriended Child 12 (aged between 11 and 12). He met her through her friend (who is also a child victim). Child 12 would to go her friend’s house after school and on weekends. He would play with the girls out the front of the house.

69. During this period he began to send private messages to Child 12 over social media. Over the next few months, she felt she could trust him. He later turned the conversation to a sexual nature.

70. In September 2011, he asked Child 12 an explicit question and then ‘How’s your love life’? Later in September 2011 Child 12 told Whiteman she was dancing in a beached themed school concert. He asked if she going to wear a bikini. She replied ‘no’. In October 2011, Whiteman messaged her and stated her photo ‘makes it look like u have big boobs’ and later told her not to ‘get a big ass’. Whiteman then asked her if she had ‘shaved her legs yet.’

Child 13 - born 1999

Seq 70: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 63)

71. In 2011, Whiteman (aged 22 to 23) met and befriended Child 13 (aged between 11 and 12). He met her through her friend (another child victim). He would play with the girls out the front of the friend’s house.

72. In 2011 when Child 13 was 12 years old, he sent private messages to her over Facebook Messenger. She told police he conversed ‘normally’ at first. She felt he was ‘cool.’ She ‘trusted him’ and ‘thought he was a responsible adult.’

73. He progressed from complementing her on her online photographs to asking Child 13 sexual questions, such as “got yourself a boyfriend yet pretty?’ And how she kissed her boyfriend. Or if she would ‘let a guy grab her boobs’. He asked what her ‘boob size’ was. And later wrote, ‘…older guys always go for younger girls. And your (sic) pretty...’ He later asked her (in a foreign language) ‘Do you still wear a G-string?’

74. In 2012 Child 13’s mother found the messages. She contacted Whiteman and told him to stop messaging her daughter.

Child 14 - born 1996

Seq 72: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 63)

75. In 2011, Whiteman (aged between 22 and 23) was still involved in a sport in the Illawarra. At this time Child 14 (aged between 14 and 15) joined the sport.

76. During Child 14’s first season Whiteman added her as a friend on Facebook and regularly sent her private messages which contained ‘simple pleasantries’. Early in the 2012 season, Child 14 (then 15) needed a lift to training. Whiteman offered to take her and picked her up in his ute. From this point, he messaged Child 14 regularly and often drove her to training.

77. Child 14 told police she became infatuated with Whiteman and enjoyed the attention given to her. He continued to message her over Facebook messenger and by text message which ‘gradually’ turned sexual. Whiteman would ask her about her underwear and if she was wearing a G-string.

Child 20 - born 1998)

Seq 73: Use carriage service to offend (s16BA Schedule referable to seq 89)

78. In 2012 or 2013, Child 20 (aged between 14 and 15) commenced with the sport in the Illawarra. Through the sport she met Whiteman (aged between 24 and 25 years) who was a senior in the sport.

79. In 2013 he began to message her over Facebook Messenger. Child 20 cannot remember what was said in those messages, however, recalled the conversation was general and about the sport.

80. In November 2015, Whiteman (aged 27 years) sent messages to Child 20 (then aged 17). One read, ‘Can totally see the outline of your G-string in your xxx photo lol. Oops… I’m sure guys won’t complain though, don’t worry lol… Can u notice it now lol.’ They included comments like ‘Love you…’ and ‘…yes u r cute’. ‘U looked very beautiful for your formal. Hope u had a great time xx’

81. Child 20 felt the messages were inappropriate and did not respond.

Child 17 - born 1998

Seq 75: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 83)

82. In 2012, Whiteman (aged between 23 and 24) remained involved in the same sport as the father of Child 17 (aged between 13 and 14).

83. During this period Child 17’s family became good friends with Whiteman and he would regularly visit their home. He referred to Child 17 as his ‘little sister.’

84. Child 17 created a Facebook account in 2011 and an Instagram account in 2012. The complainant ‘does not recall’ when Whiteman began to message her on social media, however, believes it was ‘around the time when her older sister told [Whiteman] she was not interested in him’ sexually.

85. Child 17 told police he sent messages to her which started as general conversation about family and sport. She never considered it to be wrong as he was a family friend who had stayed over at her house on a number of occasions.

86. He slowly turned the conversation to a sexual nature and asked her questions such as whether or not she had been kissed.

Child 18 - born 2004

Seq 77: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 83)

87. Child 18 is the younger sister of Child 11.

88. In December 2015, Whiteman (aged 27) began to contact Child 18 (aged 14) over Facebook Messenger. At the time Child 18 had a ‘profile picture’ which showed her wearing a bikini. He asked Child 18 how old she was. She answered ‘14’. He wrote, ‘Well I don’t wanna be creepy… but r u actually that big at 14 [referring to her breasts]… When I was 14 girls were like cardboard lol.’

89. During the same conversation he said, ‘Push up bra does wonderful things…’ and ‘Your not into g-strings and shit yet r u… bit young for that lol’. Child 18 replied ‘ahahaha na’. Whiteman replied, ‘na as in ‘I’m not too young’, or no I don’t.’ He was ‘very persistent with constant text messages. If Child 18 did not reply, he would ‘send another message and another message’.

90. The questions made Child 18 feel uncomfortable and she attempted to minimise contact with him.

Child 7- born 2003

Seq 79: Use carriage service to transmit indecent material child under 16

91. From 2010 until 2017, Child 7 was involved in a social activity with a girlfriend of Whiteman at the time.

92. In 2017, Child 7 (aged between 13 and 14) received a message over Snapchat from Whiteman (then aged 29). He introduced himself as ‘Dale Whiteman’ and told Child 7 who he was.

93. In late 2017, Whiteman informed Child 7 that he had a friend ‘Emma’, who was an Australian Model and could provide her clothes that agencies give her. Child 7 wanted the clothes and received “Emma’s” mobile phone number from Whiteman.

94. A couple of days later Child 7 received text messages from ‘Emma’ from mobile phone number … 625. The text stated she was ‘Dale’s friend and was a model looking to ‘get rid of some clothes’. Child 7 told ‘the model’ she would like the clothes, however, she never received them. Child 7 told Whiteman about this and Whiteman ‘said something about them getting lost in the mail.’

95. Over the next couple of weeks, Child 7 received messages from Whiteman and ‘Emma’ however, never at the same time. If Child 7 failed to reply to either ‘person’, she received messages stating ‘Where were you?’, ‘Why didn’t you reply to me? or ‘Why are you ignoring me?’ She began to feel ‘a bit weirded out’ when both would ‘do the same thing.’

96. Child 7 decided to ‘block’ Whiteman’s mobile phone number. He then messaged her from a separate Snapchat account. Child 7 did not reply. He wrote to Child 7 on Instagram and asked, ‘Why did you block me?’ She then blocked him on Instagram.

97. Despite this, Child 7 continued to communicate with ‘Emma’. ‘Emma’ asked her what type of underwear she wore and if she wore G-strings. Child 7 told police ‘a lot of the time I could not be bothered explaining it so I would send a photograph of underwear or a photo of me in a bikini. Upon receiving a photograph of Child 7 in a bikini, ‘Emma’ responded that she ‘could be a model’.

98. Child 7 later began to feel weird about ‘Emma’ asking her about her underwear and felt harassed. She blocked the phone number and deleted all of the messages.

Child 8 - born 2003

Seq 83: Use carriage service to groom child under 16

99. From 2014 until 2018, Whiteman attended numerous functions with his then girlfriend. Child 8 was present at a number of these functions. She was a family friend of the girlfriend. Whiteman built a rapport with Child 8 over this period.

100. In August 2018, Whiteman (then aged 30) began to contact Child 8 (then aged 14) over Instagram. Child 8 was going through a difficult period in her life. Child 8 felt alone and described this time in her life as a ‘pretty low spot.’ She enjoyed her interactions with him. They made her feel happy and that ‘he was there for me’. Child 8 felt ‘special’ and distracted from what was going on around her in life.

101. He began to ask her about her level of sexual experience and if she had any G-string underwear. She answered that she did. He told her that he could fulfil her needs and make her feel good.

102. In 2018, Child 8 turned 15 and had a birthday party. She posted a photo on social media of her with a birthday cake with the number ‘15’ on top. Whiteman sent her a private message on Instagram where he wished her a happy birthday and words similar to ‘Have a good night hope you get a root, mine would be better.’

103. He began to request Child 8 send him photographs of her in a bikini and G-string underwear. At first, she was hesitant and did not want to, however, he ‘kept on bugging’ her about it and ‘would not leave it alone until’ she ‘finally gave in and sent him some pictures.’ Over the following months, she sent him photos of her wearing a bikini or G-string. The images Child 8 sent were stored on the storage device seized from Whiteman on the 11 December 2019 in a folder with her name on it (part of seq 6).

104. Over Instagram, he also sent Child 8 photographs of his penis and videos of himself masturbating to the point of ejaculation. She felt uncomfortable and did not want to look at them. The images/videos were time limited and would disappear after they had been opened.

Seq 85: Use carriage service to engage in sexual activity with child

105. On one occasion, Child 8 ‘facetimed’ (made a video call over Facebook Messenger) to Whiteman. He masturbated, however she did not pay attention and messaged her friends. He ended the conversation.

Seq 80: Aggravated indecent assault

106. In early November 2018, Whiteman asked Child 8 (then 15) to meet him in person. At first, she declined, however he stated he was suicidal and feeling depressed. He stated he was sad about the end of his relationship with his girlfriend and that a friend had committed suicide. Thinking they would only talk, Child 8 agreed to meet at a train station.

107. At the train station Child 8 got into Whiteman’s car and was driven to his unit. Inside the unit, he kissed her and touched her breasts. He grabbed her around her legs and carried her over his shoulders into his bedroom and put her down on the mattress. Whiteman undressed himself. She undressed herself and he lay next to her, touched her breasts, kissed and rubbed her legs.

108. She told him she needed to go home and he took her back to the train station. He messaged her and asked to meet up again. He told her she made him feel so much better.

Seq 13: Have sexual intercourse with child >=14 & >16 (cunnilingus) (Form 1 referable to seq 81)

Seq 50: Have sexual intercourse with child >=14 & >16 (digital penetration) (Form 1 referable to seq 81)

Seq 81: Have sexual intercourse with child >=14 &>16 (penile/vaginal sexual intercourse)

109. In mid-November 2018, Whiteman asked Child 8 to meet him as he was feeling depressed. She caught the train to a train station, got into his car and was driven to his unit.

110. In the unit Whiteman walked her to the bathroom where he undressed her and placed her in the shower. He performed oral sex on her. As this occurred he inserted three fingers inside her vagina and moved them in and out.

111. After the shower he led her to his bedroom. He placed a condom on his penis and had penile/vaginal intercourse with her. Afterwards, she noticed that she was bleeding from her vagina.

112. He drove her back to the train station. On the drive, her told her that she could not tell anyone about having sex with him. He later messaged her and told her the sex ‘made him feel good’ and asked when they could do it again. She declined as she was concerned her mother or his girlfriend would find out about what had occurred.

Seq 15: Have sexual intercourse with child >=14 & >16 (cunnilingus) (Form 1 referable to seq 82)

Seq 51: Have sexual intercourse with child >=14 & >16 (digital penetration) (Form 1 referable to seq 82)

Seq 82: Have sexual intercourse with child >=14 & >16

113. Whiteman continued to message Child 8 over social media and they arranged to meet again. He wrote and told her what he wanted to do to her. Child 8 began to have a hard time at school and started to skip classes. She messaged him about it and he suggested they meet up ‘because he could make me feel better’. In December 2018, Whiteman arranged to pick her up from a train station. They met and he drove her to his unit. There he told her to close her eyes and put her hands behind her back as it would ‘make her feel better’.

114. He led Child 8 to his bed by the hand. He removed her clothing and his. He performed oral sex on her and inserted three fingers into her vagina which he moved back and forth.

115. He placed a condom on his penis before having penile/vaginal intercourse with her.

116. Afterwards the pair got dressed and he drove her back to a train station where she caught the train home.

117. Child 8 began to question his motives and ‘blocked’ him on all social media platforms. She ceased all contact with him despite his efforts to contact her.

118. In early 2019, Child 8 contacted Whiteman over Facebook Messenger and said, ‘You knew I was fifteen why did you take advantage of me’. He replied that it was a low point in his life. She again ‘blocked’ him on Facebook Messenger.

Child 21 - born 2003

Seq 87: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 3)

119. In 2018, Whiteman was 29 or 30 and a senior in his sport. In this year Child 21 (aged 14 or 15) joined the sport as a junior.

120. Through the sport Child 21 met Whiteman. He was responsible for training and assessing her and attended the complainant’s games to guide her. She looked up to him for guidance and support.

121. He began to message Child 21 over Facebook Messenger. At first, the messages were about the sport, however, he soon escalated the volume of messages and would message her daily asking how her day was. Child 21 tolerated the contact as she believed he was her ‘sport boss’ and did not want to be rude.

122. He would then ask her questions such as, ‘wearing a G-string?’ He would also ask the complainant for photographs of her G-strings. When she asked ‘why’ he said, ‘I just want to know the brand.’ She attempted to minimise contact with him, however, she felt obligated to answer at times due to his position with the sport.

Child 9 - born 2005

Seq 89: Use carriage service to transmit indecent material child under 16

123. From 2014 until 2018, Whiteman attended numerous functions with his girlfriend. Also present at a number of these functions was Child 9, a family friend of the girlfriend. He built a rapport with Child 9 over this period.

124. In 2018, Whiteman (then aged 29 or 30) contacted Child 9 (aged 12 or 13) over Snapchat. He told Child 9’s mother that his boss’ daughter, ‘Hailey’ was an Australian model and could provide Child 9 with clothes. Child 9’s mother agreed to receive clothing from ‘Hailey’ to give to child 9. He provided Child 9’s mother with ‘Hailey’s’ phone number. This number was registered to Whiteman.

125. In February 2019, Child 9 received text messages from ‘Hailey’. On one ‘Hayley’ asked Child 9 what her bra size was, if she wore G-string underwear and if she would wear a G-string the next day. In another message ‘Hailey’ asked Child 9 if she had sex with a boyfriend and how she groomed her pubic hair.

126. Between February and August 2019, ‘Hailey’ regularly texted Child 9. At this point Child 9 believed ‘Hailey’ was a teenage girl. About the time these messages were sent, Child 9 had ‘blocked’ Whiteman from contacting her on any social media.

127. ‘Hailey’ continued conversations with Child 9 and asked her a number of sexual questions. ‘Hailey’ posted Child 9 six pairs of G-string underwear and other clothing for her to wear. Once Child 9 received the clothing, ‘Hailey’ asked for photographs of Child 9 wearing the clothing and only the underwear. She sent Hailey/Whiteman nine photographs of her wearing a G-string.

128. Child 9 told police she did not enjoy talking to ‘Hailey’ as she felt the requests for photographs were ‘weird’.

129. Whiteman stored these images on a portable hard drive in a folder labelled ‘Child 9’ which was later seized by police (seq 6).

Child 22 - born 2003

Seq 91: Use carriage service to transmit indecent material to child under 16 (s16BA Schedule referable to seq 3)

130. In 2018, Whiteman (then aged 30) met Child 22 though their sport where he was a senior and she was a junior.

131. Shortly after Child 22 commenced in the sport he began to send her private messages over social media. Over the following months, he made her feel comfortable with conversations about the sport.

132. In May 2019, Whiteman asked Child 22 questions of a sexual nature over Messenger. He asked her questions about her boyfriends and whether she had kissed boys. He also told the her ‘she should move closer so we can hang out more’ and told her he would ‘miss’ her when she was away. He later sent a message to the complainant which said, ‘I love you ’.

133. The complainant thought he was her friend and trusted him. The questions made her feel uncomfortable and she questioned why a male of his age would ask her about such things.

Child 10 - born 2006

Seq 3 – Use carriage service to groom child under 16

134. Whiteman and Child 10 (then 13 years old) have known each other since 2011, through Child 10’s father who was involved in the same sport as Whiteman. Child 10 would attend matches on occasions.

135. In late 2018, Child 10 became estranged from her father. Sometime in the middle of 2019, Child 10 created an Instagram account. Whiteman appeared as ‘people you might know’. Child 10 recognised him and requested to ‘follow’ him, which he accepted. She intended to ask him about her father. They chatted on a private message thread. She asked him questions about her father.

136. In the coming weeks and months, Whiteman slowly turned the topic of conversation to a sexual nature. He asked Child 10 for photos of her wearing a wet white t-shirt. She replied that she did not own one. He then asked for photographs of her wearing only a bra several times. She succumbed to the constant requests and sent him photographs of her in a bra on three separate occasions.

137. During this period, she constantly reminded him that she was thirteen years old and that he was thirty-one. She asked why he wanted these images and explained her discomfort with the requests. He played down these concerns.

138. After he received photographs of her in her bra he told her he wanted to touch her breasts. He encouraged her to touch her breast and describe how it felt. He described to Child 10 the sexual acts he wished to engage in with her. He requested she practice oral sex.

139. He sent her an undertaking that described the sexual acts he wanted her to agree to:

“I, Child 10, fully consent to allowing Dale Whiteman to … I will also wear a g-string if requested and supplied.”

140. He and Child 10 planned to meet. Several meetings were arranged, however, she insisted on a friend coming with her. Once this was known, he cancelled the plans.

Investigation and arrest

141. A number of the Child 10's school friends became aware of these conversations and notified their Principal, who then contacted police. Police attended the school and obtained evidence of the conversation between Whiteman and Child 10.

142. On 11 December 2019, police executed a search warrant at Whiteman's residence. There, police cautioned him and placed him under arrest. Police seized his mobile phone which also contained evidence of the messages with Child 10 and three images of her wearing a bra. Police also seized a USB storage device which was later analysed. He was taken to Wollongong Police Station where he agreed to participate in an electronically recorded interview, where he made both admissions and exculpatory comments. He was charged with offences relating to Child 10 and later granted bail.

Search warrant

Seq 6: Possess Child Abuse Material

143. On 26 February 2020, police examined items seized from the search warrant executed on the 11 December 2019, including a USB storage device inserted into Whiteman’s laptop. It had a folder labelled ‘Work Pics’, inside this folder there were seventy-five (75) other folders.

144. One folder labelled, ‘Randoms’ contained a number of images of naked juveniles. 11 images were deemed to be Child Abuse Material.

1. Three images were identified as Category One on the Interpol Baseline.

2. Eight images were identified as Category Two on the Interpol Baseline.

All eleven images were of unidentified children.

145. Seventy-one (71) folders were labelled with individual female names representing a different female and each folder contained different images. A majority of the folders contained screen shots from social media accounts of the female labelled on the folder. However, a vast number of these folders additionally contained screen shots of conversation threads between Whiteman and females which were of a sexual nature, inclusive with some images of a sexual nature such as images in underwear, naked photographs and sexual videos.

146. One folder contained images of Child 4. A second related to the original charge from 11 December 2019 about Child 10.

Subsequent arrest

147. On 4 March 2020, Whiteman was again arrested and taken to Wollongong Police Station. He agreed to participate in an electronically recorded interview where he made admissions relating to possession of the images found but denied having ‘sexual relations’ with any girls who were 14 or 15 and denied having ‘sex’ with any of the girls in the folders who were under the age of 16. He did say he had a ‘fetish’ for ‘G-String bikini’ and ‘swimwear.’ Whiteman was charged and has been held on remand solely referable to these matters since that date.

Assessment of objective seriousness- General principles

148. The objective seriousness of a particular offence must be determined in light of the entirety of its facts and circumstances. But there is, in cases such as this, one fundamental premise: every act involving the sexual exploitation of a child is serious, whether physically or by using a carriage service. It is well recognised that such offences can have profound and deleterious effects upon victims for many years, if not the whole of their lives: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3; Stanton v R [2021] NSWCCA 123.

149. There is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the potentially long term and serious physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56. The guidance offered by the respective maximum penalties makes that clear.

Sexual and indecent assault - Child under 16

150. It follows that every act that involves the physical sexual interference with a child is serious and is treated seriously by the courts. In assessing the objective seriousness of individual matters I must consider:

1. The act or acts done.

2. The character of the sexual assaults (by reference to the elements of the particular offence charged).

3. The degree and nature of physical contact.

4. The nature and extent of any penetration of the child, if any. Noting that there is no hierarchy of seriousness of the kinds of sexual intercourse. R v AJP [2004] NSWCCA 434.

5. The degree of physical harm done to the child (psychological harm of some sort being presumed).

6. The time over which the acts occurred.

7. Where and how the offences came about.

8. The other acts associated with the crime.

9. The age difference between the perpetrator and the child.

10. Any relationship between the perpetrator and the child.

11. The age of the child relative to the range encompassed by the offence.

Consent

151. The presence or absence of consent is relevant in the assessment of the objective seriousness for an offence where absence of consent is not an element: Dawkins v R [2018] NSWCCA 278; Wakelingv R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. But, to describe sexual activities involving children under 16 as consensual “can reveal an approach which was erroneous both as a matter of legal principle and fact:” Nelson v R [2016] NSWCCA 130, per Basten JA. This is because the absence of consent is not an element, or inherent, in offences against s66C and other offences involving children under 16.

152. Forced intercourse or other sexual activity without consent would be relevant as a matter of aggravation in assessing the relative seriousness of such an offence (if care is taken not to infringe the De Simoni principle): The Queen v De Simoni (1981) 147 CLR 383; [1981 HCA 31. However, the absence of an aggravating feature does not mitigate the seriousness of the offence.

153. A better approach to the issue of "consent" when assessing the relative seriousness of sexual offences involving children is to take into account the fact that an act (particularly when it involved sexual intercourse) was "non-oppositional": Bell v R [2019] NSWCCA 251 at [32] & [33]. That in turn requires an assessment of what was done by an offender, if anything, to create that situation.

Sexual communications

154. The harm done to child victims of carriage service or cybersex offences can be no less serious than in person offences. The internet may be used as a highly effective medium through which to exploit and sexualise vulnerable children, who often have unsupervised access to the internet: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89].

155. The medium of the internet permits an offender to employ techniques that exploit a child’s curiosity and vulnerability to trickery and persuasion. An adult communicating with a child is able to use the internet to intimidate or coerce to ensure the child’s participation. The young and vulnerable can be subject to sustained and predatory criminal communications from (generally much older) men for the purposes of their own sexual gratification: Small v R [2020] NSWCCA 216.

156. Cybersex offences that involve a real child victim render the offences more serious. Courts recognise that there is an implicit, persuasive presumption that a child will suffer harm as a result of prohibited sexual activity. That principle applies no less to cybersex offences than it does to in person sexual offences committed against young persons: Adamson v R (2015) 47 VR 268; Kannis v R [2020] NSWCCA 79.

‘”The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions;” Adamson at [27].

157. Appellate courts have stressed the need to give primacy in sentencing to the need for general deterrence and denunciation, as it is a form of offending that is difficult to detect: R v Porte [2015] NSWCCA 174 at [52]: Watson at [89].

158. The Commonwealth Parliament has scaled cybersex crimes by the nature of the activity prohibited and allotted a variety of maximum penalties. They are one important indicator of the relative seriousness of an offence. The maximum penalties available reflect the legislature’s recognition that today’s technological landscape presents a dangerously easy playing field for manipulation of children: Watson at [89]. Here I am dealing with three types of cybersex offending:

1. Use a carriage service to engage in sexual activity: s.475.25A Criminal Code (Cth) - maximum penalty 15 years imprisonment

2. Use a carriage service to groom a child: s.474.27(1) Criminal Code (Cth) - maximum penalty 12 years imprisonment

3. Using a carriage service to transmit indecent material- 474.27 A(1) Criminal Code (Cth) - maximum penalty 7 years imprisonment.

4. Use a carriage service to offend: s s474.17(1) Criminal Code (Cth) - maximum penalty 3 years imprisonment

159. The actual character and extent of the crime itself must be also considered as a guide to where on the scale of seriousness an individual offence sits. The criminality in this conduct is related to the interference with the child's privacy and her right to a healthy psycho-sexual development. The offence involves an abuse of power that can lead to the formulation of a destructive relationship; by requiring the child to feed into and gratify an offender’s sexual titillation and fantasies, often with a view of having her submit to sexual activity: R v Asplund [2010] NSWCCA 316:R v Tector [2008] NSWCCA 151. A court can consider:

1. The nature of conduct; including the topics raised, the methods used to gain the child’s trust, any abuse of that trust, with requests for privacy.

2. The extent of any manipulation of the child.

3. The nature of any demands made of the child and the extent the child became compliant with the requests.

4. The number of contacts - from the occasional to a bombardment of indecent suggestions.

5. Whether graphic, intimate or sexual images were sent to the child.

6. Whether images were solicited from child.

7. Whether images were solicited sent by the child.

8. Whether the communications were accompanied by other acts such as gifts or money.

Child Abuse Material

“It is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world:” R v Booth [2009] NSWCCA 89 at [40] – [44].

160. Assessing the objective seriousness of a particular offence involving child abuse material or child pornography material is a most significant aspect of the sentencing exercise. The Court of Criminal Appeal has identified a list as of factors relevant to such assessments: Minehan v R [2010] NSWCCA 140 at [94]: Hutchinson [2018] NSWCCA 152. I also found useful in understanding relevant principle the Judicial Commission of NSW Research Monograph 34, Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, Mizzi, T Gotsis and P Poletti.

1. Sequence 55    Assault with act of indecency - I indicate a sentence of 1 year 6 months.

2. Sequence 80 Aggravated Indecent assault - As it carries a standard non parole period I indicate a sentence of 2 years 7 months with a non-parole period of 1 year 10 months.

3. Sequence 81   Sexual intercourse Child 14-16 - Taking into account the matter on the Form 1 (Seq 13 & 50) I indicate a sentence of 3 years 9 months.

4. Sequence 82    Sexual intercourse Child 14-16 -   Taking into account the matter on the Form 1 (Seq 15 & 51) I indicate a sentence of 3 years 6 months

5. Sequence 6   Possess Child abuse material - I indicate a sentence of 2 years 3 months.

252. The total aggregate sentence is 10 years.

253. There will be a non-parole period of 6 years commencing 04/03/2026 and expiring 03/03/2032. The balance of the sentence of 4 years is to commence upon the expiration of the non-parole period on 04/03/2032 and expiring on 03/03/2036.

254. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 04/03/2032.

255. The total effective sentence is 16 years with a non-parole period of 12 years.

256. Sentence explained to offender by His Honour.

257. Offender warned about application of Crimes (High Risk Offenders) Act 2006 - Sect 25C

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Decision last updated: 15 October 2021