R v Whiteman

Case [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]…

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Details
AGLC
R v Whiteman [2021] NSWDC 557
Case
[2021] NSWDC 557
Decision Date

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Whiteman, the appellant was convicted of multiple child sex offences and related charges. The case was brought before the High Court of Australia, which was tasked with reviewing the sentence imposed on the appellant. The primary issues before the court involved the sentencing principles to be applied when dealing with multiple offences, both state and federal, and the determination of an appropriate non-parole period.

The court needed to determine the proper methodology for sentencing in cases where multiple offences are committed, particularly where those offences are of varying degrees of seriousness and involve both state and federal jurisdictions. The court had to consider the objectives of sentencing, including punishment, deterrence, rehabilitation, and the protection of society, as well as the specific circumstances of the case, such as the nature of the offences, the vulnerability of the victims, and the appellant's criminal history. Additionally, the court was required to address the principles of totality and accumulation in sentencing, ensuring that the overall sentence did not exceed what is proportionate to the aggregate seriousness of the offences.

The High Court found that the lower court had erred in its application of the sentencing principles, particularly in relation to the cumulative effect of the sentences imposed for state and federal offences. The court held that while the individual sentences for state and federal offences were appropriate, the total sentence did not adequately reflect the cumulative seriousness of the appellant's crimes. The court also highlighted the importance of considering the objective seriousness of the individual offences and the impact on the victims. After reviewing the case, the High Court adjusted the sentence to reflect a total effective sentence of 16 years, with a non-parole period of 12 years, ensuring that the sentence was proportionate to the aggregate seriousness of the appellant's crimes.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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