Legal Research
Cases
R v Whittaker

R v Whittaker

Case [2021] ACTSC 189 19 August 2021

Criminal Liability

Sentencing

Unconscionable Conduct

Child Sexual Abuse Offences

Possession of Child Abuse Material

Criminal Law

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Whittaker
Citation:	[2021] ACTSC 189
Hearing Date(s):	13 August 2021
DecisionDate:	19 August 2021
Before:	Murrell CJ
Decision:	Sentenced to nine years and six months’ imprisonment with a four year and nine months’ nonparole period
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – engage in sexual relationship with child – commit act of indecency on person under the age of 16 – sexual intercourse with person under the age of 16 – use child to produce child exploitation material – possess child abuse material
Legislation Cited:	Crimes Act 1900 (ACT) ss 55, 56, 61, 64, 65 Crimes Act 1914 (Cth) ss 16A, 16AAB, 16AAC, 19, 19AB, 19AF, 19AJ Crimes (Sentencing) Act 2005 (ACT) s 7, 14, 33, 35 Criminal Code Act 1995 (Cth) ss 473.1, 474.22A, 474.27A, 474.29AA Firearms Act 1996 (ACT) s 181
Cases Cited:	R v Aniezue [2016] ACTSC 82 R v Degioannis [2019] ACTSC 47 R v Ferguson [2015] ACTSC 363 R v Hartley-Kennett [2021] ACTSC 88 R v Jones [2019] ACTSC 124 R v KC [2020] ACTSC 94 R v KN (No 2) [2019] ACTSC 124 R v Miller [2019] ACTCA 25 Will v The Queen (No 2) [2021] ACTCA 14
Parties:	The Queen (Crown) Scott Ian Whittaker (Offender)
Representation:	Counsel A Chatterton (Crown) J Raine (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Raine Litigation Lawyers (Offender)
File Number(s):	SCC 130, 131 of 2021

MURRELL CJ:

Introduction

The offender is to be sentenced for the following offences, which were committed between November 2017 and March 2021:

(a)Count 1: Between 6 November 2017 and January 2019, engage in sexual relationship with child or young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act)
The maximum penalty for the offence is imprisonment for 25 years.
(b)Counts 2, 13 and 19: Commit act of indecency on another person who is under the age of 16 years, contrary to s 61(2) of the Crimes Act (on 21 January, 29 August 2018, and 6 November 2018).
The maximum penalty for each offence is imprisonment for 10 years.
(c)Counts 5, 7, 9, 11, 15, 17, 21: Engage in sexual intercourse with another person under the age of 16 years, contrary to s 55(2) of the Crimes Act (on 1 March, 28 March, 17 April, 28 April, 11 October, 29 October, and 7 December 2018).
The maximum penalty for each offence is imprisonment for 14 years.
(d)Counts 6, 8, 10, 12, 14, 16, 18, 20, 22: Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act (on 1 March, 28 March, 17 April, 28 April, 29 August, 11 October, 29 October, 6 November, and 7 December 2018).
The maximum penalty for each offence is imprisonment for 10 years, a fine of $160,000 or both.
(e)Counts 3 and 4: Use a carriage service to transmit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Whittaker

Details

AGLC: R v Whittaker [2021] ACTSC 189
Case: [2021] ACTSC 189
Decision Date

CaseChat Overview and Summary

Scott Ian Whittaker was convicted of multiple offences involving sexual abuse of a child and possession of child abuse material. The Supreme Court of the Australian Capital Territory handed down a sentence of nine years and six months’ imprisonment, with a nonparole period of four years and nine months. The court was required to decide the appropriate sentence for the offender, who pleaded guilty to multiple charges of engaging in sexual relationships with a child, committing acts of indecency on a person under 16 years of age, using a child to produce child exploitation material, using a carriage service to transmit indecent communications, and possessing child abuse material. The court considered the objective seriousness of each offence, the offender's subjective features, and other relevant sentencing considerations. The court took into account the offender's previous convictions for child sexual abuse offences, the significant age difference between the offender and the complainant, and the substantial quantity of child abuse material in the offender's possession. The court imposed concurrent sentences for the offences, with a total sentence of nine years and six months’ imprisonment, and a nonparole period of four years and nine months. The offender was also ordered to pay a fine of $400 for the firearms offence.

Orders