R v WHITTEMORE

The applicant, R v Whittemore, sought permission to appeal against a sentence imposed by the District Court for eight counts of unlawful sexual intercourse. The District Court Judge had sentenced the applicant to four years, one month, and 21 days imprisonment, with a non-parole period of 15 months, and declined to suspend the sentence. A single judge of the Supreme Court had initially refused permission to appeal, leading the applicant to request a hearing before the Full Court.

The Full Court was required to determine two principal issues: whether the sentencing judge erred in refusing to suspend the applicant's sentence, and whether the imposed sentence was manifestly excessive. The offending occurred over approximately one month in 1984, shortly after the victim, aged 15, met the applicant, who was then 33 and became her personal coach. The offences involved penile sexual intercourse and other forms of unlawful sexual activity on four separate occasions, including in a hotel room. The victim impact statement highlighted the significant and lasting negative impact of the applicant's conduct on the victim's life.

The Court reasoned that the sentencing judge had not erred in referring to the standard set in *R v D* as a guide, noting that the judge explicitly stated that the case must be decided on its own facts and that authorities could only offer limited assistance. The judge's remarks indicated that *R v D* was used as a benchmark rather than a rigid rule, and that the particular circumstances of the offending and the applicant's personal considerations were given serious regard. The Court also found that the judge appropriately considered the delay in the complaint and the applicant's rehabilitation when deciding against suspending the sentence, acknowledging the judge's comments on the passage of time and the applicant's subsequent law-abiding conduct, while also referencing the principle that such factors should not be given undue weight in cases of this nature.

Ultimately, the Full Court concluded that the head sentence was not manifestly excessive, being less than half the standard set for similar offending as described in *R v D*. The non-parole period was also considered mercifully less than the ordinary proportion. For these reasons, the Court refused permission to appeal.