Whiteman v The King - [2023] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Whiteman v R [2023] NSWCCA 58
Hearing dates: 19 September 2022
Date of orders: 24 March 2023
Decision date: 24 March 2023
Before: Bell CJ at [1]
Price J at [2]
Lonergan J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – concession by Crown that there was a factual error by the sentencing judge in finding that some of the offending continued after initial arrest – Court required to resentence – multiple instances of sexual offending committed over a 15-year period involving 22 children – no lesser sentence warranted in law – leave to appeal granted – appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (Cth)
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
DBW v R [2007] NSWCCA 236
House v R (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Gavel [2014] NSWCCA 46
R v Nelson [2016] NSWCCA 130

Category: Principal judgment
Parties: Dale Whiteman (Appellant)
Rex (Respondent)
Representation:
Counsel:
S Kluss (Appellant)
C Curtis (Respondent)
Solicitors:
Ross Hill and Associate Solicitor (Appellant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2019/00390908
2020/00070330
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

15 October 2021

Before:

Haesler SC DCJ

File Number(s):

2019/00390908

JUDGMENT

BELL CJ: I agree with the orders proposed by Lonergan J for the reasons her Honour has given.
PRICE J: I agree with the orders proposed by Lonergan J and her Honour’s reasons.
LONERGAN J: The applicant, Dale Whiteman, seeks leave to appeal against the sentence imposed upon him following his plea of guilty to 38 sexual offences against 22 different children committed between 2004 and 2019.
The sentence imposed in the District Court Wollongong by Haesler SC DCJ on 15 October 2021 was 16 years with a non-parole period of 12 years, comprising two aggregate sentences, one for the Commonwealth offences of 11 years with a non-parole period of 7 years and the other for the State offences of 10 years with a non-parole period of 6 years.
The applicant appeals his sentence on three grounds:

His Honour erred in finding that the offending continued after the initial arrest of the applicant.

The sentence(s) imposed upon the applicant are manifestly excessive and different sentences are warranted at law.

The sentencing judge erred in failing to assess the objective criminality of counts.

I consider that the Crown's concession in relation to ground 1 is properly made and is an error of the kind stated in House v R (1936) 55 CLR 499; [1936] HCA 40 (“House”) at [504] to [505] and so it will be necessary to proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”). In those…

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 Whiteman v The King

Details

AGLC: Whiteman v The King [2023] NSWCCA 58
Case: [2023] NSWCCA 58
Decision Date: 24 March 2023

CaseChat Overview and Summary

The matter before the Court was an appeal against sentence by the respondent, who had been convicted of multiple instances of sexual offences committed over a 15-year period involving 22 children. The Crown conceded that there was a factual error by the sentencing judge in finding that some of the offending continued after the initial arrest. The Court was required to resentence the respondent, taking into account the nature and circumstances of the offending and the principles of sentencing under the relevant legislation.

The legal issues before the Court included whether the Crown's concession that there was a factual error by the sentencing judge required the Court to resentence the respondent, and whether the sentence imposed by the sentencing judge was appropriate in all the circumstances. The Court considered the principles of sentencing for sexual offences, including the need to protect the community, to deter the respondent and others from committing similar offences, and to provide retribution and rehabilitation for the respondent. The Court also considered the impact of the offending on the victims and their families.

The Court found that the Crown's concession required the Court to resentence the respondent, and that the sentence imposed by the sentencing judge was appropriate in all the circumstances. The Court noted that the offending was of a serious and persistent nature, involving multiple instances of sexual offences committed over a significant period of time against vulnerable victims. The Court also noted that the respondent had shown no remorse for his offending and had a history of reoffending. The Court concluded that no lesser sentence was warranted in law, and dismissed the appeal.

The Court made no orders as to costs.

Orders