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 Code Act 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 MAK v R [2006] NSWCCA 381 Markarian v 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 Putland v 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 v Asplund [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 v Tuala [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 Wakeling v 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; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions 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 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 1. 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. 2. 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. 3. 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] 4. 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. 5. "Carriage service" means a service for carrying communications by means of guided and/or unguided electromagnetic energy: s473.1 of the Criminal Code Act 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 1. 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 1. 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]. 2. 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. 3. Whiteman has been custody since 4 March 2020. The sentences will commence on that date. The term "victim" 1. 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. 2. 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". 3. 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. 4. 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 1. 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) 1. 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. 2. 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. 3. 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 1. 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. 2. 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) 1. 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. 2. 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 1. 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. 2. 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) 1. 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. 2. 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. 3. He continued to message Child 2 for a short period before ending all communication with her. Child 3 - born 1993 1. In 2007, Whiteman (then 19 years) met and befriended Child 3 at a social activity where both participated. 2. 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. 3. 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) 1. In June 2007, about a month after Child 3's 14th 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. 2. 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 1. 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) 1. 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. 2. 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. 3. 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) 1. In 2007, Whiteman (between 18 and 19) met and befriended Child 19 (aged between 14 and 15). She met him through their social activity. 2. 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 1. 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. 2. 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. 3. 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. 4. 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 1. 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. 2. 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. 3. 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) 1. 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) 1. 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. 2. 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 1. Sometime between 2005 and 2006, Child 5 (aged 12 to 14) met Whiteman (aged 16 to18) through a social activity. 2. 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. 3. 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 1. 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. 2. 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. 3. 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) 1. 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. 2. 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. 3. 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. 4. 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. 5. 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 1. During 2011, Whiteman (between 22 and 23) was Child 6's neighbour. She was aged between 12 and 13. 2. 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. 3. 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. 4. 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. 5. 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) 1. 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. 2. 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.' 3. 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) 1. 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. 2. 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. 3. 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) 1. 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. 2. 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.' 3. 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?' 4. 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) 1. 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. 2. 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. 3. 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) 1. 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. 2. 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. 3. 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' 4. 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) 1. 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). 2. 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.' 3. 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. 4. 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. 5. 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) 1. Child 18 is the younger sister of Child 11. 2. 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.' 3. 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'. 4. 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 1. From 2010 until 2017, Child 7 was involved in a social activity with a girlfriend of Whiteman at the time. 2. 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. 3. 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. 4. 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.' 5. 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.' 6. 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. 7. 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'. 8. 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 1. 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. 2. 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. 3. 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. 4. 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.' 5. 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). 6. 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 1. 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 1. 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. 2. 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. 3. 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) 1. 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. 2. 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. 3. 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. 4. 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 1. 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'. 2. 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. 3. He placed a condom on his penis before having penile/vaginal intercourse with her. 4. Afterwards the pair got dressed and he drove her back to a train station where she caught the train home. 5. 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. 6. 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) 1. 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. 2. 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. 3. 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. 4. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. '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. 6. Child 9 told police she did not enjoy talking to 'Hailey' as she felt the requests for photographs were 'weird'. 7. 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) 1. In 2018, Whiteman (then aged 30) met Child 22 though their sport where he was a senior and she was a junior. 2. 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. 3. 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 😊'. 4. 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 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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." 1. 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 1. 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. 2. 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 1. 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. 2. 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. 1. 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. 2. One folder contained images of Child 4. A second related to the original charge from 11 December 2019 about Child 10. Subsequent arrest 1. 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 1. 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. 2. 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 1. 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 1. 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; Wakeling v 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. 2. 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. 3. 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 1. 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]. 2. 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. 3. 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]. 1. 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]. 2. 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 1. 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]. 1. 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. 2. Given the problem of child pornography is an international one appellate courts stress that general deterrence must be a paramount consideration. Consumers of child abuse material cannot escape responsibility because without them there is no market for the product; R v Porte; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 at 483-484. 3. Other factors of universal application which must be considered when sentencing for these offences include: the offender's motivation; the way in which the material is organised; whether the charges are representative; and evidence concerning the surrounding circumstances. What makes such crimes callous is not just that they exploit and abuse children; they are callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. Objective seriousness Individual offences 1. Mr Fraser, Public Defender, counsel for Whiteman, has provided helpful tables setting out penalties and his submission as to objective seriousness. In response Mr Rollestone, for both the Directors of Public Prosecutions, suggested alternative ways of assessing their seriousness. Both counsel referred to where in the range of offending an offence might lie. Although such opinions are regularly offered in submissions I did not find them helpful except as a guide to how one crime might relate to others in respective seriousness: see [196] below. Assessment of objective seriousness - specific offences 1. I must explain how I have applied the general principles noted above to the individual matters for sentence: R v Van Ryn [2016] NSWCCA 1 at [123]. 2. In relation to each matter Whiteman acted with one motive; his own sexual gratification. In each matter he exploited the youth and inexperience of his victims and the relative differences in their ages. The significance of the age difference can be illustrated by the fact that in many case the child victims were just starting High School and had only recently reached puberty. By contrast from the age of 18 a person is viewed as an adult: "From that age they old are permitted legally to drive, to drink, to attend bars and clubs, to smoke, to work and to vote. The capacity to drive and obtain alcohol (or visit clubs) is a subtle and overwhelming distinction and mark of "adulthood" compared to a person who is only just learning about relationships generally and who may well envy the freedom that "adulthood" provides": Nelson, per Rothman J at [63] – [64]. 1. In each matter for sentence it is accepted that custodial sentences must be imposed. Perhaps, if some crimes had been isolated incidents, gaol would not have been inevitable but these were not isolated instances and non-custodial sentences are not an option. Child 1 - seq 17 1. This offence occurred when Whiteman was himself a child. But there was a 3 year age difference and he was old enough to drive. The complainant was at all times outside the car. His assault involved grabbing the child's hand after she had said "no." The indecent aspect of the assault was pulling the child's hand toward his penis. Child 2 - seq 19 1. Again this act of penile vaginal intercourse offence occurred when Whiteman was himself a child. Again, there was a 3 year age difference this is illustrative of the fact a child's youth and vulnerability were exploited. Child 3 - seq 22 1. Despite Child 3's earlier refusal to engage in sexual intercourse Whiteman was able to overcome that initial reluctance and persuade the child to perform oral intercourse on him. He compounded his crime by physically manipulating her body to do what he wanted. Child 4 - seq 60 1. Whiteman exploited his friendship with Child 4's family to gradually progress communications via text and email from the mundane to the sexual, including sending an explicit picture. She was targeted. Her respect for him was abused. His objective was to make her accept that sex between them was appropriate, despite her youth (14) and their 6 year age difference. Child 4 - seq 2 1. And, his objective was successful. As a result of his grooming activity Child 4 felt loved and that they were in a genuine relationship. Whiteman encouraged and exploited those feelings and persuaded her to come to him in the lounge room of her home where he had penile vaginal intercourse with her. Child 5 - seq 55. 1. Whiteman used a family friendship to ingratiate himself with Child 5 (aged 16). Having obtained her trust he took her to a relatively isolated place. Taking advantage of what she saw as his friendship with her he placed his hands on her breasts and directly on genitals. Child 10 - seq 62 1. Whiteman again used a family friendship to ingratiate himself with Child 10, then aged 12. He initiated the Facebook communications. He made her feel comfortable with him before turning the conversation to sexual matters. There were many communications over years. He asked that she expose herself to him wearing underwear. She was aged between 12 and 15 years old at the time. When she complied he compounded this indignity by taking 'screenshots" which he saved and given his later admissions used for his own prurient purposes: that is an excessive interest in sexual matters, especially the sexual activity of others. Child 6 –seq 63 1. Child 6 lived near Whiteman. His actions in befriending the child and her family and in his communications when aged 12 or 13 she set up a Facebook account were planned and calculated. They were not innocent; as he soon turned the conversations to sexual matters and induced her to send images of herself in her underwear. The episode was exploitative and left a very young girl concerned and confused. Child 7 – seq 79 1. Whiteman then aged 29, initiated communications with Child 7, then aged 13 or 14. He concocted an elaborate charade with only one purpose; to induce the child to reveal intimate details about herself for his own prurient purposes. He disguised his true identity and continued to do so despite her 'blocking' communications with him. His actions were deceptive, exploitive and invasive of a child's privacy. Child 8 - seq 83 1. Whiteman, then 30, initiated contact with Child 8, then 14. He was well aware of her age He exploited the fact she was 'in a low spot.' He did so with no regard to her or her feelings. He offered a false hope to her and exploited her apparent vulnerability. His persistent requests broke her resistance. She sent him images of herself in swimwear or underwear. He exposed her to his own sexual acts; exposure she was too young and ill-equipped to deal with. Child 8 –seq 85 1. This offence is another example of a 30 year old man exposing a child to his engaging in sexual conduct both for his own sexual gratification but also to accustom the child to sexual activity. Child 8, sensibly, chose not to pay attention to what Whiteman was doing. She did not herself 'engage' in any act but what was done was more than distasteful it was an act of self-gratification and operated in part to accustom the child to his sexual activity. Although notionally the most serious carriage service offence it was however far less serious than many of the acts caught by the section or for punishment today. Child 8 –seq 80 1. Having accustomed the child to doing as he wanted and having exposed himself to her, Whiteman arranged a meeting at his home so that he could engage in and further accustom her to sexual activity. His actions in touching her body when both were naked served that aim and were for his sexual gratification. Child 8 - seq 81 1. This crime (and seq 82 and the related Form 1 matters) represent the culmination of a long process designed solely to gratify the offender's sexual interest in Child 8. He engaged in penile vaginal sex with a child half his age. A condom was used, reducing the risk of disease and pregnancy. Other than the act itself the level of manipulation involved must be taken into account as is the level of concern and confusion his actions would have had on the child. But I must do so with care as that factor was also relevant to each other offence related to Child 8 and should not be double counted. Child 8 – seq 82 1. This crime involved a further act of penile vaginal intercourse in circumstances similar to seq 81. Child 8's communication with Whiteman before 'blocking' him speaks volumes - " You knew I was 15 why did you take advantage of me?" Child 9 – seq 89 1. This is another example of Whiteman using a casual acquaintance to initiate contact with a 12 or 13 year old child and exploit her innocence and naivety. He contrived a story and invented a persona to play on the child's desire for interaction with an adult and dreams of being a model, in order to engage her in sexualised chat and induce her to send images of herself wearing underwear. Again, he stored these images for his own prurient purposes a further gross breach of the child's privacy. Child 10 – seq 3 1. Whiteman was aware of Child 10's estrangement from her father and exploited that fact to gain and breach her trust. He persisted in his demands of her despite her obvious discomfort. He began the process of accustoming her to possibility of physical contact and the acts he wanted her to perform on him; a process thwarted only by the child's caution. Again, his actions were exploitative and undertaken without any regard for his victim or her age or vulnerability; to the contrary, those facts were exploited for his own sexual gratification. Possess Child Abuse Material – seq 6 1. Whiteman's devices contained Child Abuse Material. A very small number of images fell into the more serious Interpol Base line category. I was not asked to view the images and the Interpol Baseline categorisation does not allow for any proper assessment of the images. These images alone could not attract a full time custodial sentence. 2. Here however most images and sexualised communication threads were of known or unknown child victims of offences committed by him. They did not fall into the worst or depraved category often found – that is images of sexual intercourse with and/or torture of very young children. They were collated for Whiteman's own purposes and not disseminated. They were unlikely to be viewed by others. Whiteman was however responsible for their creation. And, they were illustrative of the deception employed by him to obtain them. 3. They were organised into 71 labelled folders relating to the number of children involved. Many related to his self-described "fetish" involving young girls in swim suits or underwear. They were collected to be viewed for prurient purposes. Each involved a real child and the exploitation of that child would have been compounded each time the image was viewed. The harm done to children who may later find out images of them have been used in such a way cannot be underestimated. Form 1 and Schedule 1. As required by the Crimes (Sentencing Procedure) Act 1999 and s 16 BA Crimes Act 1914 (Cth) I take these matters into account when determining the appropriate penalty for the offence to which they relate: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002,: (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]. 2. I do not "in any sense" impose sentences for an offence on a Form or a Schedule: Attorney General's Application No. 1 at [68]. Rather, I take them into account as part of the instinctive synthesis approach to sentencing explained by Justice McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]-[54]. Here, the various matters on each Form 1 and Schedule do operate to increase the sentence that would otherwise be appropriate. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] – [42]. 3. Their nature and seriousness must also be considered. On occasions they would not increase a sentence to any discernible extent because the facts in relation to them have already been taken into account in aggravation of the penalty for the matters to which they relate. On other occasions the increase can be substantial: Attorney General's Application No. 1 at [18]; Grube v R [2005] NSWCCA 140. Such matters generally involve crimes of a similar type to the matter to which they relate or similar offences committed against a separate victim or the carriage service matters multiple victims. For example: 1. After Child 1 rejected his advances Whiteman badgered her with messages, sexual requests and messages and requested underwear pictures from her (Seq 57). This will be taken into account sentence for Child 7 (seq 79). 2. The sentence for having sexual intercourse with Child 4 must take into account his having penile vaginal intercourse at a beach (Seq 4) and her performing oral sex on him at a cinema (seq 5). 3. The sentence for using a carriage service to groom Child 4 (seq 60) must take into account carriage service transmit offences against Child 10 (seq 62), Child 11 (seq 66) and Child 12 (seq 68). Victim Impact 1. A Victim Impact Statement (VIS) may be received and considered by a sentencing court. In the case of a primary victim it must relate to "any personal harm suffered by the victim as a direct result of the offence:" s 26 Crimes (Sentencing Procedure) Act 1999. 2. Here each of the VIS's received was in keeping with my expectations based on recent psychological research and the common experience of the courts. Each attested to harm of the kind that might be expected of the offence in question and I had no difficulty with acceptance of their contents: R v Tuala [2015] NSWCCA 8. Tragically their responses were all too common. 3. Many of the children told police how initially they welcomed the approaches by an older and adult man but how uncomfortable and confusing they found it when the approaches toward them turned to sexual demands. And, how they were left feeling vulnerable after they realised they had had their innocence exploited. The VISs that were read spoke of the loss of trust they experienced then and now. Whiteman's demands they keeping things secret exacerbated those feelings. Lasting impacts reported include; anxiety, shame, negative self-image and feeling that as young girl their life had been broken. 4. Some spoke of how coming forward to report the crimes had been empowering, as it enabled them to realise how strong they could be in the face of adversity. But the single most common response was how Whiteman had compromised their capacity to trust others, particularly men. 5. I note that behavioural responses to child sexual abuse vary; no unique set of behavioural constellations have been identified. Responses vary because of the diversity of abuse experiences. A sentencing court must recognise that all forms of child maltreatment present significant risks for later physical and emotional well-being. Any sexual interference with a child can led to developmentally inappropriate and dysfunctional interpersonal relations, feelings of betrayal of trust, powerlessness and guilt and shame about the experience. Significant longer term effects have also been identified: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11. 6. Not every victim provided a VIS. The absence of a Victim Impact Statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E (5) Crimes (Sentencing Procedure) Act 1999. Maximum Penalty 1. Careful attention to the maximum penalties and where applicable any standard non-parole period is required. Both provide sentencing measures to be balanced with all other relevant factors. 2. In his submissions and table, Mr Fraser proffered a suggestion as to where in the range of seriousness each offence lies. There is still a debate as to whether a sentencing judge must categorise offences in such relative terms: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; R v Spinks [2021] NSWSC 649 at [39]. Such assessments are encouraged by the standard non-parole periods that apply to some State offences. They can provide a short hand method to help distinguish very serious (often called "worst case" offences) from the trivial and to rank matters for sentence relative to each other. 3. But, each sentencing exercise requires individual assessment. I have to take into account all factors that bear upon the process of instinctive synthesis in the particular case, including the legislative guideposts constituted by the maximum penalty: Markarian. A process of comparing and contrasting the actual offence with the abstract one is not necessary: Tepania v R [2018] NSWCCA 247. 4. When sentencing for the s 61M(2) offence seq 80 I have to have regard to the standard non-parole period and give it some content: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; R v NJK [2011] NSWCCA 151 at [40]. This is despite the fact that the ratio between the head sentence and the standard non-parole being has been described as "absurd: " BT v R [2010] NSWCCA 267. 5. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock at [27]. While at times transparency is required I do not engage in staged approach to sentencing nor should I fix on a non-parole period and oscillate my sentence around it: Muldrock at [28]. I note that for a s61 m(2) 6. Care is required, for here, the maximum penalties prescribed cover the wide variety of matters that may fall within each type of offence. Some Commonwealth offences carry maximums for non-contact offences that are much higher than those for acts that involved intimate skin on skin physical contact, which in most cases would be regarded as more objectively serious. While each sentence must be proportionate to what was done those higher maximums still requires careful attention: Tector at [166]. Direct equivalence however is impossible. 7. The maximums prescribed also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decision of this and appellate courts but, "…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46]; Hili v The Queen (2010) 242 CLR 520; [2010] HC 45. 8. I must also give effect to basic principles of sentencing law, set out in the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16A Crimes Act 1914 (Cth) and at common law. One important principle is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. Hoare v The Queen (1989) 167 CLR 348 at 354; Way v R [2004] NSWCA 131; (2004) 60 NSWLR 168 at [125]. Totality and accumulation 1. Particular care needs to be taken in sentencing for multiple offences whether they involve discrete offending against multiple victims, or multiple offences with overlapping elements of criminality. The question whether a series of sentences should be served concurrently or cumulatively is only considered after determining the appropriate sentence for each offence. If one penalty could not fully comprehend and reflect the criminality for the other offence they must be partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences. When sentencing for multiple offences, the nature of the charges may compel concurrency. On the other hand, particularly where the offences are separated in time and/or relate to multiple victims, accumulation is required. Care must then be taken to ensure that that the accumulation of a number of lengthy periods of imprisonment not result in a disproportionate level of punishment - the principle of totality. 2. A sentencing judge needs to evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so determine what, if any, downward adjustment is necessary in the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 Street CJ at 260. The totality principle works to limit punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing: R v Clinch (1994) 72 A Crim R 301 at 306; MAK v R [2006] NSWCCA 381. What is a proportionate sentence or what might be seen as a "crushing" sentence can depend on the perspective of the observer; whether they are a victim, community, appeal court or offender: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Basten JA at [26]-[45]. 3. On one hand if a prisoner abandons hope their chances of rehabilitation may be diminished and they may no longer cooperate with gaol authority. On the other hand public confidence in the administration of criminal justice; requires that a person who commits multiple offences against many victims throughout the whole course of a studied and deliberate course of criminal behaviour cannot escape effective punishment for the offences which follow successively one upon another: R v Harris [2007] NSWCCA 130; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; Van Ryn v R [2016] NSWCCA 1 at [229]. 4. Sentences and the reasons for them should be as transparent. Everyone; whether victim, offender, court or community should know why a specific sentence was imposed: Beattie. That said, sentencing involves intuitive judgment. Different factors require different considerations - every offender and every sentencing exercise has it individual features. Pragmatic decisions need to be made and the perspectives of the victims, the community and the offender taken into account. Ultimately there must be a fair, just, proportionate or appropriate sentence for the whole of the offending. COVID 1. When I come to synthesise an appropriate sentence I cannot ignore the impact of the COVID pandemic. COVID-19 has entered our gaols. If it takes hold early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act. But Whiteman does not fall into a category that might be considered for early parole. 2. Whiteman has been in custody during the whole of the pandemic. He has been subject to the considerable restraints, lockdowns and lack of access to work, programmes and visits brought in to reduce the chance of infection entering or spreading. Those restriction will continue for some time: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions - viewed 7/8/2021 3. The offender has endured over a year of such restrictions. He may face them again. We all feel heightened anxiety and concerns about the pandemic, but prisoners have no control over their lives or who they associate with so such concerns are exacerbated. I do not ignore the reality of prison life. These are relevant factors that must be synthesised along with all other matters. Youth 1. Some of Whiteman's offending occurred before he was an adult. If they had been detected at that time they would ordinarily have been dealt with in the Childrens' Court, where different sentencing principles with more focus on rehabilitation than general deterrence apply. However, given his current age those early matters must now be dealt with at law: s 16 Childrens (Criminal Proceedings) Act 1987. 2. There is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. The principle underpinning the practice lies in the recognition of the immaturity of youth: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37: KT v R [2008] NSWCCA 51 "…the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's:" Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159. Subjective Case The offender 1. Whiteman was born in 1988. He reports having a good and stable upbringing. His parents remain supportive and there was no history of neglect or abuse. He attended local schools where he was more active in sport than with academic activity. He has been in stable employment as a labourer since he was 20. After school he continued to be actively engaged in sport. It took up most of his free time and it was where he socialised until his arrest. 2. He has been in three long-term relationships and had a number of casual sexual encounters with same aged women. He reports no issues with drugs or alcohol and they played no part in his offending. He reports a history consistent with the onset of depressive symptoms from mid-adolescence, with fleeting suicidal ideation. He has been seeing a psychologist in custody and is been prescribed an anti-depressant for anxiety and sleeping difficulties. 3. Until his arrest Whiteman had no similar criminal convictions; a matter that must be taken into account in his favour. He was however on a Community Corrections Order for a larceny offence from February 2019. He committed his later offences in breach of this order and he still possessed the Child Abuse Material after he was released to bail in December 2019. Offending while on conditional liberty requires some additional punishment for those offences. He made a promise to a court not to offend. He broke those promises. 4. His apparent good character did not enable this offending but, as is obvious, he has not been of good character since he first began offending as a teenager. At best it can be said that most of his offending (serious as it was) was only of the type revealed in these proceedings. 5. Whiteman gave evidence on 23 September 2021. He tendered a letter he wrote to the Court and a reference from his parents, who promise their continuing support. I also received a comprehensive report from Ms K North a forensic psychologist. 6. In his letter Whiteman said he understood the seriousness of the charges and offered an apology, to the court, his family and the victims. He said he regretted what he did and was remorseful. He said he would strive to be better in the future. He would do whatever it takes to better himself. 7. He said he had applied himself in custody and had a trusted role as a "sweeper." He said he would engage in all the treatments recommended by Ms North. He said he had completely changed his attitudes and outlook toward life. And, he looked forward to continuing his personal redemption. He said "I plan to make the most of my second chance, whenever it comes." 8. In evidence he reiterated what he said in his letter about his deep regret for any harm caused and his promise that he would never repeat his actions. 9. He expressed some insight. He told me he suffered from low self-esteem and how he had made attempts at suicide. He said his arrest had changed his outlook and that he now every day looked back with regret at what he did. 10. He described the violence he experienced each day while in custody. He has had only one contact visit and is often locked in his cell for days at a time. He still had dreams of work and family on release. 11. During cross-examination he admitted he had been selfish and put his needs ahead of those of others. He accepted that his offending demonstrated a pattern whereby he would ingratiate himself to a group or family and take advantage of his victims. His said his attraction to girls was not age specific rather he took advantage of their availability. He said he did so because he was lonely and sought acceptance and self-esteem, things he did not get in his work or sport. 12. While I accept he has displayed some remorse; building on the practical remorse demonstrated by his early acceptance of responsibility, his evidence was overall unconvincing. His offending was age specific. It was planned and calculated. As was his evidence to me. His evidence and letter appeared insincere and self-serving. 13. Whiteman was obviously regretful for the position he was now in and the future time he must spend in gaol but his insight into why he did what he did and the harm caused to so many young women was limited. He has the capacity to say the right things and he will have time to learn how to change but when I come to evaluate his prospects I prefer the expert opinion of Ms North. Hers is a professional opinion that can be respected and acted on. She did not, as some purported experts who prepare sentencing reports for the court, act as the offender's advocate and simply parrot his version of events. A Psychologist's opinion 1. Ms North accepted that Whiteman's underlying symptoms of depression and related feelings of loneliness and perceived social rejection had contributed to his offending. She noted his history; that he had difficulties relating to same age peers and how the attention he received from the girls he offended against may have boosted his self-confidence. She then summarised her conclusions as follows; "However, the ages of his victims and the duration of his offending behaviours also indicated the presence of deviant sexual interests, as did the presence of contact sex offences toward towards six (6) of the victims. With regard to his risk for sexual recidivism, Mr Whiteman was assessed as posing a Level IVa Above Average risk for sexual offending, indicating sex offences specific [treatment] would be required in addressing his risk issues. On a positive note Mr Whiteman accepted responsibility for his behaviours, expressed regret and presented as motivated towards engaging in offence–specific treatments." 1. It was his deviant sexual interest, she wrote, that contributed to his offending behaviour. Behaviour he knew "was wrong." She also noted (contrary to his evidence) that his preference for hebephilic (adolescent) females remained consistent over a 12 year period. 2. Ms North wrote that Whiteman was cooperative and candid in his interview with her. She administered a number of psychological tests and considered both risk and protective factors. Obviously, the more those risk factors can be addressed and the protective factors enhanced the better the chance there is that Whiteman will not offend on release. 3. Ms North concluded that his underlying depression and anxiety could be managed with medication and psychological treatment in custody and in the community. Addressing his offence specific issues and deviant interests he would require assistance developing his underdeveloped social skills, a support network and assistance with his low self-esteem. Suitable sex offender treatment is available in custody and he should be referred to Sex Offender programs for further assessment. I note however that such treatment is presently unavailable and may be delayed even after the COVID emergency is over: see [208] above. He will require monitoring and treatment on release. Suitable programmes are available in the community. 4. I note that Whiteman will not be released to parole unless the State Parole Authority are satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999 (NSW). 5. A copy of Ms North's report will be forwarded to Community Corrections with the warrant. Submissions 1. I am indebted to Mr Fraser, Public Defender and Mr Rollestone, Solicitor for the Director of Public Prosecutions NSW, for their thorough written submissions; they have informed this judgment. 2. Mr Fraser on Whiteman's behalf made no attempt to minimise the impact of the offending on each victim. He noted that many offenders assessed statistically as at risk of re-offending, do not. He said there were many positives in Whiteman's response to his arrest and acceptance of responsibility for his actions. He has insight into his offending. 3. Whiteman can work and live a normal life in the community. He has family support. If his underlying problems could be addressed with treatment; treatment he has not had to date, Mr Fraser suggests, he will not be a risk. The more, and the longer, he receives follow up and monitoring on release he can get, the better the chances of reducing risk. This and the need for help adjusting to normal community life after a long sentence he submitted justified a longer period of parole and a finding of special circumstances: s 44 Crimes (Sentencing Procedure) Act 1999. 4. In response Mr Rollestone, submitted that Whiteman's evidence indicated his insight was still limited. His self-serving evidence should not be accepted and he said I would prefer Ms North's expert opinion. Whiteman, he said, had a long standing paedophilic interest in adolescent girls, so to say his prospects are good is speculation. He urged a sentence that focused on both general and specific deterrence. Given the number of victims, the period of time over which the offending occurred and the objective seriousness of each offence, he said only a significant head sentence and non-parole period of some length as both individually and collectively this offending was of the "utmost seriousness." Synthesis 1. I must formulate and indicate sentences for each offence for sentence. I must take into account the offences committed against the victims whose matters are included on Forms 1 or s16BA Schedules. I must take into account all relevant factors including, the often contradictory purposes of sentencing, for both Commonwealth and State offences. 2. Over a period of 15 years Dale Whiteman in a persistent and predatory manner exploited 22 young girls for his own sexual gratification and deviant and prurient interests. His actions harmed many young girls. His actions did, or had the potential to, cause lasting psychological harm to each child victim. His offending did not stop with his initial arrest but only when he was gaoled soon after. 3. Two aggregate sentences must be imposed as both State and Commonwealth offences were committed. Each sentence and their total, as accumulated, must properly reflect the Court's view of the seriousness of the individual crimes for sentences, take into account matters relating to a number of victims whose matters are not for sentence, and let other potential wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21; R v Windle [2012] NSWCCA 222. 4. I must take into account the case put by Whiteman and his personal circumstances and allow for the fact he must be returned to the community. The better equipped he is to do so the safer we all will be. He must get as much assistance as possible to help in his expressed desire to change his ways. Those criminal ways are however well entrenched. He must be assisted and supervised for as long as practicable on release, if only because community protection demands her receive such assistance to help prevent repetition of his offending. 5. After a long period in gaol he will need help adjusting to normal community life. Community protection and safety requires that his need for continuing monitoring and psychological treatment continue for as long as practicable. But, given the length of the overall sentence, the only reason for a finding of special circumstances is based on the fact the State aggregate sentence must be partly cumulative on the Commonwealth aggregate sentence. In so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. 6. Whiteman must be adequately punished for persistent and calculated crimes committed against a large number of young girls. As a consequence he must be removed from the community for a considerable period. But eventually he must return to live in our community. He will need help. He has deviant sexual interests that he has acted on for all his adult life. It is hoped that gaol may deter him from future offending but he also needs appropriate treatment and monitoring. Without it there is a real risk he will offend again. 7. I must synthesise the many competing features discussed in this judgment. I have an obligation: * to vindicate the dignity of each victim; * to express the community's disapproval of the offending, and * to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending. Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, [52] to [58] 1. Ultimately, my duty as a sentencing judge requires I attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment - usually expressed in time in custody: Weininger v The Queen (2003) 212 CLR 629, at [24]. Orders Federal offences 1. The offender is convicted of each offence. 2. The court takes into account the fact that the defendant has entered a plea of guilty and has reduced the indicated sentence it would otherwise have imposed by 25%. 3. I indicate the following sentences: Police Reference Number H75711282 1. Sequence 60 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 62, 66, 68) I indicate a sentence of 3 years 3 months 2. Sequence 63 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 70,72) I indicate a sentence of 3 years 3 months. 3. Sequence 79 Use carriage service to transmit indecent material -Taking into account the matters on the s.16BA schedule (Seq 57, 58) I indicate a sentence of 3 years. 4. Sequence 83 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 75, 77) I indicate a sentence of 3 years. 5. Sequence 85 Use carriage service to engage sexual activity- I indicate a sentence of 2 years. 6. Sequence 89 Use carriage service to transmit indecent material - Taking into account the matters on the s.16BA schedule (Seq 59, 73) I indicate a sentence of 3 years 9 months Police Reference Number H73383221 1. Sequence 3 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (H75711282 Seq 87, 91) I indicate a sentence of 4 years 1 month. 1. I impose an aggregate sentence of imprisonment of 11 years to commence on 04/03/2020 2. I fix a non‑parole period of 7 years to expire on 03/03/2027, on which date, subject to s 19AL Crimes Act 1914, you are (subject to any other sentence) to be released on parole. NSW Offences Police Reference Number H75711282 1. The offender is convicted of each offence. 2. The court takes into account the fact that the defendant has entered a plea of guilty and has reduced the sentence it would otherwise have imposed by 25% in accordance with s 25D Crimes (Sentencing Procedure) Act 1999. 3. The aggregate sentence reflects a finding of special circumstances. 4. I indicate the following sentences: 1. Sequence 17 Aggravated indecent assault - Taking into account the matter on the Form 1 (Seq 16) I indicate a sentence of 9 months 2. Sequence 19 Sexual intercourse child 14-16 -Taking into account the matter on the Form 1 (Seq 20) I indicate a sentence of 2 years 3 months 3. Sequence 22 Sexual intercourse child 14-16 - Taking into account the matter on the Form 1 (Seq 21) I indicate a sentence of 2 years 7 months. 4. Sequence 2 Sexual intercourse child 14-16 - Taking into account the matter on the Form 1 (Seq 4 & 5) I indicate a sentence of 3 years. 5. Sequence 55 Assault with act of indecency - I indicate a sentence of 1 year 6 months. 6. 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. 7. 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. 8. 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 9. Sequence 6 Possess Child abuse material - I indicate a sentence of 2 years 3 months. 1. The total aggregate sentence is 10 years. 2. 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. 3. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 04/03/2032. 4. The total effective sentence is 16 years with a non-parole period of 12 years. 5. Sentence explained to offender by His Honour. 6. Offender warned about application of Crimes (High Risk Offenders) Act 2006 - Sect 25C ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2021