District Court New South Wales Medium Neutral Citation: R v Whitby [2015] NSWDC 287 Hearing dates: 21 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Re-open the sentencing proceedings under s 43 of the Crimes (Sentencing Procedure) Act. Sentenced to imprisonment with a head sentence of 12 years with a non-parole period of nine years. There is no alteration to the overall effective sentence. Catchwords: CRIMINAL LAW – Sentence correction - Sentence imposed for one count exceeded maximum available. Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown David Shane Whitby Representation: Solicitors: Solicitor for Public Prosecutions Self represented File Number(s): 2009/160346 Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants Judgment 1. HIS HONOUR: In October 2010 I sentenced David Shane Whitby for a very large number of offences primarily involving the sexual assaults of children. I imposed 105 separate sentences. The effective overall sentence was a period of imprisonment for 32 years with a non-parole period of 26 years. 2. Some considerable time later I was alerted to a possible error in relation to a sentence I imposed for one particular count. It is apparent that staff at the Judicial Commission, when compiling sentencing statistics, realised that I had imposed on count 19 a sentence which was longer than the maximum penalty for that offence. They were concerned for two reasons, firstly they were not sure how to reflect my order in the statistics kept by the Commission, but secondly, and more importantly, they were concerned that I had made an error. 3. Mr Hugh Donnelly, from the Judicial Commission, wrote to me alerting me to this potential problem. I have reviewed the matter and I am satisfied that I have fallen into error as Mr Donnelly suggested. 4. Accordingly I had my Associate contact the Prosecution and attempt to contact lawyers acting on behalf of Mr Whitby. It is apparent that now no lawyer holds instructions from Mr Whitby. Accordingly the solicitor from the DPP wrote to Mr Whitby alerting him to this issue and advising him of a suggestion that was to be made by the Prosecution which would correct the error. 5. Mr Whitby has appeared unrepresented today, I have spoken to him about what I propose to do and he said that he did not wish to make any submissions regarding that proposal. 6. Accordingly I re-open the sentencing proceedings under s 43 of the Crimes (Sentencing Procedure) Act. Instead of the sentence which I imposed on count 19 on 8 October 2010 I will sentence Mr Whitby on that count as follows: I sentence him to imprisonment with a head sentence of 12 years with a non-parole period of nine years. No other sentence for any other count is to be changed. I confirm that that alteration makes no change at all to the overall effective sentence, thus the date on which Mr Whitby's non-parole period expires and the date on which his head sentence expires remains the same. ********** 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: 09 December 2015