R v Whitby [2010] NSWDC 214

District Court New South Wales

Medium Neutral Citation: R v Whitby [2010] NSWDC 214 Hearing dates: 27 August 2010 Decision date: 08 October 2010 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The overall sentence is one consisting of a non-parole period of 26 years with a head sentence of 32 years. Catchwords: CRIMINAL LAW - Sentence - Child sexual abuse - Possess child pornography - Use child for pornographic purposes - Offender video recorded his offences - Some offences in worst category - Relevance of circumstance that offender may die in gaol Legislation Cited: Crimes Act 1900 Cases Cited: Colburn v R [2009] TASSC 108 De Simoni v The Queen (1981) 147 CLR 383 R v Bell [2002] NSWCCA 2 R v Dunn [2004] NSWCCA 346 R v Hitchen [2010] NSWCCA 77 R v Holyoake (1995) A Crim R 502 R v Harris (2000) 50 NSWLR 409 Category: Sentence Parties: The Crown David Shane Whitby Representation: Counsel: M Tedeschi QC - Crown P Young SC with N Mikhaiel - Offender

Solicitors: Director of Public Prosecutions Legal Aid Commission File Number(s): DC 2009/00160346 Publication restriction: Pursuant to orders made on 27 July 2018 paragraphs [64] - [86] have been redacted for publication.

SENTENCE

Introduction 1. David Shane Whitby is a man who has spent a large part of his life performing gross acts of sexual abuse on many children including, on one notable occasion, a child in nappies. He accurately describes himself as a child molester, and has forced children to describe him as a paedophile. 2. As well as an offence of possessing child pornography, he now appears to be sentenced for an enormous number of offences relating to the sexual abuse of eight children over a ten year period. Some children were abused on only one occasion whilst others were abused repeatedly. What the offender did can be determined with some precision too because, somewhat remarkably, the case against him was proved by hours of video recordings made by the offender in which he recorded his awful crimes. Those recordings enabled me to see the full horror of the way the offender treated innocent children for his own perverted sexual pleasure. 3. Those video recordings came into possession of the police after their discovery by a Mr GH. He handed them to the police, who patiently viewed the recordings to identify precisely what the offender had done, and to whom he had done it. He then faced trial before me on an indictment containing 120 counts. Indictments of this size are almost unheard of yet, remarkably, those 120 counts reflect only a small proportion of the offences shown on the offender's video recordings. 4. Police prepared a written summary of the recordings which the offender had placed on various DVDs. That summary became exhibit 81 in the trial. It sets out, in graphic detail, what can be seen on the various DVDs. As the issue during the trial was not whether the offences referred to in exhibit 81 occurred, but was whether it was the offender doing them, it was not necessary for me to view all 120 offences being committed. My task during the trial was to determine whether I was satisfied beyond reasonable doubt that it was the offender depicted in the DVD recordings. For reasons which I gave at the time I convicted the offender, I was satisfied that it was him. 5. However, quite appropriately, the Crown did play to me some significant extracts from the recordings. I was thus able to view exactly what the offender did. In other respects, for the purposes of both the trial and sentencing, the Crown and the offender were content for me to rely on exhibit 81. This meant that it was not necessary to expose more people than was absolutely necessary to the distressing material shown on the DVDs. It is appropriate for me, at this stage, to commend the police officers for performing such a distasteful, but extremely valuable, task. Much of the behaviour viewed and described by the police involved offending of a most disturbing and extreme kind. Their painstaking work was of benefit to all of us who have dealt with this matter. 6. There are many difficult aspects which arise in the sentencing of the offender. Some arise from the confronting nature of the offender's misconduct. But other problems are more technical, arising from the sheer number of offences committed by him. For example imposing sentences appropriate to each individual offence at the same time as imposing sentences which recognise, in a significant way, the fact that more than one victim has been affected by the offender's criminal activity, would lead to an overall sentence of many hundreds of years. It has to be recognised that the present sentencing exercise will involve, more than most, a compromise, as I attempt to comply with the various principles of sentencing, which have not always been formulated in contemplation of cases of this nature. For example, as will be seen when I announce the sentences, compliance with the totality principle has meant that the offender will receive only a modest increase in his overall non parole period for the most revolting of his crimes.