R v Whale [2020] NSWDC 383 | Case summary

R v Whale [2020] NSWDC 383 | Case summary | Zoe

[5]

Kik is an electronic application that enabled the Offender and the AOI to communicate via private instant messages. 5. At 3:36pm on 22 June 2018, the AOI sent the first message using the Kik application to username "naughtygirlsneeded". The Offender confirmed receipt of the message. The name "Tony" was registered to the username "naughtygirlsneeded". The name "Paige" was registered to the AOI. 6. The Kik application was located on the Offender's mobile phone at the time the mobile phone was seized from the Offender when he was arrested on 12 July 2018. 7. The next series of messaging occurred between the AOI and the Offender on 25 June 2018. In that series of messages, the Offender: a. Expressed that he wanted to kiss and 'finger' the AOI; b. Offered to teach the AOI 'how to play with a man'; c. Requested that they meet in person after school or in school holidays; d. Asked whether the AOI had masturbated before; e. Directed the AOI through masturbation; f. Requested a photo of the AOI; g. Sent a photo of himself to the AOI; h. Acknowledged that he understood that the AOI was 14 years old and made references to the AOI going to school. 8. Examples of some of the messages exchanged between the AOI and the Offender on Kik on this date are: Offender: what year are you in? AOI: 8 … Offender: When were you 14? AOI: in feb Offender: wonderful AOI: lol Offender: so kiss you, finger your pussy, have you play with me … Offender: so maybe after school, or on the weekend. AOI: wud u cum here or i cum to u? Offender: easier if I come to you I guess. What school do you go to? … Offender: unzip your jeans put your hand in your panties AOI: ok Offender: what dress size are you btw? fingers between your legs so you can rub your pussy AOI: most 8 K nice and small Offender: do you know where your clit is? … and you play with me…stroking me with your hand Offender: yes I want to kiss your young body … so tonight, go to bed and thing about being touched, as you masturbate AOI: ok I will talk tomoz? think about me kissing you all over. Offender: Can you send me a photo of you? Maybe in in a little skirt and top yes talk tomorrow. I want you to be my baby girl. AOI: k U want me to send phot now o tomoz? Offender: whenever you can AOI: will you send me one? Offender: Yes (image file sent) AOI: that me and a bear … Offender: no you're gorgeous such a sexy body for 14 AOI: (image file sent) Offender: omg you are so sexy Want to have you so much

[8]

In this same telephone conversation, the Offender confirmed the details of where and when to meet; namely, the week after when the AOI was on holidays and at the AOI's house in Westmead. 16. The Offender and the AOI said they will continue messaging on Kik in the interim. 17. Inquiries were made with the phone carrier of the AOI's phone number and the number used to call the AOI. Vodafone confirmed that the mobile number 0409 390 939 was used to communicate with the AOI and this number was subscribed to Tony Whale. Ongoing communication 18. Between 28 June 2018 and 11 July 2018, the Offender and the AOI communicated on Kik on eight further occasions. During these conversations, the Offender: a. Was reminded that the AOI was 14 years old; b. Asked whether the AOI has watched pornography and encouraged her to "do some research on giving hand jobs on the internet"; c. Expressed how he would like to perform sexual acts on the AOI, such as "have you play with my cock" and "kiss you, caress and enjoy your body… play with your pussy… make you feel nice… make you cum"; d. Expressed how he "absolutely love[s]" that the AOI is only 14 years old; e. Asked if the AOI masturbates and encouraged her to do so; f. Asked the AOI if she could do a video call; g. Expressed concern over getting in trouble "if we were caught"; h. Made arrangements to meet with the AOI. 19. Examples of some of the messages exchanged between the AOI and the Offender on Kik between 28 June 2018 and 11 July 2018 are: 28 June 2018 Offender: [After describing how he would digitally penetrate the AOI and "making you cum"] the Offender stated "well, it would be ideal if your mum is working one day in the holidays??…. you'll want me playing with you as often as possible… I thought you were going to wait till the holidays week after next…. But whenever you can is fine with me" "So if your mum is at work one day, maybe we can go to your place? As long as no one else is around… wow.. want you so much Paige… well you're only 14 ……but I absolutely love that you are" 2 July 2018 Offender: "…. What day do you think will be best? ... Having a man teach you about sex??... have you ever watched anything about sex on the Internet? … I'm going to enjoy you so much Paige" 3 July 2018 Offender and AOI discussed meeting on "Thursday next week" while the AOI's mother was working late that day. The AOI asked the Offender what he wanted to do to her and the Offender stated: "Kiss you, caress and enjoy your body… play with your pussy… make you feel nice make you cum!" 6 July 2018 The AOI confirmed she was on holidays and the Offender detailed how he would engage in sexual activity with the AOI when they would meet on the Thursday, including "playing with [her] pussy" and "have [her] play with [his] cock". The Offender confirmed he would be at the AOI's house around 1 or 1:30 pm on Thursday. 9 July 2018 Offender confirmed he will be coming by car on the Thursday to Westmead near the hospital. The Offender asked the AOI if she had masturbated between the last communication and this one and he said "I'll show you Thursday". 10 July 2018 Offender: I mean you'll get into trouble, but it would be worse for me if we were caught AOI: omg I don't want anyone to get into trouble Offender: cause you're so young, I have to be sure I mean I love that you're so young

[10]

12 July 2018 At 12:30 pm the AOI texted the Offender from a mobile phone that her mother had left the house. Meeting and Arrest 20. At approximately 12:30 pm on 12 July 2018, the Offender was seen by Police in the driver's seat of a Hyundai i30 parked on the street that was provided by the AOI. 21. At approximately 12:45pm, Detective Sergeant Long and DSC Gatward approached the Offender in the vehicle. The Offender told NSW police that he was there "to meet a girl" who he believed to be "14 or 15 I think" (the Offender accepted in his interview with Police that he said this to Detective Sergeant Long). The Offender was placed under arrest, cautioned and conveyed to Parramatta Police Station. Record of Interview 22. On 12 July 2018, the date of arrest, the Offender participated in an electronically recorded interview. At the time of the interview the Offender did not know that "Paige", the girl he had been speaking to, was an AOI. 23. During the interview, the Offender accepted that "Paige" was 14 and stated the following: He attended Helen Street, Westmead to meet a 14 or 15 year old girl; He intended to meet her to warn her off meeting older men and to kiss her; He was the only person who used the Huawei phone that was found in his vehicle; He was the person who communicated with the AOI over 'Seeking Arrangement', Kik and over the phone; He was told by the AOI that she was 14 years old; He did speak about sexual things with the AOI and acknowledged that it wasn't something that he should have said to a 14 year old; He did not have a sexual interest in children but did have a sexual interest in "young girls"; He did not have the intention to engage in sexual activity when he attended the address but did have the intention to kiss and cuddle the AOI; He acknowledged that it would not be appropriate for him to kiss and cuddle a 14 year old; He told the AOI how to masturbate and explained how she should do it. 24. The Offender gave evidence during the trial in which he stated he always believed that Paige was not 14 years old and that the Kik chat messages was fantasy talk. The jury verdict showed a rejection of the Offender's evidence in the witness box and his denials in the interviews with Police. Search 25. Detectives conducted a search of the Offender and his vehicle and seized one Huawei mobile phone. The Offender provided the PIN number for the phone. Phone data was extracted from the Huawei. The outgoing calls list of the Huawei records the telephone call to the AOI on 27 June 2018. The phone also contained the images the AOI sent the Offender between 22 June and 12 July 2018 and the image he sent the AOI.

[14]

The offender's subjective circumstances

Due to the offender not being called at the sentence hearing, one must therefore draw his subjective circumstances from the documentary evidence and, in particular, the report from Mr Borenstein and the SAR. In these circumstances caution must be exercised as to the weight to be given to the untested histories in such reports: Imbornone v R [2017] NSWCCA 144 at [57], per Wilson J, Hogan CJ at CL and R A Hulme J agreeing.
The offender was born in Sydney as an only child to his parents who are now both deceased. His father worked as a jeweller and in spare parts and his mother worked at David Jones as a shop assistant. He described his childhood as "alright". There was no history of trauma, abuse or domestic violence in his family.
As to his schooling, he attended Pennant Hills Primary and the Hills High School. He told Mr Borenstein that he was bullied throughout high school. After obtaining his school certificate in year 10 he left school during year 11. He worked in "lots of odd jobs". However, he trained as a presenter and worked on radio for some time. He also studied as a mature age student at University but did not complete the courses. He has also worked in public relations, owned a restaurant and for the last five years prior to the subject offending, he worked as a driving instructor.
As to his personal relationships, his first marriage lasted about one year. However, his second marriage lasted some 25 years before he and his wife, a clinical psychologist, separated after his arrest. His son and daughter mentioned are now aged 22 and 17 respectively. Since his arrest he has had limited contact with them.
After obtaining bail, his wife assisted him in moving to Newcastle where he lived with his aunt and uncle for approximately 12 months before going into shared accommodation.
He described his second marriage as involving no sexual intimacy for at least 18 months prior to his offending and he told Mr Borenstein that he takes medication for erectile dysfunction. He also told Mr Borenstein that he does not take illicit drugs, smoke tobacco or gamble and drinks no more than a bottle of wine a week.
As to his mental and physical health, he told Mr Borenstein that he has no history of psychiatric or psychological disturbance and has taken medication for hypertension for about 15 years. He denied any history of depression or anxiety although Mr Borenstein refers to the opinion of a Dr Baird who speaks of the offender having symptoms of depression. There is no evidence from the Dr Baird.
At interview, Mr Borenstein said that the offender was tense, anxious and agitated as well as being moderately depressed but there was no suggestion of any serious psychiatric disorder. Mr Borenstein also administered a number of neuropsychological tests which revealed, inter alia, a "moderate potential for emotional and/or behavioural problems of clinical significance", elevated results for social withdrawal and alienation, and results in the normal range for depression, anxiety and stress.
As to his opinion, Mr Borenstein was of the view that there was nothing in the offender's personal or clinical history "to predict criminogenic or antisocial tendencies" or "sexual aberration or paraphilia."
As to the offender's risk to the community, Mr Borenstein was of the view that he presented a low risk of reoffending with an estimated recidivism rate of less than 5% over the next five years.
As to his treatment needs, Mr Borenstein opined that these were not substantial but rather he was "suitable for low intensity course (sic) of therapy focusing, in particular, on his lack of social support."

[15]

The offender's prospects of rehabilitation

In circumstances where an offender continues to maintain his innocence, it is always difficult to come to a positive conclusion as to his or her prospects of rehabilitation. Nevertheless, Mr Borenstein was, as stated, of the view that he presented as a low risk in relation to reoffending.
Michael Akhurst the Community Corrections officer who authored the SAR was somewhat more circumspect and expressed the view that whilst the offender "described the nature of his offending in negative terms… he appeared to displace his own actions as being outside of that description." He also spoke of the offender appearing to "justify his behaviour through his belief that he was engaged in interactions based on fantasy, in that the person he was communicating with was older than 14." Ultimately, Mr Akhurst assessed the offender as presenting as a "medium - low risk of reoffending."
In the case note annexed to Mr Akhurt's SAR, the staff member who prepared same states that after administering the STATIC-99R test he believed that the offender presented in the "very low risk range relative to other male sexual offenders."
In oral submissions Mr Flood argued that the offender's prospects of rehabilitation are in fact very good pointing to the offending taking place over some three weeks in the 60 plus year lifespan of an otherwise law-abiding individual. He also referred to that the offender being on strict bail condition since August 2018 without any breach, let alone the commission of other offences.
Given the opportunity, the Crown had "nothing to say" as to Mr Flood's submissions as to this issue.
Despite the offender's maintenance of his innocence, I am of the view that that he is unlikely to reoffend and his prospects of rehabilitation are good. In this regard, I should also note that he still has some family support from his wife and children as borne out by their testimonials and the fact that his wife and son attended the courthouse for his sentence hearing but due to the coronavirus only one was allowed to enter court which led them both to decide to stay outside.

[18]

The discounts sought for "facilitating the administration of justice"

Mr Flood argued that the offender should receive a discount on his sentence in the order of 5% due to the efficient way the trial was run. In this regard, he pointed to an agreed statement of facts being tendered, together with an agreed folder of exhibits and the only witness in the Crown case being the officer in charge, all which he said saved court time. In support of this proposition he referred the court to the sentencing remarks of Whealy J in R v Elomar & Ors [2010] NSWSC 10 as well as the decision of Blackmore AJ in R v Spadina [2015] NSWSC 933.
The Crown opposed any such discount, arguing that this matter did not fall into the category of case were such an allowance could be made. In this regard, Whealy J in Elomar at [92] indicated that he proposed to take into account Elomar's legal representative's efforts "from the outset… to facilitate the cause of justice by suggesting or advocating possible methods to short-circuit the length of the trial and make the reception of evidence more efficient" in circumstances where such proposals were not shared among co-offenders and the trial lasted some 11 months. Whilst taking this "into account" in Elomar, Whealy J does not specifically indicate whether he did so by allowing a percentage discount or rather did so more generally although the latter would seem to be the case.
In Spadina at [131] to [133] Blackmore AJ allowed a 5% discount because of the "offender's willingness to facilitate justice by cooperating with the Crown so as to shorten the proceedings." However, this involved the defence on a number of occasions making "real concessions that substantially shortened the proceedings and resulted in the Crown not needing to call a large number of witnesses some of whom would have been required to attend from overseas." His Honour went on to state that this "must have saved considerable Crown funds."
The trial in the current matter lasted five days excluding jury deliberations. The officer in charge was also the AOI so it is not surprising that he was the only witness in the Crown case. He was nevertheless in the witness box for more than a day. The agreed facts document was little over one page in length and contained matters which would have taken little time to formally prove. Whilst the trial ran efficiently this is also now required of counsel pursuant to the Bar Rules.
In my view, the Crown is right in submitting that the savings in this case are not of such degree that any discount should be allowed on the basis argued.

[19]

Factual Disputes

Before dealing with the objective seriousness of the offending, it is necessary to deal with some areas of dispute between the parties arising from the "statement of facts" document mentioned. Even though this document was stated to evidence the facts "which the jury must have found proven by virtue of the guilty verdict" there was nevertheless still some disagreement between the parties as to exactly what were such facts. In this regard, the Crown submitted "that the jury must have found the following matters proven beyond reasonable doubt: 1. That between 22 June 2018 and 12 July 2018 the offender believed he was communicating with a 14-year-old girl called "Paige" (the AOI); 2. That the offender in his Kik electronic communications and in his telephone call with who he believed was a 14-year-old girl, sent sexually explicit words to her and other statements intending to gain her trust, to show his experience and ultimately to encourage her to engage in sexual activity with him; 3. That this was not "fantasy" talk; and 4. That the offender on 12 July 2018 drove to a house in Westmead to meet up with who he believed was a 14-year-old girl evidencing his intention of engaging in sexual activity with her"
On behalf of the offender Mr Flood submitted that "the jury's verdict determined that: 1. (The offender) believed that the AOI was a girl aged 14; 2. (The offender) used internet communication to encourage the recipient to engage in sexual activity with him; 3. The content of the communications as presented in exhibit B was sent and received by the offender; 4. (The offender) drove to the address provided by the AOI to meet with the recipient of his internet communications.
The first issue raised by Mr Flood was that the jury verdict did not, as submitted by the Crown, "determine that none of the chat was fantasy talk, conducted with a girl (the offender) believed to be 14 years old."
Having sat through the trial and examined the transcript closely I am satisfied beyond reasonable doubt that none of the "chat" was "fantasy talk."
Secondly, Mr Flood submitted that "as long as the Court's findings don't contradict the jury verdict it is open for the Court to find that sexual activity of a degree less than that expressed in the communications was what an offender actually had in mind." In support of this proposition, Mr Flood cited Tector v R [2008] NSWCCA 151. Mr Flood argued that I should accept the "spontaneous statement to police" the offender made upon his arrest "that all he planned to do was kiss the recipient."
Whilst accepting that in an appropriate case the Court could find that the sexual activity that an accused had in mind was less than that expressed in the relevant communications, in my view, the terms of the communications in this matter can be accepted beyond reasonable doubt as a true reflection of the level of sexual activity that the offender had in mind.
Finally, Mr Flood submitted that the court could not find beyond reasonable doubt, as argued by the Crown, that the offender's communications were "strategic" in the sense that they revealed planning to achieve a particular goal, namely to engage in sexual activity with "Paige". As to this, Mr Flood went on to submit that if "the court cannot exclude the reasonable possibility that some of the offenders chat with the AOI was fantasy talk then it follows that it is a reasonable possibility that the words he used were not used with the strategic intent of procuring the recipient." He further argued that this was "opportunistic offending" "rather than some well thought out and developed strategy that he considered and then implemented in his offending."
Whilst from the offender's point of view his initial contact with the AOI was opportunistic, in my view, it quickly turned into a plan to procure the recipient for sexual purposes.
In this regard, the offender familiarised "Paige" with his sexual language, initiating and persisted with the idea of a meeting, stated that he would "teach her" how to be with a man, encouraged her to masturbate and watch pornography so she would know what to do when they meet up, gained her trust and finally arranged to meet her at her home when he believed her mother would be absent for a considerable period.

[20]

The objective seriousness of the offending

Turning to an assessment of the objective seriousness of the offending in the present matter I was referred to a number of authorities where the relevant factors were discussed: see Tector v R (supra) at [94]; R v Fuller [2010] NSWCCA 192 at [30] - [35] and R v Asplund Asplund v R [2010] NSWCCA 316 at [8] (a grooming case pursuant to section 474.27(1) of the Code).
Further, each party pointed to various additional factors in their oral and written submissions.
In my opinion, the following factors, in no particular order and all of which are present in this matter, increase its objective seriousness; 1. The age differential between the offender and the recipient of approximately 50 years. 2. The fact that once contact had been made, the offender was relatively persistent in pursuing the recipient. 3. The fact that the offender initiated the idea to meet and persisted in such meeting's planning. 4. The fact that the offending occurred over three weeks and demonstrated a relatively strategic course of criminal conduct. 5. The fact that many of the messages were sexually explicit and outlined the offender's deliberate and clear desire to engage in sexual acts including sexual intercourse with the recipient. 6. The fact that the offender understood what he was doing wrong, stating in several communications that he was concerned about getting "caught". 7. The fact that the offender drove at the agreed time to the planned meeting place intending to have sexual intercourse with the recipient.
On the other hand as pointed out by Mr Flood, the following aggravating factors were absent in this matter: 1. Hundreds of communications over a lengthy period of time. 2. A monetary offer as a form of inducement. 3. The existence of an actual victim. 4. The taking advantage of a pre-existing relationship with the victim or the abuse of a position of trust. 5. The sending or requesting of indecent images.
During oral argument each party was given the opportunity of making submissions as to where in the range of objective seriousness this matter fell. The Crown submission initially was it fell into the lower end of high range or the upper end of mid-range but upon reflection this changed to the matter falling in the mid-range for offences of this type.
Mr Flood submitted that if I found that the offender intended to do no more than kiss the recipient the matter fell "at the low end of the spectrum of objective seriousness and well below mid-range." On the other hand, if I was of the view that the content of the communications reflected the offender's intent then the matter fell "below mid-range or at the bottom end of a mid-range offence."
The offender's conduct was quite serious. It involved a degree of strategic planning, although I accept that the initial contact was opportunistic. The offender persisted over some weeks in moulding and educating the recipient. In addition, he raised and persisted with the idea of a meeting and was eventually arrested at the intended meeting point. He was also much older than the recipient. Nevertheless, a number of aggravating features as outlined were not present in the offending.
Balancing the various factors I am of the view that the objective seriousness of the offending was just below mid-range.

R v Whale

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)