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.
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.
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.
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.
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.
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.
[2]
The Nature of the Particular Sexual Acts
Before I start to describe the various offences I should say something by way of introduction about the objective gravity of the various forms of sexual intercourse that the offender was shown to have performed with his victims.
There is no clear hierarchy of seriousness of the various forms of sexual intercourse which are covered under s 61H Crimes Act. Each case requires an individual examination which includes not only the type of sexual intercourse but all the surrounding factors. On the other hand some forms of sexual intercourse are, by their very nature, often more serious than other forms, for example those likely to cause pain especially when inflicted upon young children. Accordingly when assessing the appropriate sentence for each of the individual counts on the indictment I have had regard to the form of sexual intercourse involved where that is an element of the particular count. But it is simply not the case that it necessarily follows that, for example fellatio is less serious than penile/anal intercourse. Whilst it may be accepted that fellatio is likely to be less painful than anal intercourse, it is capable of being regarded, particularly by the victims of the offence, as more intimate, more personal, and therefore in the circumstances of this case more serious. Similar things can be said about those acts where the offender performed cunnilingus. And in any case, as I will discuss in more detail below, an act of cunnilingus can still be an act in the worst category of offences involving sexual intercourse because of the heinousness of other circumstances surrounding the offence.
[3]
Non Publication Order
I remind those present that I have made an order that there is to be no publication of anything which would identify, or tend to identify, the names of the victims of these crimes. Although I am using the initials of the victims (the same initials I used in my earlier judgment convicting the offender), it may well be that publication by the media of those initials would tend to identify them. For that reason I do not consider it appropriate that the media reports of this matter use the initials that I am using.
This case has, for obvious reasons, generated a lot of publicity and the consequences for the victims of these crimes would be even more substantial than they already are, if their identity were to become more widely known. They have suffered enough because of what the offender did to them.
[4]
LW3
The vast majority of the offender's crimes were committed against LW3 . The offender abused him over a very lengthy period from when LW3 was eight to when he was 13. Although the offender was convicted on 91 separate offences involving LW3, that is but a small proportion of what the offender actually did. It was very sad, and indeed disturbing, to watch the various DVDs which showed LW3 as he grew up, and came more and more under the influence of the offender. It is clear that the offender manipulated LW3 by offering money, alcohol and drugs. Indeed on occasions LW3 can be seen with a bong on the video recordings made by the offender.
All of these offences occurred when the offender was supposed to be caring for LW3 and were committed not only for the offender's immediate sexual gratification but also for his later sexual gratification as he viewed the video recordings he had made.
The effect on LW3 was clearly apparent from the video recordings themselves. As a result of repeated abuse he began to accept it as commonplace, participating in humiliating and bizarre conduct, even to the extent of talking to his mother on the telephone as the offender masturbates him.
I will begin with the most serious category of the offences committed against LW3 which are, are of course, those involving sexual intercourse. The various forms of sexual intercourse include:
The offender performing fellatio on LW3,
LW3 performing fellatio on the offender,
LW3 penetrating the offender's anus with a dildo,
LW3 penetrating the offender's anus with a carrot,
The offender penetrating LW3's anus with his finger,
The offender penetrating LW3's anus with his penis and
The offender penetrating LW3's anus with a dildo.
Counts 5, 7 - 9 and 11 -18 are allegations against S 66A(1) Crimes Act. The Crown was unable, for obvious reasons, to identify a particular day on which the offences were committed. The period in which it chose to allege that the offences occurred (which commenced on 31 January 2003) straddled a legislative change by which the maximum penalty for offences under S 66A(1) was increased and a standard non parole period introduced. Although usually the date of an offence is not an element that has to be proved beyond reasonable doubt, in appropriate cases time can become of the essence. I am satisfied that this is one such case and so for the purposes of sentencing the Crown has to satisfy me that the offences occurred after the penalty was increased. I am not so satisfied. Although it is more likely that the offences occurred after the penalty had been increased the Crown has to prove that aspect of the case beyond reasonable doubt. There is no particular evidence that the Crown can point to to assist so of course whilst I am satisfied beyond reasonable doubt that the offences occurred, I am not satisfied beyond reasonable doubt that they occurred on or after 1 February 2003. This means that for the offences to be found in counts 5, 7-9 and 11 -18 the maximum penalty is 20 years imprisonment with no standard non-parole period.
Let me now set out the circumstances of the offences.
Count 5 was an offence committed by the offender whilst wearing a suspender belt, stockings, a body suit and black high heel boots. He was wearing a mask over his eyes and his penis was showing from a hole cut in the crotch of the body suit. He then performed fellatio upon LW3. Count 7 is another offence of the offender performing fellatio on the child occurring soon after Count 5, and Count 8 involves the child performing fellatio on the offender.
Counts 9 to 18 all appear to occur as part of the same episode of sexual activity. It is important to understand that before the offences are actually committed the recording of them shows that LW3 is reluctant to do what he is asked and that the offender is aware of his reluctance, but persists, overcoming LW3's reluctance by offering money, alcohol and drugs. I will take some time to explain.
Before the offence in Count 9 is committed LW3 asks, "How much money do I get for this". The offender replies "you'll probably get 50 bucks". Next LW3 says,"I'm embarrassed. It's just weird" and later "I'd better get paid extra for this or I'm going to get pissed", the offender says, "what for being so kinky?" and LW3 replies,"yeah".
After further activity the offender says to LW3, "you're not digging this are you". At one stage LW3 attempts to leave, saying, "you said it would only be two minutes more". After Counts 9 and 10 were committed LW3 says, "When are we going to get our money. I want the money". After further activity LW3 says, "Let's stop now" but the offender says "no I haven't finished yet". After Count 15, the offender is shown to supply alcohol to LW3 and after Count 18 the offender hands LW3 a bong and a lighter and says "Sit down to do the cone". The child then smokes from the bong a number of times. The offender asks if he wants more and hands the bong back to the child who proceeds to smoke from it once again. Whilst that occurs sexual activity is continuing.
These offences are made extremely serious by the existence of a number of aggravating circumstances. The offender is aware that LW3 does not really want to do what he wants him to. He overcomes this reluctance by offering money, alcohol and drugs.
Counts 13 and 14 involve LW3 performing fellatio on the offender and Count 16 involves LW3 putting a dildo in the anus of the offender.
For all of the offences I have just described LW3 was a mere 8 or 9 years old. So, by the time he turned 10, he had experience his prepubescent penis being fellated by the offender, he had fellated the offender's penis, and he had put a dildo in the offender's anus, and how did the offender achieve this child's co-operation? By giving him money, alcohol and drugs
Of course the offences could have been worse but nevertheless I find that objectively these offences are significantly above the middle of the range of objective seriousness.
The problem regarding the date range straddling 1 February 2003 does not arise on other offences where the increased maximum penalty (of 25 years) and standard non-parole period (of 15 years) clearly apply. In count 19 the form of intercourse involved was the offender performing fellatio on LW3 while masturbating himself. At the time both are dressed in female clothing and wearing wigs. At first LW3 is reluctant to show his face, but the offer of money, the offender saying "she is not going to pay a lot of dollars if you look like that", persuades him otherwise.
As I mentioned earlier, offences involving "sexual intercourse" as defined in the Crimes Act cover various forms of sexual activity. Thus in assessing whether conduct is in the middle of the range of objective seriousness of such offences, I must take into account the particular form of sexual intercourse to which count 19 relates, and that it was the offender who performed the act of fellatio, not the child. Notwithstanding these features I find that the offence is slightly above the middle of the range of objective seriousness given the way in which both of them were dressed, the fact that the conduct was filmed for the offender's later sexual gratification, and the reluctance of LW3 to be filmed, that reluctance being overcome by the offer of money.
That finding would suggest, in the absence of mitigating features, a non parole period of slightly more than 15 years imprisonment.
In his submissions to me the Crown Prosecutor made particular reference to Count 86. This was an allegation of sexual intercourse with a child between the ages of 10 and 14 in which the offender penetrated the anus of LW3 with his penis when he was aged somewhere between 11 and 13. It is important to note that the Crown does not ask me to find that LW3 did not consent to the particular sexual activity covered by that count. It is also important to note that in the lead up to this offence other offences occurred in the course of which the offender again refers to the supply of drugs to LW3 saying "give it a couple of minutes and we'll do a cone".
The particular conduct the subject of Count 86 commences when the offender puts his penis between the cheeks of the child's buttocks and says, "Can I drill ya?". The offender then penetrates the child's anus with his penis. I repeat, at the time LW3 was between the ages of 11 and 13 years. It is significant that despite the conditioning to which I have earlier referred LW3 is extremely reluctant to do what the offender wants him to do. But, because of the vast number of the earlier offences which had been committed upon LW3 by this time, eventually he just gives up and allows the offender to penetrate him with his penis. Although it appears that the offender does not ejaculate what followed afterwards is worthy of mention. Having removed his penis from LW3's anus he then pleads with LW3 to perform fellatio on him. Not surprisingly LW3 refuses.
Although this conduct is objectively not in the worst category of offending it is not far from it. The fact that the child's participation was clearly influenced by the offer of drugs, the fact that this offence did not occur in isolation, the fact that the child was reluctant, the fact that the offender recorded this for his later sexual gratification and the fact that the form of intercourse involved was one where the offender penetrated a child's anus with his penis all demonstrate the inevitability of the finding I have made regarding the objective seriousness of the offence.
There is little point in going through everyone of the 91 offences involving LW3. It is a regrettable consequence of the sheer number of offences that sentences for them will be served, to a large extent, concurrently. I should emphasise however that I have not approached this difficult task in some sort of "global" fashion. Each one of the 91 offences is well described in the synopsis of the DVDs prepared by the police, which was exhibit 81 at trial.
The vast majority of the crimes involving LW3 are offences of sexual intercourse with a child between 10 and 14. Most of those involve the offender performing fellatio upon the child, but there are a number where the offender penetrated the child's anus with his penis, his finger, or a sex toy. Other offences, not involving sexual intercourse as defined, included:
aggravated indecent assault of a child under 10, offences carrying a maximum penalty of 10 years and a standard non-parole period of eight years,
aggravated indecent assault, which has a maximum penalty of seven years but a standard non-parole period of five years,
inciting an act of indecency with a child under 10, which has a maximum penalty of 7 years imprisonment but no standard non-parole period
Insofar as the offences I have not specifically referred to have standard non parole periods, I am required to make a finding as to the objective gravity of the offending conduct, and how that compares to conduct in the middle of the range. Noting that the middle of the range is a continuum and not a single point, I find that in each case which I have not specifically mentioned, the conduct was in the middle of the range of objective seriousness. I should repeat immediately that this finding makes no difference at all to the overall sentence I will impose on the offender because all the offences I am referring to here have sentences which are to be served concurrently with other sentences.
It will be apparent that I have referred, in some cases, to offences being aggravated by the circumstance that they were recorded by the offender for his later sexual gratification. In the case of LW3 I have not done that for Counts 2 and 102 on the indictment because to do so would be to breach the rule in De Simoni v The Queen(1981) 147 CLR 383, the maximum penalty for an offence of using a child for pornographic purposes at that time carrying a higher maximum penalty than the offence of aggravated indecent assault.
Of course I have taken into account, in a very significant way, the effects that these offences have had on LW3. As might be imagined five years of relatively constant sexual abuse involving perverted and disgusting behaviour have had an enormous effect upon him. It is set out in the report of Dr Susan Hayes. There was no challenge to Dr Hayes' finding that; "as a result of the sexual assaults …(LW3) suffers from chronic severe PTSD, major depression and major anxiety disorder with panic attacks" and that he will "carry some of the effects of these sexual assaults throughout the remainder of his life". The sentences I impose upon the offender relating to his conduct with LW3 will demonstrate in a clear and measurable way, that the harm that LW3 suffered is a significant factor in determining the severity of the sentences.
The submissions from the offender suggested that the offering of money alcohol and drugs is a significantly less serious method of obtaining compliance than the use of actual or threatened physical violence. There are a number of things I should say about that submission. Firstly, I reject it - alcohol and drugs are well known to have addictive qualities, particularly where a person who is exposed to them at a very young age. Recent advances in medical science have shown that the consumption of such substances, again particularly at a young age, can effect a person's brain in a physical way. Secondly, even if the submission is right, it remains the case that the fact that such incentives were offered makes these offences more serious than if that factor had not been present.
[5]
LW1
The charges involving LW1 can conveniently, for the law at least, be divided this way: Firstly there is one offence of persistent child abuse under s 66EA of the Crimes Act, carrying a maximum penalty of 25 years imprisonment, and secondly there are a number of specific offences. The persistent child abuse count relates to the period after 14 June 2003, and was not based on any video recordings, whereas the individual counts, which were seen on the video recordings, were committed when LW1 was much younger.
I will deal with the specific allegations first and then return to the persistent child abuse offence.
A number of the specific counts were allegations of sexual intercourse with a child under the age of 10 years. The maximum penalty for these offences is 20 years imprisonment. The sexual intercourse consisted of digital penetration of the child's vagina and cunnilingus committed between when she was aged either six or seven and continuing until when she was aged between seven and nine.
Some offences, in particular those committed upon LW1 as she and the offender were watching a pornographic video were particularly disturbing. These offences can be seen on DVD number 9 and are the subject of counts 38 - 43. LW1 was aged approximately seven to nine years at the time. A very poignant aspect of these offences is that at the time, this young child was wearing pyjamas with Winnie the Pooh on them. And it is worth pointing out that by this time she had already been subject to repeated abuse at the hands of the offender. DVD 8 for example contains a number of offences, counts 34 - 36 which were committed upon her when she was aged but six or seven.
Some aspects of the recordings demonstrate how commonplace it must have been for the offender to molest her. Early in DVD 9 the offender is filming LW1. He instructs her to say the words "he's a paedophile", which she does. Although it is clear that all she really wants to do is watch cartoons on television (she actually says to him "I want to watch my shows"), the offender has other ideas. He is naked and masturbating his erect penis as he instructs LW1 to operate the video camera and film what he is doing. When the offender gets possession of the video camera he asks her to spread her legs for him.
Another scene shows the offender persisting, despite the child obviously telling him to stop what he is doing. The offender tries to rub the child's vagina on the outside of her pyjamas but she says "no". Nevertheless he continues what he is doing. He tries to remove her pants and she says "no I don't want to". He exposes his erect penis to the child masturbating as he does so. He asks her to masturbate him but she again says "no". He offers her ice blocks as a reward but she continues to refuse. Eventually it appears that the child gives in to his demands, masturbates his penis, removes her pants and exposes her vagina to the video camera.
The offender then performs cunnilingus on the child - count 38, penetrates her vagina with his fingers - count 39 and rubs his erect penis against the outside of the child's vagina - count 40. He again performs cunnilingus on the child - count 41 and does that in a different position - count 42. Eventually he ejaculates onto the floor.
Other scenes on DVD 9 are to similar effect. At one stage it is clear that there is a pornographic video playing on the television. The offender is masturbating in front of the child as she, being the age she was, plays with toys on the coffee table next to the TV. The child at one stage says "mummy, I want mummy", before looking at the TV and saying "ooh sex" before again telling the offender, "I want my mummy" as the offender masturbates in front of her. She then says to him "don't sperm". It is clear from this scene in particular just how commonplace sexual behaviour has become to LW1.
The next scene is on a different occasion. The offender is filming the child's vagina before penetrating it with a finger (count 43). The video recording then shows other sexual activity, including the offender getting the child to masturbate him and opening the labia of this child who was either 7, 8 or 9. Finally, the offender is shown masturbating himself, asking the child "can I blow on anything?" and "do you want to watch it?" The offender then ejaculates.
As regards this series of offences, together with the uncharged acts depicted also on the DVD, the Crown accurately submitted "the victim's disturbing unnatural familiarity with and acceptance of ongoing abuse is vividly demonstrated…"
Three things are clear from DVD 9:
The young girl, wearing Winnie the Pooh pyjamas, demonstrates that she is very much a child when she: asks for "mummy"; wants to watch cartoons on TV in preference to pornography; and plays with her toys,
She is reluctant to do what the offender wants her to do, but he offers her rewards such as iceblocks and persists until she gives in, and
Her exposure to sexual behaviour has been pervasive.
Although there is no absolute hierarchy of the seriousness of various forms of sexual intercourse, in the circumstances of this case I take into account that the two forms of intercourse, cunnilingus and digital penetration of the vagina, are less serious than other forms of sexual intercourse which the perpetrator could have perpetrated upon the child.
Of course there were many other individual offences committed including counts where the offender rubbed his penis against the child's vagina. One of those, count 93, occurred when the child was very young indeed, aged between four and six years of age. The maximum penalty for offences of indecent assault with a child under the age of 10 years is 10 years imprisonment.
Another of the specific counts concerns an incident, count 26, where the offender filmed the child's genitals when she was aged between three and six years of age. That is an offence of committing an act of indecency with a person under the age of 10 and carries a maximum penalty of seven years. In assessing the criminality of that offence I take into account of course that the offender does not actually touch the victim's genitals.
Returning now to the persistent child abuse offence, LW1 gave evidence of regular offending on Thursday nights when her mother went to the hotel. Determining the precise number of offences is impossible. In the trial the complainant was obviously very confused as to why it was that the lawyers were insisting on arbitrarily concentrating on a period after what appeared to the complainant to be a randomly chosen date. Nevertheless I am satisfied beyond reasonable doubt that there were many more than three separate acts of abuse consisting of cunnilingus, digital penetration of the complainant's vagina, rubbing his penis against the complainant's body, having the complainant masturbate him and masturbating himself in the presence of the complainant. In determining the number of specific acts I have paid more regard to the evidence regarding the circumstances in which they occurred than any estimate of their number given by the witnesses.
When LW1 was 10 and 11, the offender would look after her every fortnight when her mother went to a hotel on Thursday nights, and abuse would occur about half the time. This suggests about 25 occasions of abuse when she was 10 and 11. LW1 said that the abuse was less frequent after she turned 12. Erring on the side of caution, I am satisfied beyond reasonable doubt that there were at least 20 separate occasions covered by the persistent child abuse offence.
It is of course important to recognise that s 66EA was primarily intended to deal with procedural problems rather than sentencing problems. As a sentencer I am still required to consider such things as: The number of occasions that sexual abuse took place, the nature of the sexual activity, the age of the child at the time the abuse occurs, and the question of whether the offence was accompanied by any other acts such as violence or intimidation.
Once more I note that the actual conduct did not involve the more serious forms of sexual intercourse. Nevertheless the offences were committed when the offender was minding the complainant at her mother's request and that she was in her own home.
[6]
NW
Count 63, 64 and 65 were offences committed against NW. They were each allegations of aggravated indecent assault committed on NW when he was aged between 11 and 13 years. The maximum penalty is 7 years with a standard non-parole period of five years. The three offences are shown on DVD 14 under the title "Me(NW) and (LW3)" and they are described in exhibit 81. It is clear that each of these three offences was committed in the presence of NW's brother LW3. Count 63 relates to actions of the offender when he smacked NW's naked buttocks with a white coloured paddle bat until his buttocks were red. It is obvious that the offender was taking care to ensure that his conduct was properly recorded on the video camera which LW3 appears to be operating. Count 64 occurs after count 63 when the offender masturbates NW. Then count 65 occurs when the offender places his erect penis between the cheeks of NW's buttocks.
Objectively these offences are all very serious. The fact that they were committed in the presence of another child and the nature of the acts themselves lead to me find that they fall within the middle of the range of objective seriousness for offences of this kind.
[7]
LW2
The offender was found guilty of one offence in relation to LW2, that being an offence of aggravated indecent assault on a child under the age of 10. LW2 was between the ages of six and nine at the time. The offence was count 37 on the indictment. It carries a maximum penalty of 10 years but no standard non-parole period. This offence appears on DVD 8. That DVD primarily concerns offences involving LW2's sister LW1 but there is one scene where the offender assists LW2 to take his clothes off before he holds him in the air with his legs apart to allow direct filming of the young boy's penis and anus. The offence is then committed when the offender wrestles with LW2 eventually rubbing his penis against LW2's buttocks.
It is significant that at the time of this offence LW1 was also present and she indeed joins in the wrestling.
[8]
HW
Count 25 concerns an offence committed upon HW. It was an offence of committing an act of indecency with a child under 16 years of age. The offender filmed HW's genitals and anal area whilst she was asleep. During this filming the offender whispers a disgusting commentary describing what he is filming and what he would like to do. HW was of course completely defenceless at this time. The offender took advantage of this to obtain sexual gratification through looking at HW's genitalia and anus and also filmed what he could see for his later sexual gratification.
The commentary, which, out of deference to HW, I will not repeat in this public forum, is to be found on page one of the synopsis of DVD 4 in exhibit 81. It reveals, yet again, the true character of the offender as being a committed and depraved paedophile.
The maximum penalty for this offence is a mere two years imprisonment. Given the circumstances of the offence I am satisfied that it is in the worst category of offending of this type.
[9]
SD
The offender was convicted of one count (count 27) of committing an act of indecency against SD when she was under 10 years. The maximum penalty for this offence is seven years. It is significant that SD was very young at the time, the video recording suggesting that she was aged between three and five years of age. The child is filmed not wearing any underwear. The video recording contains the voice of the offender continually directing SD to open her legs so that he can film her genitals. Although not included in the synopsis of DVD 4, when I viewed this recording during the trial it is clear that SD initially says "no" when told what to do by the offender but she is persuaded by him to do what he wants. It is also important to note that at the same time SD was performing the actions that the offender wanted her to, there was present with her and the offender another younger female child who has not yet been identified who copies the actions of SD.
Two factors particularly important in demonstrating the seriousness of this offence are the age of SD and the presence of the other unidentified younger female. In assessing the criminality of this offence I take into account of course that the offender does not actually touch the victim's genitals.
[10]
TW
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[11]
JK or Unknown Victim
Count 28 concerns the actions of the offender involving a very young female. Initially the child was thought to be JK but there is some doubt as to whether she has been correctly identified. It matters not of course.
The offence is one of aggravated indecent assault on a child under the age of 10. The maximum penalty for this offence is 10 years imprisonment.
The child involved in this case is very young indeed, somewhere between two and four years of age. She, as with the vast majority of the offences that I have seen, does what the offender tells her to. He directs her to say the words "fuck me" repeatedly, and she does.
The offender then removes his penis from his shorts and commences to masturbate. He also instructs the child to masturbate his penis which she does. The particular conduct the subject of the offence then occurs. The offender rubs his penis against the vaginal area of the child whilst she remains clothed. It appears that, fortunately for the child, the offender was interrupted when the child's mother arrives.
A particularly important feature of this offence is the very young age of the child. Nor is this particular count an isolated instance of sexual misconduct. As I have described it took place in the context of other sexual misconduct involving the same child. The offender cannot therefore say that his misbehaviour towards this child was isolated. On the other hand, at no stage are the child's genitals exposed.
[12]
Use Child For Pornographic Purposes
The offender was convicted of five counts of using a child under the age of 14 years for pornographic purposes. The maximum penalty for each of these offences is seven years imprisonment. The offences all related to children who were the subject of other counts on the indictment relating to the actual sexual abuse of them by the offender.
Of course I have taken into account in determining the appropriate sentence for each of the actual sexual assault offences, that the offender was filming them for his later sexual gratification. I have to be therefore very careful not to double count that feature because it is an inherent aspect of the offences of using a child for pornographic purposes.
The most significant feature effecting the objective seriousness of these five offences concerns a concession by the Crown, which I will accept, that there is no evidence that the offender intended to allow anyone else to view the DVDs he made, or to use the internet to distribute them (this concession being made despite the offender saying to LW3 in one video recording "she is not going to pay a lot of dollars if you look like that"). In those circumstances I have decided that the offender will receive no extra punishment for these five offences beyond the punishment he will receive for having committed the various sexual assaults which he filmed.
[13]
Possess Child Pornography
The final count on the indictment concerns possession of child pornography. The vast bulk of the child pornography that the offender possessed was child pornography that he produced, showing him sexually abusing a large number of children in many and varied ways. Once more, the actual acts of the offender will be punished by significant sentences and I have to be careful not to doubly punish the offender when I come to consider the appropriate sentence for count 120.
The maximum penalty for this offence is five years imprisonment (I note that the maximum penalty has been increased of recent times but it is of course the maximum penalty applying at the time of the offence which I must look at).
The child pornography includes images and video recordings beyond those which the offender made of his own depraved sexual misconduct. Given the enormity of the offender's other crimes it is easy to overlook the seriousness of the possession of his collection of child pornography, a collection clearly used as part of his obsession with sexual activity involving children. Some of the images are disturbing, showing injuries to young children as well as penetrative sex between adults and children. Although, as I mentioned, there is a great deal of overlap between count 120 and other counts on the indictment, the areas where there is no overlap suggest that there is a need for extra punishment.
The manner in which child pornography material is organised and stored can be relevant to objective seriousness where it demonstrates a much higher level of personal interest in child pornography than is commonly the case. Other possessors of child pornography have demonstrated the sort of obsession demonstrated in the present case. For example in Colbourn v R [2009] TASSC 108 the offender had created an extensive catalogue of his child pornography files. The offender's obsession with his video collection of child pornography, primarily of course showing offences committed by him, demonstrates an intensity of personal interest in child pornography rarely seen.
[14]
Harm to the Victims
As might be imagined there is evidence that the offender's behaviour has caused enormous harm. I have already referred to the report of Dr Hayes which concerns LW3.
Victim impact statements were presented by HW and on behalf of SD. It is important that victims of offences are able to remind courts that their lives have been seriously affected by the wrong doing of others. At times in the sentencing process attention focuses on the offender rather than his offences but it is important to remember that the harm caused by an offence is a very important part in determining the appropriate punishment for that offence. For this reason I have carefully considered the contents of those victim impact statements in so far as they set out the results of the offender's crimes. They reveal harm of an entirely foreseeable nature.
In the case of other of the offender's victims, those who did not provide victim impact statements, I nevertheless find that it is almost inevitable that they too will have suffered because of what the offender did, and continue to suffer for some time. I make this finding even in the case of the offences concerning TW. Because she was a baby at the time she will, thankfully, have no memory of what the offender did to her. But it is almost inevitable that she will learn about it.
[15]
Criminal History
The offender has earlier served sentences of imprisonment for child sexual assault offences. In 1987 the offender indecently assaulted two young girls in a public park culminating in the offender masturbating in front of the children until he ejaculated. This of course confirms what is obvious in any case, that the offender is a committed paedophile who cares nothing for the welfare of the children he uses to obtain his sexual gratification.
Often the criminal history of an offender can be used to demonstrate a continuing attitude of disobedience towards the law but that factor is abundantly demonstrated in any case here simply by the multitude of offences for which the offender is to be sentenced by me, the length of time over which they were committed, and the number of victims against whom they were committed
[16]
Protective Custody
It used to be the law that a significant reduction on sentence was almost automatic where, as here, an offender was likely to have to serve his sentence on protection. However in more recent times it has been recognised that it is not invariably the case that those convicted of child sexual assault offences will serve their sentences on protection, and even if they do, that does not necessarily involve harsher conditions of custody than would other wise be the case.
However, given the nature of his offending, I consider that there is a significant risk that the offender will serve the entirety of his sentence on protection and, if he does so, there is a risk that that will involve harsher conditions of custody than apply to the general prison population. I have taken both of those risks into account in determining the appropriate sentences.
I understand that there is a proposal to change sentencing law so that service of a sentence in protection will no longer be a factor suggesting a reduction in sentence. That proposal is not the law which exists at the present time.
[17]
Representative Counts
It is clear that there were many more offences on the DVDs than those the subject of counts on the indictment. Despite that, the legitimate use of that circumstance is limited. I am entitled to take into account uncharged acts for the limited purpose of placing the offences which are on the indictment into context and to rebut any assertion that the offending was isolated. In the context of this case it is not being suggested, nor could it be, that the offender's misconduct was anything other than frequent. Accordingly the fact that there is evidence of uncharged acts before me will make no difference at all to any sentence to be imposed upon the offender.
[18]
No Remorse
Of course the offender has expressed no remorse at all and indeed continues to maintain his innocence. He is not to be punished for that but it is a significant matter when considering his prospects for rehabilitation to note that the offender denies any wrongdoing at all. Somewhat remarkably he even pretends that he did not commit the offences that appear on his criminal history, committed on children aged 11 and seven, when he denied to Doctor Allnutt "ever having sexual contact with any children under age 16".
[19]
Delay
Because the offender so effectively covered up his wrongdoing he now stands to be sentenced for some offences which occurred many years ago. However this is not a case where he has committed an offence and then spent the intervening period in anguish, afraid that the day would come when he would appear to be sentenced for his crimes. To the contrary the offender's brazen behaviour makes it clear that he believed he would never have to face this day. In those circumstances the delay between the commission of the offences and the charging of the offender is of no assistance to him at all.
110 There has also been some delay, although not of any significant magnitude, between the offender's arrest and his sentencing today. However that delay is relatively insignificant and almost all of it arose because of the magnitude of the task faced by investigators, which in turn flowed from the huge number of offences committed by the offender. A person who has committed an enormous number of crimes cannot expect to receive a benefit because of that fact, when the question of delay is considered.
[20]
Conduct of the Trial
One particular issue raised on sentence concerned the way in which the trial was conducted. The offender did not deny that all offences, apart from count one, could be seen on the various DVD recordings, with the issue for me to determine limited to the identity of the person seen doing those acts. This had a significant utilitarian benefit to the criminal justice system, obviating the need for the Crown to show me the entire contents of all the DVDs. Instead only excerpts were shown in court with the offender not challenging the accuracy of synopses of the DVDs prepared by the police.
Further, cross examination of LW1 on the count which was not based on a video recording (count 1) was limited to an enquiry concerning the frequency of abuse and the identity of the abuser. In other words, she was not cross examined to suggest that she was lying. Other decisions made by the offender concerning the conduct of his trial were of assistance, including admissions as to the identity of the children.
Despite this attitude the Crown case on sentence is that this utilitarian benefit should not result in any lower sentence. The Crown points to the strength of the Crown case in this regard.
I do not accept the Crown's submission. Just as it is an error for a judge to reduce the discount for a plea of guilty because of the strength of the Crown case, so it is similarly an error for a judge to refuse to properly take into account the utilitarian benefit which flows from the way in which an offender has conducted a trial because of the strength of the case against him.
If a person gets a discount of between 10% and 25% for pleading guilty, which obviates the need for a trial at all, then clearly the discount for assistance in the conduct of a trial must, necessarily, be modest.
[21]
Structure of the Sentence
Both the Crown and the offender suggested that I would partially accumulate sentences amongst groups, those groups relating to the identity of the victim, except in the case of LW3 and LW1 where it was agreed that there should be multiple groups depending on the age of the victim. Whilst I have grouped sentences according to the identity of the victim I have not found it necessary to go further and group them according to age. Once I have determined the appropriate sentence for each offence and then considered the starting dates for sentences relating to each of the victims in a way which reflects, to some small extent, the extra criminality involved with the extra offences, I was left with a sentence which in overall terms reflected the offender's overall criminality. To go further and divide the sentences for LW1 and LW3 into further groups would have made no difference at all to the overall sentence imposed upon the offender.
[22]
Pre-sentence Custody
It was agreed that because of pre-sentence custody, the first sentence to be served by the offender should commence on 26 September 2008.
[23]
The Length of the Overall Sentence
Of course in this case, as far as the overall sentence is concerned, what is more important than the individual sentences is the extent to which they are to be served concurrently or cumulatively. This case, more than most, has required close examination of the principle of totality. The rationale behind this principle is sometimes difficult to explain, especially to those victims of crime who find that the application of the principle means that an offender receives an effective sentence for crimes against that person which is much less than they objectively deserve. But it is a well-established principle of criminal law that when sentencing a person for multiple offences the overall sentence must be appropriate to his offending as a whole.
For this reason I was greatly assisted by the Crown's reference to cases where offenders have been sentenced for large numbers of child sexual assault offences. For example in R v Dunn [2004] NSWCCA 346 the offender pleaded guilty to 27 counts of various child sexual assault offences committed over the period 1985 - 1992. On appeal a total effective sentence of 20 years with a non-parole period of 18 years was imposed. However as opposed to the present case the offender pleaded guilty, there were many fewer offences, and they were committed some time ago. Indeed the Court of Criminal Appeal stated, at [162]:
the sentences that we believe are appropriate in the circumstances of this case are not a guide to what would now be appropriate for an offender who committed similar offences in more recent years…sentences have increased since and this will have to be reflected in sentences imposed upon more recent offenders.
In R v Bell [2002] NSWCCA 2 the offender pleaded guilty to some offences and was found guilty of others. The overall sentence imposed in that case was 14 years with a non-parole period of 10½ years, the Court of Criminal Appeal noting that the offender "had been very fortunate that the judge had imposed light sentences on so many of the charges". Once more however it is important to note that some of these offences involved pleas of guilty and most importantly they were what had been regarded as historical offences.
In Hitchen v R [2010] NSWCCA 77 the offender pleaded guilty to a number of offences concerning child pornography and child sexual assault. He received an overall sentence of 18 years with a non-parole period of 14 years. Once more it is important to note that those sentences were imposed after he pleaded guilty at the Local Court, there were significantly fewer offences than this offender faces, there was only one victim and the offender had no prior convictions. On the other hand one of the offender's offences was an offence of transmitting child pornography, a matter which does not arise in the present case.
A comparison of the facts regarding those three cases that I have referred to and the circumstances of this case reveal that the offender could have no complaint if an overall sentence much much longer than the sentences in those three cases were imposed upon him. Although he shares with Dolly Dunn the attribute of being a committed and enthusiastic paedophile his obsession and level of depravity were much worse.
The objective circumstances of what the offender did are relevant not only to the gravity of the misconduct itself but also because of what it says about the offender himself. He is not to be punished for having bizarre sexual thoughts or merely because he exhibits abnormal sexual behaviour. The core of his wrongdoing is that he has caused harm to children and indeed it is part of his nature that he obtains sexual gratification from causing such harm. The best illustration of that of course are the offences involving the very young child, TW. But it is obvious that for all of his offences he gave no thought to the welfare of any of the children he abused.
To put matters bluntly the criminal law doesn't care if the offender wants to dress up in suspenders and high heels and have himself spanked by an adult woman, but when that conduct involves children it must be recognised that the harm to those children is greater because of the bizarre nature of the behaviour.
Lest there be any doubt about the offender's sexual orientation, on one of the recordings the offender is shown having sex with a plastic blow up doll. But the doll is not a representation of an adult female, instead the blow up doll represents a child - even the offender's sex toys involve paedophilia.
And finally, in another scene on the same DVD, the offender speaks in passionate terms about the sort of sexual conduct he enjoys: "sucking little boy's dicks", "licking little girl's cunts". He says "I love to molest children … I have sucked little boy's dicks and I have licked little girl's cunts and they have all sucked my cock, this cock". The offender says pithily and accurately "I am a child molester". An appellation of which he appears to be quite proud.
The Crown said in its written submissions that:
"this offender by his actions has forfeited the right to return to society for a fixed period of years which is so lengthy that it will effectively be for the full extent of his natural life".
If this was intended to suggest that I should look at the offender's life expectancy and then impose a sentence such as to ensure that he dies in gaol, then I do not believe that that is the correct approach I should take. What I intend to do is to impose sentences which are appropriate, ignoring the offender's life expectancy. If, as it turns out, he will die in gaol then that is a consequence of his age and the need for him to be appropriately punished for what he has done.
Inevitably when an elderly offender commits a serious offence the question of whether the sentence imposed upon that person will have the effect that he or she will die in gaol is raised. I am not at all suggesting that the offender, at the age of 56, is elderly but reference should be made to the principle in this case for obvious reasons. It is to be noted that none of the offences for which the offender has been convicted carry a maximum penalty of life imprisonment, but that does not mean that the offender must necessarily expect to receive a sentence which will have the effect of him being released from custody before he dies. Reference is often made in this context to the decision of R v Holyoake (1995) 82 A Crim R 502 where Allan J said:
"it simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he may well spend the whole of his remaining life in custody".
It has been recognised that adherence to the principle of proportionality may on occasions have the effect of imposing a sentence which is equivalent to that of a life sentence, particularly where the offender is elderly.
[24]
The Ratio Between Head Sentence and Non-Parole Period
For obvious reasons there was no submission made that I would find special circumstances. For almost all sentences therefore the ratio between head sentence and non parole period approximates the statutory ratio. Of course if that was the case for all sentences then, because of accumulation, the overall non parole period would be much more than ¾ of the head sentence. Thus for those sentences to be served last there must be a variation such that the non parole period is less than ¾ of the head sentence.
However, in case it is thought that I have overlooked it, I note that the overall non parole period I will shortly announce is more than 75% of the head sentence. Were it not, then the offender would receive no extra non parole period for the most revolting of his offences concerning the baby, TW. The effective overall non parole period I have selected is the least which I consider properly reflects the offender's conduct. Should he eventually reach the stage where he has the desire to rehabilitate himself, and should he still be alive, then the period of eligibility for parole will be more than sufficient.
[25]
Sentences
It is now time to announce the sentences. As I mentioned earlier, it was the offender's former flat mate, Mr GH, who discovered the various DVD recordings and who took them to the police. When the offender found out what GH had done he said that GH had given him a "life sentence". As it turns out he was probably right.
Count 120
I set a non-parole period of 2 years to commence on 26 September 2008 with a head sentence of 3 years.
Count 25
I set a head sentence of 2 years to commence on 26 September 2009 with a non-parole period of 1½ years.
Count 28
I set a head sentence of 5 years to commence on 26 September 2010 with a non-parole period of 3 years 9 months.
Count 27
I set a head sentence of 4 years to commence on 26 September 2011 with a non-parole period of 3 years.
Counts 63, 64 and 65.
I set a non-parole period of 4 years to commence on 26 September 2012 with a head sentence of 6 years.
Count 37
I set a head sentence of 6 years to commence on 26 September 2013 with a non-parole period of 4½ years.
Count 115.
I set a non-parole period of 4 years to commence on 26 September 2008 with a head sentence of 6 years.
Counts 116 and 117.
I set head sentences of 4 years to commence on 26 September 2008 with non-parole periods of 3 years.
Count 118
I set a head sentence of 3 years to commence on 26 September 2008 with a non-parole period of 2 years.
Count 119
I set a non-parole period of 2 years to commence on 26 September 2008 with a head sentence of 3 years.
Count 1.
I set a non-parole period of 11 years to commence on 26 September 2014 with a head sentence of 15 years.
Count 26
I set a non-parole period of 2 years 6 months to commence 26 September 2014 with a head sentence of 3½ years.
Count 40.
I set a head sentence of 7 years to commence 26 September 2014 with a non-parole period of 5 years.
Counts 34, 35, 36, 38, 39, 41, 42 and 43
I set a head sentence of 16 years to commence 26 September 2014 with a non-parole period of 12 years.
Count 93
I set a head sentence of 8 years to commence 26 September 2014 with a non-parole period of 6 years.
Count 2
I set a non-parole period of 4 years to commence 26 September 2018 with a head sentence of 6 years.
Counts 3, 4, 20, 21, 22, 23, 24, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 66, 67, 68, 69, 70, 71,72, 73,74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 89, 90, 91, 92, 94, 95, 96, 97, 98, 99,100, 101, 103, 104, 105, 107, 108, 109, 110, 113 and 114.
I set a non-parole period of 7 years to commence 26 September 2018 with a head sentence of 10 years.
Counts 6 and 102,
I set a non-parole period of 4 years to commence 26 September 2018 with a head sentence of 6 years.
Count 10
I set a non-parole period of 6 years to commence 26 September 2018 with a head sentence of 8 years.
Counts 5, 7, 8, 9, 11, 12,13, 14, 15, 16, 17 and 18.
I set a non-parole period of 12 years to commence on 26 September 2018 with a head sentence of 16 years.
Count 86
I set a non-parole period of 9 years to commence 26 September 2018 with a head sentence of 12 years.
Counts 59, 88, 106, 111 and 112.
I set a non-parole period of 8 years to commence 26 September 2018 and a head sentence of 11 years.
Count 19.
I set a non-parole period of 14 years to commence 26 September 2018 and a head sentence of 18½ years.
Counts 29, 30, 31, 32 and 33.
I set a head sentence of 18 years to commence on 26 September 2022 with a non-parole period of 12 years.
Thus the overall sentence is one consisting of a non-parole period of 26 years with a head sentence of 32 years. The non-parole period will expire on 25 September 2034 on which day the offender is eligible to be released to parole.
[26]
Amendments
27 April 2020 - Pursuant to orders made on 27 July 2018 paragraphs [64] - [86] have been redacted for publication.
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: 27 April 2020