Whiteman v R

The facts of the offending

1. The applicant's modus operandi was to foster relationships with girls around 11 to 15 years of age whom he met through friends or community activities like rugby league and ballroom dancing. The relationships were largely pursued online, at least at first. The applicant would send the girls anodyne messages, generally about shared interests, and then he would steer the conversation in a sexual direction. Sometimes he requested that the girls send him photographs of themselves in their underwear. Sometimes they acceded to those requests.
2. On eleven occasions, involving six of his victims, this grooming behaviour was successfully engineered to achieve an in-person meeting with his victim during which sexual acts occurred. The applicant's activities came to the attention of police in 2019, when the friends of one of the girls with whom he was engaged in online conversation, reported what was occurring to their school principal.
3. The applicant was arrested for the first time on 11 December 2019. A search warrant was executed on the same date and a USB was seized. That USB was later analysed and child sexual abuse material was found on it, including of unknown children, as well as some of the victims of the other offences. This led to a further arrest on 4 March 2020. The applicant has remained in custody from that time.
4. The agreed facts of the offending are summarised in the remarks on sentence and other than the issue forming the basis of ground 1 of the appeal, are not subject to challenge. Because of the range and extent of the offending, the 22 separate victims and the lengthy period over which the applicant engaged in this offending, the facts of the offending are lengthy. I have added into this summary the maximum penalty and any standard non-parole period referable to the offending.
5. CHILD 1 - BORN 1991 Seq 16: Incite act of indecency w/person under 16 (Form 1 referable to seq 17) (s 61N(1) Crimes Act - 2 years) Sometime in 2004, Dale Whiteman met and befriended Child 1. She was between the age of 12 and 13 during the relevant period. He was aged between 15 and 16. Their families were friends. Both Whiteman and Child 1 regularly attended sport matches. Whiteman commenced sending messages via Facebook to Child 1. During the next few months, he made her feel comfortable with the conversation and due to their relationship she thought they were friends. Child 1 told police that within a month of the communications beginning he asked her about her underwear and asked her to send him photographs of her in her underwear. She responded by describing her underwear. Whiteman also asked her if she 'preferred to wear G-string or full underwear' and to take a photograph of herself wearing them. Seq 17: Aggravated indecent assault (s 61M(1) Crimes Act - 7 years) One night in 2005 Child 1 and Whiteman communicated via social media. She told him her parents were out. He drove to her house. They spoke out the front. He was inside his car while she leant on the driver's door. They were talking through an open window when he asked her to reach into the car and grab his penis. She said 'no.' As she started to retract her hand from the door he grabbed it and pulled it into the car towards his penis. She pulled her hand away. She told him her stepfather was approaching and he drove away. Seq 57: Use carriage service to harass (s16BA Schedule referrable to H72711282 seq 79) (s 474.17(1) Criminal Code - 3 yrs) From then on Whiteman messaged Child 1 over social media to the point she felt 'badgered'. She told police he would 'continue until I gave in and did what he wanted'. He played games with her; he would ask 'if you had a chance what would you do to me?' She told Whiteman what she would do. He responded that he would undress her and perform oral sex on her. He also asked her; to send him 'dirty messages,' to tell him what she was wearing, and for photographs of her in her underwear or naked. Sometime in 2006 she sent him two photographs: one of her wearing a bra and another of her wearing a G-string.
6. CHILD 2 - BORN 1991 In 2006, Whiteman, then aged between 17 years and 18 years met and befriended Child 2, aged between 14 years and 15 years during the relevant period. She was a friend of Child 1. Over the following months, he sent Child 2 a number of text messages which made her feel 'good,' 'special' and 'wanted.' She felt he was a good-looking older guy and believed he was 'interested in her'. Seq 19: Have sexual intercourse with child >=14 & >16 (penile/vaginal sexual intercourse) (s 66(3) Crimes Act - 10 yrs) Seq 20: Have sexual intercourse with child >=14 & >16 (fellatio) (Form 1 referable to seq 19) (s 66(3) Crimes Act - 10 years) The pair began sending each other text messages and arranged to meet up One night, between 1 January and October 2006 after 11.30pm, Child 2 snuck out of her home and met Whiteman who was waiting in his car. He drove her to a nearby beach. They walked down to the sand and lay on a blanket. Child 2 performed oral sex on him. The two then engaged in penile/vaginal sexual intercourse. Child 2 was 14 at this time. He continued to message Child 2 for a short period before ending all communication with her.
7. CHILD 3 - BORN 1993 In 2007, Whiteman (then 19 years) met and befriended Child 3 at a social activity where both participated. During the next few months they exchanged private messages over social media. He made her feel good about herself and excited that an older male was showing her a lot of attention. About a month after meeting they met after the social activity and went to a ark across the road and kissed. Seq 21: Commit act of indecency with person under 16 (Form 1 referable to seq 22) (s 61(N) Crimes Act - 2 yrs) In June 2007, about a month after Child 3's 14th birthday they arranged to meet up after messaging 'all night'. After her father had gone to bed she snuck out of her home and met Whiteman, who was waiting in his car nearby. They sat inside. He kissed her and asked her to perform oral sex on him. She did not agree to this. He asked her to touch his penis. She was hesitant but she did not want to lose his attention. She 'felt that it was something [she] needed and wanted to do.' She placed her hand on his erect penis and masturbated him until he ejaculated. She got out the vehicle a short time later and returned home. Seq 22: Have sexual intercourse with child >=14 & >16 (s 66(3) Crimes Act - 10 yrs) Within a week, he contacted Child 3 and the pair arranged to meet. She again waited for her father to go to bed. She then snuck out of the house and met him in his car. There he kissed her and asked her to perform oral sex on him. She did not want to but felt if she did not, she would lose his attention. She performed oral sex on him. As she 'had never done anything like this before' he moved her head and hands 'to do what he wanted.'
8. CHILD 16 - BORN 1994 Seq 58: Use carriage service to harass (s16BA Schedule referable to H72711282 seq 79) (s 474.17(1) Criminal Code - 3 yrs) In 2007, Whiteman (aged between the age of 18 and 19) met and befriended Child 16 (aged between 12 and 13). She met him through a friend who he dated at the time. She would also go to a social activity where Whiteman participated. During this time, he sent private messages through Facebook Messenger to Child 16. She told police he would start off with 'general conversation' but after a while would 'always' ask 'sexual questions'. In particular, whether she wore G-strings or the colour of her bra. He asked her to send him photographs of her wearing her swimmers. She told police 'if Dale ever asked me for something and I said 'no' he would nag me and try and get it from me any way .... Eventually Dale just stopped messaging me.'
9. CHILD 19 - BORN 1992 Seq 59: Use carriage service to offend (s16BA Schedule referable to H72711282 seq 89) (s474.17(1) Criminal Code - 3 yrs) In 2007, Whiteman (between 18 and 19) met and befriended Child 19 (aged between 14 and 15). She met him through their social activity. When she was 14 years old, he began to send numerous text messages to her about her underwear. He would ask questions such as, 'Do you feel sexy in your G-string' or 'Have you started wearing G-strings yet?' She assumed he was trying to be funny and did not think too much of it.
10. CHILD 4 - BORN 1994 Seq 60: Use carriage service to groom child under 16 (s 474.27(1) Criminal Code - 15 yrs) During 2008, Whiteman was friends with the brother of Child 4 (aged between 13 and 14). Her brother and Whiteman were involved in the same sport. Whiteman was aged between 19 and 20. During this period Child 4's parents took Whiteman in and allowed him to sleep at their house almost every weekend. He started a legal relationship with Child 4's older sister but it ended shortly after it commenced. He began to send text messages and emails to Child 4. During the text and email exchange, he struck up a general conversation, which progressed to topics of a 'sexual nature'. He told her he loved her and that he could 'see us having a family together'. He asked her if she had sex before or if she was interested in sex. He 'took it upon himself' to 'explain sex' to her and described what he 'wanted to do' to her. He asked if she wore G-string underwear. On one occasion Whiteman sent Child 4 pictures of his penis via a text message. During the time that they communicated, Child 4 became 'really comfortable' around him and felt 'special.' She understood the conversations needed to be a secret as she was fourteen and he was significantly older. She felt she could not be without him. She felt loved by him and 'could not survive without him. ' Seq 2: Have sexual intercourse with child >=14 & >16 (s 66(3) Crimes Act - 10 yrs) In 2008 Whiteman returned to the family home and sent a text message to Child 4, which asked her to come out to see him in the lounge room. She lay next to him on a mattress. He removed her pyjama bottoms and had penile/vaginal sexual intercourse with her. The next morning, she noticed she was bleeding from her vagina. She disclosed what had occurred the night before to school friends. The friends did not tell anyone. Seq 4: Have sexual intercourse with child >=14 & >16 (Form 1 referable to sequence 2) (s 66(3) Crimes Act - 10 yrs) On in 2008 Whiteman drove Child 4 to a beach where they had penile/vaginal intercourse. Seq 5: Have sexual intercourse with child >=14 & >16 (Form 1 referable to sequence 2) (s 66(3) Crimes Act - 10 yrs) During this same period Child 4 went to the cinemas with friends. Whiteman entered the theatre halfway through the movie and the pair moved to the rear seats. There she performed oral sex on him. He did not ejaculate. The 'relationship' lasted approximately 10 months and ended when Child 4 was still aged 14. She stated he made her feel loved and felt she could not be without him. She told police she was curious and wanted to have sex with him.
11. CHILD 5 - BORN 1992 Sometime between 2005 and 2006, Child 5 (aged 12 to 14) met Whiteman (aged 16 to18) through a social activity. He also knew her sister and brother through a local sport's club. He attended their home on a regular basis. Her parents had separated and her father no longer lived with the family. She saw him as father/older brother figure and the pair became good friends. She stated Whiteman was her 'best friend.' They would regularly go for drives in his car and talk. Seq 55: Assault with act of indecency (s 61L Crimes Act - 5 yrs) Sometime around the end of August 2009, Child 5 (aged 16) went for one of her regular drives with Whiteman (aged 21). He parked the car in the carpark at a beach, where they pair talked for a long time. He told her he wanted to 'play up on his girlfriend and cheat her.' She told him she did not want to. He leant forward and placed his hand on her breasts and ran his hand along them. She pushed his hand away. He then moved his hand to the top of her jeans and placed it underneath her underwear directly on her genitals. She said, 'No.' She pushed his hand away. She felt he had taken advantage of their friendship. He drove her home. A number of months later Child 5 told her mother about what occurred and the matter was reported to police. Child 5, however, declined to provide a statement at that time.
12. CHILD 10 - BORN 1999 Seq 62: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60) (s 474.27A(1) Criminal Code - 10 yrs) During 2011, Whiteman befriended Child 10's family. He was friends with her brother as they were involved in the same sport and would regularly visit her home. She was aged between 11 and 12. He was aged between 22 and 23. In 2011, Child 10 created a Facebook account and shortly after Whiteman began to send her private messages. Over the next few months, he made her feel comfortable with the conversation; she thought of him as a brother. In 2012, Whiteman (then aged between 23 and 24) turned the conversation to a sexual nature. He asked Child 10 (aged between 12 and 13) on numerous occasions if she 'had to wear a G-string' and if she enjoyed wearing that type of underwear. Sometime between 2012 and 2016, he asked her sexual questions and convinced her to participate in a video call with him. During this video call he convinced her to expose her bra. He captured these acts as screenshots and saved them on a hard drive which was later seized by police. As Child 10 got older, the conversations became more sexual. She began to ignore messages he sent.
13. CHILD 6 - BORN 1998 Seq 63: Use carriage service to groom child for unlawful sexual activity (s 474.27(1) Criminal Code - 15 yrs) During 2011, Whiteman (between 22 and 23) was Child 6's neighbour. She was aged between 12 and 13. Whiteman built a rapport with Child 6 and her family. He befriended her older brother. He would regularly play with the two children after school and attend their family home. During this period Child 6's family became friends with Whiteman and he would visit their house regularly. In 2011, Child 6 created a social media account. She was in Year 7 at this time. Shortly after this occurred, he sent her messages via Facebook Messenger. During the next few months, he made her feel comfortable with the conversation and due to their relationship, she thought of him as a brother; there was no concern over the contact. Whiteman later turned the conversation to a sexual nature. He asked her if she had a boyfriend and if she had kissed or 'did anything' with a boy. She said 'no' and he replied, 'Oh I could teach you.' He asked what her bra size was and what type of underwear she wore. He asked her to describe her underwear or to send him photographs. She 'felt weird' talking about her underwear so sent a number of photographs to him of her in various underwear or pictures of her (unworn) underwear. As she was 12 years old and he 22 she became concerned and confused and spoke to her mother. As a result Child 6 did not engage in any further contact with Whiteman.
14. CHILD 11 - BORN 1998 Seq 66: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60) (s 474.27A(1) Criminal Code - 10 yrs) Child 11 knew Whiteman from a young age. In 2011, Whiteman (between 22 and 23 years) began to send Child 11 (aged between 12 and 13) messages over Facebook Messenger. She told police she would 'hear from him nearly every week, it got to a point it was daily. He commented on photographs she posted on social media. The messages became 'more sexual.' He complimented Child 11 on her photographs and made comments about her breasts or body. She would ignore him. She felt he was a 'pest.' She told police that despite her lack of response, 'the messages continued and got more intense.' The content of the messages moved to Whiteman asking her to send him photographs of herself in a bikini 'or something similar.' He continued to message her until 2017, when she 'blocked' him and changed her name on social media. She felt the messages he sent were 'completely inappropriate, weird and creepy.'
15. CHILD 12 - BORN 1999 Seq 68: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 60) (s 474.27A(1) Criminal Code - 10 yrs) In 2011, Whiteman (aged between 22 and 23) met and befriended Child 12 (aged between 11 and 12). He met her through her friend (who is also a child victim). Child 12 would to go her friend's house after school and on weekends. He would play with the girls out the front of the house. During this period he began to send private messages to Child 12 over social media. Over the next few months, she felt she could trust him. He later turned the conversation to a sexual nature. In September 2011, he asked Child 12 an explicit question and then 'How's your love life'? Later in September 2011 Child 12 told Whiteman she was dancing in a beached themed school concert. He asked if she going to wear a bikini. She replied 'no'. In October 2011, Whiteman messaged her and stated her photo 'makes it look like u have big boobs' and later told her not to 'get a big ass'. Whiteman then asked her if she had 'shaved her legs yet.'
16. CHILD 13 - BORN 1999 Seq 70: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 63) (s 474.27A(1) Criminal Code - 10 yrs) In 2011, Whiteman (aged 22 to 23) met and befriended Child 13 (aged between 11 and 12). He met her through her friend (another child victim). He would play with the girls out the front of the friend's house. In 2011 when Child 13 was 12 years old, he sent private messages to her over Facebook Messenger. She told police he conversed 'normally' at first. She felt he was 'cool.' She 'trusted him' and 'thought he was a responsible adult.' He progressed from complementing her on her online photographs to asking Child 13 sexual questions, such as "got yourself a boyfriend yet pretty?' And how she kissed her boyfriend. Or if she would 'let a guy grab her boobs'. He asked what her 'boob size' was. And later wrote,' ... older guys always go for younger girls. And your (sic) pretty ... ' He later asked her (in a foreign language) 'Do you still wear a G-string?' In 2012 Child 13's mother found the messages. She contacted Whiteman and told him to stop messaging her daughter.
17. CHILD 14 - BORN 1996 Seq 72: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 63) (s 474.27A(1) Criminal Code - 10 yrs) In 2011, Whiteman (aged between 22 and 23) was still involved in a sport in the lllawarra. At this time Child 14 (aged between 14 and 15) joined the sport. During Child 14's first season Whiteman added her as a friend on Facebook and regularly sent her private messages which contained 'simple pleasantries'. Early in the 2012 season, Child 14 (then 15) needed a lift to training. Whiteman offered to take her and picked her up in his ute. From this point, he messaged Child 14 regularly and often drove her to training. Child 14 told police she became infatuated with Whiteman and enjoyed the attention given to her. He continued to message her over Facebook messenger and by text message which 'gradually' turned sexual. Whiteman would ask her about her underwear and if she was wearing a G-string.
18. CHILD 20 - BORN 1998 Seq 73: Use carriage service to offend (s16BA Schedule referable to seq 89) (s 474.17(1) Criminal Code - 3 yrs) In 2012 or 2013, Child 20 (aged between 14 and 15) commenced with the sport in the lllawarra. Through the sport she met Whiteman (aged between 24 and 25 years) who was a senior in the sport. In 2013 he began to message her over Facebook Messenger. Child 20 cannot remember what was said in those messages, however, recalled the conversation was general and about the sport. In November 2015, Whiteman (aged 27 years) sent messages to Child 20 (then aged 17). One read, 'Can totally see the outline of your G-string in your xxx photo lol. Oops ... I'm sure guys won't complain though, don't worry lol ... Can u notice it now lol.' They included comments like 'Love you ... ' and ' ... yes u r cute'. 'U looked very beautiful for your formal. Hope u had a great time xx' Child 20 felt the messages were inappropriate and did not respond.
19. CHILD 17 - BORN 1998 Seq 75: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 83) (s 474.27A(1) Criminal Code - 10 yrs) In 2012, Whiteman (aged between 23 and 24) remained involved in the same sport as the father of Child 17 (aged between 13 and 14). During this period Child 17's family became good friends with Whiteman and he would regularly visit their home. He referred to Child 17 as his 'little sister.' Child 17 created a Facebook account in 2011 and an lnstagram account in 2012. The complainant 'does not recall' when Whiteman began to message her on social media, however, believes it was 'around the time when her older sister told [Whiteman] she was not interested in him' sexually. Child 17 told police he sent messages to her which started as general conversation about family and sport. She never considered it to be wrong as he was a family friend who had stayed over at her house on a number of occasions. He slowly turned the conversation to a sexual nature and asked her questions such as whether or not she had been kissed.
20. CHILD 18 - BORN 2004 Seq 77: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 83) (s 474.27A(1) Criminal Code - 10 yrs) Child 18 is the younger sister of Child 11. In December 2015, Whiteman (aged 27) began to contact Child 18 (aged 14) over Facebook Messenger. At the time Child 18 had a 'profile picture' which showed her wearing a bikini. He asked Child 18 how old she was. She answered '14'. He wrote, 'Well I don't wanna be creepy ... but r u actually that big at 14 [referring to her breasts] ... When I was 14 girls were like cardboard lol.' During the same conversation he said, 'Push up bra does wonderful things ... ' and 'Your not into g-strings and shit yet r u ... bit young for that lol'. Child 18 replied 'ahahaha na'. Whiteman replied, 'na as in 'I'm not too young', or no I don't.' He was 'very persistent with constant text messages. If Child 18 did not reply, he would 'send another message and another message'. The questions made Child 18 feel uncomfortable and she attempted to minimise contact with him.
21. CHILD 7 - BORN 2003 Seq 79: Use carriage service to transmit indecent material child under 16 (s 474.27A(1) Criminal Code - 10 yrs) From 2010 until 2017, Child 7 was involved in a social activity with a girlfriend of Whiteman at the time. In 2017, Child 7 (aged between 13 and 14) received a message over Snapchat from Whiteman (then aged 29). He introduced himself as 'Dale Whiteman' and told Child 7 who he was. In late 2017, Whiteman informed Child 7 that he had a friend 'Emma', who was an Australian Model and could provide her clothes that agencies give her. Child 7 wanted the clothes and received "Emma's" mobile phone number from Whiteman. A couple of days later Child 7 received text messages from 'Emma' from mobile phone number ... 625. The text stated she was 'Dale's friend and was a model looking to 'get rid of some clothes'. Child 7 told 'the model' she would like the clothes, however, she never received them. Child 7 told Whiteman about this and Whiteman 'said something about them getting lost in the mail.' Over the next couple of weeks, Child 7 received messages from Whiteman and 'Emma' however, never at the same time. If Child 7 failed to reply to either 'person', she received messages stating 'Where were you?', 'Why didn't you reply to me? or 'Why are you ignoring me?' She began to feel 'a bit weirded out' when both would 'do the same thing.' Child 7 decided to 'block' Whiteman's mobile phone number. He then messaged her from a separate Snapchat account. Child 7 did not reply. He wrote to Child 7 on lnstagram and asked, 'Why did you block me?' She then blocked him on lnstagram. Despite this, Child 7 continued to communicate with 'Emma'. 'Emma' asked her what type of underwear she wore and if she wore G-strings. Child 7 told police 'a lot of the time I could not be bothered explaining it so I would send a photograph of underwear or a photo of me in a bikini. Upon receiving a photograph of Child 7 in a bikini, 'Emma' responded that she 'could be a model'. Child 7 later began to feel weird about 'Emma' asking her about her underwear and felt harassed. She blocked the phone number and deleted all of the messages.
22. CHILD 8 - BORN 2003 Seq 83: Use carriage service to groom child under 16 (s 474.27(1) Criminal Code - 15 yrs) From 2014 until 2018, Whiteman attended numerous functions with his then girlfriend. Child 8 was present at a number of these functions. She was a family friend of the girlfriend. Whiteman built a rapport with Child 8 over this period. In August 2018, Whiteman (then aged 30) began to contact Child 8 (then aged 14) over lnstagram. Child 8 was going through a difficult period in her life. Child 8 felt alone and described this time in her life as a 'pretty low spot.' She enjoyed her interactions with him. They made her feel happy and that 'he was there for me'. Child 8 felt 'special' and distracted from what was going on around her in life. He began to ask her about her level of sexual experience and if she had any G-string underwear. She answered that she did. He told her that he could fulfil her needs and make her feel good. In 2018, Child 8 turned 15 and had a birthday party. She posted a photo on social media of her with a birthday cake with the number '15' on top. Whiteman sent her a private message on lnstagram where he wished her a happy birthday and words similar to 'Have a good night hope you get a root, mine would be better.' He began to request Child 8 send him photographs of her in a bikini and G­string underwear. At first, she was hesitant and did not want to, however, he 'kept on bugging' her about it and 'would not leave it alone until' she 'finally gave in and sent him some pictures.' Over the following months, she sent him photos of her wearing a bikini or G-string. The images Child 8 sent were stored on the storage device seized from Whiteman on the 11 December 2019 in a folder with her name on it (part of seq 6). Over lnstagram, he also sent Child 8 photographs of his penis and videos of himself masturbating to the point of ejaculation. She felt uncomfortable and did not want to look at them. The images/videos were time limited and would disappear after they had been opened. Seq 85: Use carriage service to engage in sexual activity with child (s 474.25A(1) Criminal Code - 15 yrs) On one occasion, Child 8 'facetimed' (made a video call over Facebook Messenger) to Whiteman. He masturbated, however she did not pay attention and messaged her friends. He ended the conversation. Seq 80: Aggravated indecent assault (s 61M(2) Crimes Act - 10 yrs with SNPP of 8 yrs) In early November 2018, Whiteman asked Child 8 (then 15) to meet him in person. At first, she declined, however he stated he was suicidal and feeling depressed. He stated he was sad about the end of his relationship with his girlfriend and that a friend had committed suicide. Thinking they would only talk, Child 8 agreed to meet at a train station. At the train station Child 8 got into Whiteman's car and was driven to his unit. Inside the unit, he kissed her and touched her breasts. He grabbed her around her legs and carried her over his shoulders into his bedroom and put her down on the mattress. Whiteman undressed himself. She undressed herself and he lay next to her, touched her breasts, kissed and rubbed her legs. She told him she needed to go home and he took her back to the train station. He messaged her and asked to meet up again. He told her she made him feel so much better. Seq 13: Have sexual intercourse with child >=14 & >16 (cunnilingus) (Form 1 referable to seq 81) (s 66(3) Crimes Act - 10 yrs) Seq 50: Have sexual intercourse with child >=14 & >16 (digital penetration) (Form 1 referable to seq 81) (s 66(3) Crimes Act - 10 yrs) Seq 81: Have sexual intercourse with child >=14 &>16 (penile/vaginal sexual intercourse) (s 66(3) Crimes Act - 10 yrs) In mid-November 2018, Whiteman asked Child 8 to meet him as he was feeling depressed. She caught the train to a train station, got into his car and was driven to his unit. In the unit Whiteman walked her to the bathroom where he undressed her and placed her in the shower. He performed oral sex on her. As this occurred he inserted three fingers inside her vagina and moved them in and out. After the shower he led her to his bedroom. He placed a condom on his penis and had penile/vaginal intercourse with her. Afterwards, she noticed that she was bleeding from her vagina. He drove her back to the train station. On the drive, her told her that she could not tell anyone about having sex with him. He later messaged her and told her the sex 'made him feel good' and asked when they could do it again. She declined as she was concerned her mother or his girlfriend would find out about what had occurred. Seq 15: Have sexual intercourse with child >=14 & >16 (cunnilingus) (Form 1 referable to seq 82) (s 66(3) Crimes Act - 10 yrs) Seq 51: Have sexual intercourse with child >=14 & >16 (digital penetration) (Form 1 referable to seq 82) (s 66(3) Crimes Act - 10 yrs) Seq 82: Have sexual intercourse with child >=14 & >16 (s 66(3) Crimes Act - 10 yrs) Whiteman continued to message Child 8 over social media and they arranged to meet again. He wrote and told her what he wanted to do to her. Child 8 began to have a hard time at school and started to skip classes. She messaged him about it and he suggested they meet up 'because he could make me feel better'. In December 2018, Whiteman arranged to pick her up from a train station. They met and he drove her to his unit. There he told her to close her eyes and put her hands behind her back as it would 'make her feel better'. He led Child 8 to his bed by the hand. He removed her clothing and his. He performed oral sex on her and inserted three fingers into her vagina which he moved back and forth. He placed a condom on his penis before having penile/vaginal intercourse with her. Afterwards the pair got dressed and he drove her back to a train station where she caught the train home. Child 8 began to question his motives and 'blocked' him on all social media platforms. She ceased all contact with him despite his efforts to contact her. In early 2019, Child 8 contacted Whiteman over Facebook Messenger and said, 'You knew I was fifteen why did you take advantage of me'. He replied that it was a low point in his life. She again 'blocked' him on Facebook Messenger.
23. CHILD 21 - BORN 2003 Seq 87: Use carriage service to transmit indecent material child under 16 (s16BA Schedule referable to seq 3) (s 474.27A(1) Criminal Code - 10 yrs) In 2018, Whiteman was 29 or 30 and a senior in his sport. In this year Child 21 (aged 14 or 15) joined the sport as a junior. Through the sport Child 21 met Whiteman. He was responsible for training and assessing her and attended the complainant's games to guide her. She looked up to him for guidance and support. He began to message Child 21 over Facebook Messenger. At first, the messages were about the sport, however, he soon escalated the volume of messages and would message her daily asking how her day was. Child 21 tolerated the contact as she believed he was her 'sport boss' and did not want to be rude. He would then ask her questions such as, 'wearing a G-string?' He would also ask the complainant for photographs of her G-strings. When she asked 'why' he said, 'I just want to know the brand.' She attempted to minimise contact with him, however, she felt obligated to answer at times due to his position with the sport.
24. CHILD 9 - BORN 2005 Seq 89: Use carriage service to transmit indecent material child under 16 (s 474.27A(1) Criminal Code - 10 yrs) From 2014 until 2018, Whiteman attended numerous functions with his girlfriend. Also present at a number of these functions was Child 9, a family friend of the girlfriend. He built a rapport with Child 9 over this period. In 2018, Whiteman (then aged 29 or 30) contacted Child 9 (aged 12 or 13) over Snapchat. He told Child 9's mother that his boss' daughter, 'Hailey' was an Australian model and could provide Child 9 with clothes. Child 9's mother agreed to receive clothing from 'Hailey' to give to Child 9. He provided Child 9's mother with 'Hailey's' phone number. This number was registered to Whiteman. In February 2019, Child 9 received text messages from 'Hailey'. On one 'Hayley' asked Child 9 what her bra size was, if she wore G-string underwear and if she would wear a G-string the next day. In another message 'Hailey' asked Child 9 if she had sex with a boyfriend and how she groomed her pubic hair. Between February and August 2019, 'Hailey' regularly texted Child 9. At this point Child 9 believed 'Hailey' was a teenage girl. About the time these messages were sent, Child 9 had 'blocked' Whiteman from contacting her on any social media. 'Hailey' continued conversations with Child 9 and asked her a number of sexual questions. 'Hailey' posted Child 9 six pairs of G-string underwear and other clothing for her to wear. Once Child 9 received the clothing, 'Hailey' asked for photographs of Child 9 wearing the clothing and only the underwear. She sent Hailey/Whiteman nine photographs of her wearing a G-string. Child 9 told police she did not enjoy talking to 'Hailey' as she felt the requests for photographs were 'weird'. Whiteman stored these images on a portable hard drive in a folder labelled 'Child 9' which was later seized by police (seq 6).
25. CHILD 22 - BORN 2003 Seq 91: Use carriage service to transmit indecent material to child under 16 (s16BA Schedule referable to seq 3) (s 474.27A(1) Criminal Code - 10 yrs) In 2018, Whiteman (then aged 30) met Child 22 though their sport where he was a senior and she was a junior. Shortly after Child 22 commenced in the sport he began to send her private messages over social media. Over the following months, he made her feel comfortable with conversations about the sport. In May 2019, Whiteman asked Child 22 questions of a sexual nature over Messenger. He asked her questions about her boyfriends and whether she had kissed boys. He also told the her 'she should move closer so we can hang out more' and told her he would 'miss' her when she was away. He later sent a message to the complainant which said, 'I love you . The complainant thought he was her friend and trusted him. The questions made her feel uncomfortable and she questioned why a male of his age would ask her about such things.
26. CHILD 10 - BORN 2006 Seq 3 - Use carriage service to groom child under 16 (s 474.27A(1) Criminal Code - 15 yrs) Whiteman and Child 10 (then 13 years old) have known each other since 2011, through Child 10's father who was involved in the same sport as Whiteman. Child 10 would attend matches on occasions. In late 2018, Child 10 became estranged from her father. Sometime in the middle of 2019, Child 10 created an lnstagram account. Whiteman appeared as 'people you might know'. Child 10 recognised him and requested to 'follow' him, which he accepted. She intended to ask him about her father. They chatted on a private message thread. She asked him questions about her father. In the coming weeks and months, Whiteman slowly turned the topic of conversation to a sexual nature. He asked Child 10 for photos of her wearing a wet white t-shirt. She replied that she did not own one. He then asked for photographs of her wearing only a bra several times. She succumbed to the constant requests and sent him photographs of her in a bra on three separate occasions. During this period, she constantly reminded him that she was thirteen years old and that he was thirty-one. She asked why he wanted these images and explained her discomfort with the requests. He played down these concerns. After he received photographs of her in her bra he told her he wanted to touch her breasts. He encouraged her to touch her breast and describe how it felt. He described to Child 10 the sexual acts he wished to engage in with her. He requested she practice oral sex. He sent her an undertaking that described the sexual acts he wanted her to agree to: "I, Child 10, fully consent to allowing Dale Whiteman to ... I will also wear a g-string if requested and supplied." He and Child 10 planned to meet. Several meetings were arranged, however, she insisted on a friend coming with her. Once this was known, he cancelled the plans.

Facts relating to the arrest and charging for the commonwealth offending

1. A number of Child 10's school friends became aware of these conversations and notified their Principal, who then contacted police. Police attended the school and obtained evidence of the conversation between the applicant and Child 10.
2. On 11 December 2019, police executed a search warrant at the applicant's residence. There, police cautioned him and placed him under arrest. Police seized his mobile phone which also contained evidence of the messages with Child 10 and three images of her wearing a bra. Police also seized a USB storage device which was later analysed. He was taken to Wollongong Police Station where he agreed to participate in an electronically recorded interview, where he made both admissions and exculpatory comments. He was charged with offences relating to Child 10 and later granted bail.
3. On 26 February 2020, police examined items seized from the search warrant executed on the 11 December 2019, including a USB storage device inserted into the applicant's laptop. It had a folder labelled 'Work Pics', inside this folder there were seventy-five (75) other folders. One folder labelled, 'Randoms' contained a number of images of naked juveniles. 11 images were deemed to be Child Abuse Material. Three images were identified as Category One on the Interpol Baseline. Eight images were identified as Category Two on the Interpol Baseline. All eleven images were of unidentified children.
4. Seventy-one (71) folders were labelled with individual female names representing a different female and each folder contained different images. A majority of the folders contained screen shots from social media accounts of the female labelled on the folder. However, a vast number of these folders additionally contained screen shots of conversation threads between the applicant and females which were of a sexual nature, inclusive with some images of a sexual nature such as images in underwear, naked photographs and sexual videos. One folder contained images of Child 4. A second related to the original charge from 11 December 2019 about Child 10.
5. On 4 March 2020, the applicant was again arrested and taken to Wollongong Police Station. He agreed to participate in an electronically recorded interview where he made admissions relating to possession of the images found but denied having 'sexual relations' with any girls who were 14 or 15 and denied having 'sex' with any of the girls in the folders who were under the age of 16. He did say he had a 'fetish' for 'G-String bikini' and 'swimwear'. The applicant was charged and has been held on remand solely referable to these matters since that date.

The remarks on sentence

1. Having outlined the offending, his Honour proceeded to deal comprehensively with objective seriousness, commencing with a discussion of general principles, and then discussing separately the criteria relevant to the evaluation of the seriousness of both the physical offences and the sexual communications offences. He noted the criteria for the physical offences to be: the act or acts done, the character of the sexual assaults by reference to the elements of the particular offence charged, the degree and nature of physical contact, the nature and extent of any penetration of the child, the degree of physical harm done to the child (psychological harm of some sort being presumed), the time at which the acts occurred, where and how the offence came about, the other acts associated with the crime, the age difference between the perpetrator and the child, any relationship between the perpetrator and the child and the age of the child relative to the range encompassed by the offence.
2. His Honour then proceeded to deal with the Commonwealth offences, first setting out general principles and the recognised harm done, and the authorities that stress the need for general deterrence to be given primacy in sentencing for this type of offending.
3. His Honour referred to eight factors relevant to the assessment of the objective seriousness: first, the nature of the conduct, including the topics raised and the methods used to gain the child's trust and any abuse of that trust, second, the extent of any manipulation of the child, third the nature of demands made and the extent the child became compliant with requests, fourth, the number of contacts - from the occasional contact to a bombardment of indecent suggestions, fifth, whether graphic intimate or sexual images were sent to the child, sixth, whether images were solicited from the child, seventh, whether images solicited were sent by the child and eighth, whether the communications were accompanied by acts such as gifts or money.
4. Under the heading "Assessment of objective seriousness - Specific offences" his Honour explained how he applied the principles to each of the individual matters for sentence. He highlighted that in relation to each child, the applicant had acted with the motive of his own sexual gratification and exploited the youth and inexperience of the children, and, in many cases, the significant age difference between himself and the victim.
5. His Honour dealt with each child and the sequences of offending relating to them, identifying relevantly and appropriately, the specific acts that comprised the offence, providing a succinct reference to the particular aspects of those acts that underpinned their objective seriousness.
6. His Honour noted that it was accepted that for each matter for sentence, a custodial sentence must be imposed.
7. Rather than using an uninformative analysis such as "serious" or "very serious" or "not so serious", his Honour went to the trouble of identifying the specific acts done and the way they reflect the criteria identified so that their seriousness was illustrated with clarity: Child 1 - seq 17 This offence occurred when Whiteman was himself a child. But there was a 3 year age difference and he was old enough to drive. The complainant was at all times outside the car. His assault involved grabbing the child's hand after she had said "no." The indecent aspect of the assault was pulling the child's hand toward his penis. Child 2 - seq 19 Again his act of penile vaginal intercourse offence occurred when Whiteman was himself a child. Again, there was a 3 year age difference this is illustrative of the fact a child's youth and vulnerability were exploited. Child 3 - seq 22 Despite Child 3's earlier refusal to engage in sexual intercourse Whiteman was able to overcome that initial reluctance and persuade the child to perform oral intercourse on him. He compounded his crime by physically manipulating her body to do what he wanted. Child 4 - seq 60 Whiteman exploited his friendship with Child 4's family to gradually progress communications via text and email from the mundane to the sexual, including sending an explicit picture. She was targeted. Her respect for him was abused. His objective was to make her accept that sex between them was appropriate, despite her youth (14) and their 6 year age difference. Child 4 - seq 2 And, his objective was successful. As a result of his grooming activity Child 4 felt loved and that they were in a genuine relationship. Whiteman encouraged and exploited those feelings and persuaded her to come to him in the lounge room of her home where he had penile vaginal intercourse with her. Child 5 - seq 55 Whiteman used a family friendship to ingratiate himself with Child 5 (aged 16). Having obtained her trust he took her to a relatively isolated place. Taking advantage of what she saw as his friendship with her he placed his hands on her breasts and directly on genitals. Child 10 - seq 62 Whiteman again used a family friendship to ingratiate himself with Child 10, then aged 12. He initiated the Facebook communications. He made her feel comfortable with him before turning the conversation to sexual matters. There were many communications over years. He asked that she expose herself to him wearing underwear. She was aged between 12 and 15 years old at the time. When she complied he compounded this indignity by taking 'screenshots" which he saved and given his later admissions used for his own prurient purposes: that is an excessive interest in sexual matters, especially the sexual activity of others. Child 6 - seq 63 Child 6 lived near Whiteman. His actions in befriending the child and her family and in his communications when aged 12 or 13 she set up a Facebook account were planned and calculated. They were not innocent; as he soon turned the conversations to sexual matters and induced here to send images of herself in her underwear. The episode was exploitative and left a very young girl concerned and confused. Child 7 - seq 79 Whiteman then aged 29, initiated communications with Child 7, then aged 13 or 14. He concocted an elaborate charade with only one purpose; to induce the child to reveal intimate details about herself for his own prurient purposes. He disguised his true identity and continued to do so despite her 'blocking' communications with him. His actions were deceptive, exploitive and invasive of a child's privacy. Child 8 - seq 83 Whiteman, then 30, initiated contact with Child 8, then 14. He was well aware of her age. He exploited the fact she was 'in a low spot.' He did so with no regard to her or her feelings. He offered a false hope to her and exploited her apparent vulnerability. His persistent requests broke her resistance. She sent him images of herself in swimwear or underwear. He exposed her to his own sexual acts; exposure she was too young and ill-equipped to deal with. Child 8 - seq 85 This offence is another example of a 30 year old man exposing a child to his engaging in sexual conduct both for his own sexual gratification but also to accustom the child to sexual activity. Child 8, sensibly, chose not to pay attention to what Whiteman was doing. She did not herself 'engage' in any act but what was done was more than distasteful it was an act of self-gratification and operated in part to accustom the child to his sexual activity. Although notionally the most serious carriage service offence it was however far less serious than many of the acts caught by the section or for punishment today. Child 8 - seq 80 Having accustomed the child to doing as he wanted and having exposed himself to her, Whiteman arranged a meeting at his home so that he could engage in and further accustom her to sexual activity. His actions in touching her body when both were naked served that aim and were for his sexual gratification. Child 8 - seq 81 This crime (and seq 82 and the related Form 1 matters) represent the culmination of a long process designed solely to gratify the offender's sexual interest in Child 8. He engaged in penile vaginal sex with a child half his age. A condom was used, reducing the risk of disease and pregnancy. Other than the act itself the level of manipulation involved must be taken into account as is the level of concern and confusion his actions would have had on the child. But I must do so with care as that factor was also relevant to each other offence related to Child 8 and should not be double counted. Child 8 - seq 82 This crime involved a further act of penile vaginal intercourse in circumstances similar to seq 81. Child 8's communication with Whiteman before 'blocking' him speaks volumes - "You knew I was 15 why did you take advantage of me?". Child 9 - seq 89 This is another example of Whiteman using a casual acquaintance to initiate contact with a 12 or 13 year old child and exploit her innocence and naivety. He contrived a story and invented a persona to play on the child's desire for interaction with an adult and dreams of being a model, in order to engage her in sexualised chat and induce her to send images of herself wearing underwear. Again, he stored these images for his own prurient purposes a further gross breach of the child's privacy. Child 10 - seq 3 Whiteman was aware of Child 10's estrangement from her father and exploited that fact to gain and breach her trust. He persisted in his demands of her despite her obvious discomfort. He began the process of accustoming her to possibility of physical contact and the acts he wanted her to perform on him; a process thwarted only by the child's caution. Again, his actions were exploitative and undertaken without any regard for his victim or her age or vulnerability; to the contrary, those facts were exploited for his own sexual gratification. Possess Child Abuse Material - seq 6 Whiteman's devices contained Child Abuse Material. A very small number of images fell into the more serious Interpol Base line category. I was not asked to view the images and the Interpol Baseline categorisation does not allow for any proper assessment of the images. These images alone could not attract a full time custodial sentence. Here however most images and sexualised communication threads were of known or unknown child victims of offences committed by him. They did not fall into the worst or depraved category often found - that is images of sexual intercourse with and/or torture of very young children. They were collated for Whiteman's own purposes and not disseminated. They were unlikely to be viewed by others. Whiteman was however responsible for their creation. And, they were illustrative of the deception employed by him to obtain them. They were organised into 71 labelled folders relating to the number of children involved. Many related to his self-described "fetish" involving young girls in swim suits or underwear. They were collected to be viewed for prurient purposes. Each involved a real child and the exploitation of that child would have been compounded each time the image was viewed. The harm done to children who may later find out images of them have been used in such a way cannot be underestimated.
8. His Honour then explained the role of the Form 1 and Schedule offences which needed to be taken into account in respect of offending when determining the appropriate penalty for the offence to which they relate and that on occasion they would not increase a sentence to any discernible extent because the facts in relation to them have already been taken into account in aggravation of the penalty for the matters to which they relate, but on other occasions, the increase can be substantial.
9. His Honour referred to the victim impact statements that had been received, noting that they were in keeping with his expectations based on recent psychological research and the common experience of the Courts. Many of the victims told police how initially they welcomed the approaches by an older man, but that they found it uncomfortable and confusing when the approaches turned into sexual demands and they felt vulnerable and exploited and felt anxiety, shame and negative self-image.
10. There was then reference to the need for particular care when sentencing for multiple offences where they involve discrete offending against multiple victims or multiple offences with overlapping elements of criminality and the need to bear in mind totality. In this context his Honour referred to relevant principles, including the need to avoid imposing a crushing sentence, the need for the sentencing to be transparent, the need for the sentence to be fair, just and proportionate for the whole offending, the impact of COVID-19 difficulties in custody and the applicant's youth, noting that some of the offending occurred before he was an adult.
11. His Honour dealt with the applicant's subjective case noting that the applicant was born in 1988 and had a good and stable upbringing, with supportive parents. He had a sporting background and stable employment as a labourer since he was 20.
12. He had been in three long-term relationships and had a number of casual sexual encounters with same aged women. He reported no issues with drugs or alcohol and they played no part in his offending. He reported a history consistent with the onset of depressive symptoms from mid-adolescence, with fleeting suicidal ideation. He has been seeing a psychologist in custody and has been prescribed an anti-depressant for anxiety and sleeping difficulties.
13. Until his arrest, the applicant had no similar criminal convictions, a matter that the sentencing judge noted must be taken into account in his favour and the applicant's apparent good character did not enable this offending but, as is obvious, he has not been of good character since he first began this offending as a teenager.
14. His Honour accepted that there has been "some remorse" displayed, referring to the acceptance of responsibility by the guilty pleas but concluded that "… the applicant's evidence was overall unconvincing. His offending was age specific. It was planned and calculated. As was his evidence to me".
15. Against that comprehensively articulated background, his Honour set out the following indicative sentences for the Commonwealth offences: (1) Sequence 60 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 62, 66, 68) a sentence of 3 year 3 months. (2) Sequence 63 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 70,72) a sentence of 3 years 3 months. (3) Sequence 79 Use carriage service to transmit indecent material -Taking into account the matters on the s.16BA schedule (Seq 57, 58) a sentence of 3 years. (4) Sequence 83 Use carriage service to groom - Taking into account the matters on the s.16BA schedule (Seq 75, 77) a sentence of 3 years. (5) Sequence 85 Use carriage service to engage sexual activity - a sentence of 2 years. (6) Sequence 89 Use carriage service to transmit indecent material - Taking into account the matters on the s.16BA schedule (Seq 59, 73) a sentence of 3 years 9 months.
16. His Honour set out the following indicative sentences for the state offences: (1) Sequence 17 Aggravated indecent assault - Taking into account the matter on the Form 1 (Seq 16) a sentence of 9 months. (2) Sequence 19 Sexual intercourse child 14-16 - Taking into account the matter on the Form 1 (Seq 20) a sentence of 2 years 3 months. (3) Sequence 22 Sexual intercourse child 14-16 - Taking into account the matter on the Form 1 (Seq 21) a sentence of 2 years 7 months. (4) Sequence 2 Sexual intercourse child 14-16 - Taking into account the matter on the Form 1 (Seq 4 & 5) a sentence of 3 years. (5) Sequence 55 Assault with act of indecency - a sentence of 1 year 6 months. (6) Sequence 80 Aggravated Indecent assault - a sentence of 2 years 7 months with a non-parole period of 1 year 10 months. (7) Sequence 81 Sexual intercourse Child 14-16 - Taking into account the matter on the Form 1 (Seq 13 & 50) a sentence of 3 years 9 months. (8) Sequence 82 Sexual intercourse Child 14-16 - Taking into account the matte on the Form 1 (Seq 15 & 51) a sentence of 3 years 6 months. (9) Sequence 6 Possess Child abuse material - a sentence of 2 years 3 months.
17. His Honour arrived at aggregate sentences of 11 years with a non-parole period of 7 years for the Commonwealth offending and 10 years with a non-parole period of 6 years for the State offending, imposing a total effective aggregate sentence for all of the offending of 16 years with a non-parole period of 12 years, the sentence to commence from the time the applicant was taken into custody on 4 March 2020.

This appeal and resentence

1. Given that the error identified in ground 1 is conceded, and is in the nature of House error, it remains for this Court to resentence the applicant.
2. The applicant's plea of guilty to the offending was entered at an early stage and he is entitled to a 25% discount.
3. Other than the error identified in ground 1 of the appeal, there was nothing identified in the applicant's written or oral submissions to suggest that there was any error of fact in his Honour's findings or that his Honour was not entitled to draw the conclusions he did having assessed the applicant give evidence.
4. Counsel for the applicant Ms Kluss submitted that Ms North's report provided an underlying explanation for the offending in identifying depression and anxiety. Ms Kluss submitted that there was no violence in the offending, the applicant has no drug or alcohol issues and he has a supportive and stable background. He has expressed remorse and is prepared to engage in offence-specific treatment. There were muted submissions suggesting his Honour's reasoning as to why he thought the applicant's expressions of remorse were questionable was not entirely clear, but it was acknowledged that it is up to this Court to form its own view on resentence. Ms Kluss submitted that there are positive factors, including the guilty pleas, that "all boded for a lesser overall sentence and a departure from the statutory ratio in the overall effective sentence".
5. Ms Kluss submitted more generally that the majority of the offences involved no physical contact, no complaint was made about them by the victims, the carriage service offending involved "relatively low scale" images that were voluntarily provided, and that all physical contact was "consensual".
6. The Crown submitted that the carriage service offences were serious matters, demonstrated by the serious penalties assigned to them. Attention was drawn to the victim impact statements in respect of those offences and the effect of the applicant's abuse of trust and associated manipulations upon those victims.
7. The Crown submitted that the overall criminality was high. There were twenty-two victims over fifteen years with only seven of the offences being committed when the applicant was a juvenile. The offences were premeditated, predatory, manipulative and persistent in the face of resistance or reluctance of the victims. The offences were clearly associated with a diagnosed deviant sexual interest. The applicant demonstrated in his evidence an inability to acknowledge that his offending was age-specific, and this is problematic in terms of both his insight and his probity, given what he had told Dr North shortly before he gave evidence about what he recognised about his own actions - "living a double life" and "knowing it was wrong".
8. The Crown submitted that there was little in the applicant's subjective case that was capable of mitigating the sentences to be imposed. Whilst he had no significant criminal history, the offences were committed over a protracted period of time, and he was assessed by Ms North as having an above average risk of re-offending. The sentences imposed must reflect a significant element of general deterrence: R v Gavel [2014] NSWCCA 46, and this is particularly so for the carriage service offences having regard to the difficulty in detecting this type of offence.
9. I am not persuaded by the submissions made on behalf of the applicant.
10. First, describing the physical contact offences as "consensual" is not accurate. In sequence 17, the applicant grabbed the victim's hand and placed it on his penis despite her saying "no", and in sequence 55, the applicant put his hand into the victim's underwear despite her saying "no".
11. Secondly, this submission underplays the scheming and lies engaged in by the applicant to secure compliance. Sequences 60, 2, 4 and 5 involved manipulation of a social situation to make the victim feel special with the attentions of an older male, and so smoothing the way for access to her for sexual intercourse on three occasions, including on one occasion, in her own home where he was present as a guest of the family. When, in sequence 80 the applicant, (aged 30), asked to meet Child 8, she initially declined but he told her that he was "feeling suicidal and depressed", had recently ended a relationship with his girlfriend and had a friend who had recently suicided and so Child 8 agreed to meet him to "talk". That meeting led to sexual assault, and a few weeks later, sexual intercourse. In the carriage service offending in respect of two of his victims, the applicant created fake female identities, "Emma" and "Hailey", who were purportedly modelling agents, thus obtaining compliance from the victims to send scantily clad photos of themselves which he kept. In respect of sequence 89, the applicant used the victim's mother as a conduit for the requests for photos by providing "Hailey's" phone number to the mother to ensure the cooperation and compliance of the child.
12. Further, as explained by Basten JA in R v Nelson [2016] NSWCCA 130 ("Nelson") at [17] to [25], describing sexual offending against children as "consensual" is an approach that tends to lead to error in principle.
13. Nelson was a successful Crown sentence appeal where there had been a misinterpretation by the sentencing judge of the decision of this Court in DBW v R [2007] NSWCCA 236 at [38] to the effect that whilst the courts are entitled to act on the basis that child sexual assault cases cause substantial psychological harm, no material had been put before the sentencing judge to suggest there had in fact been any substantial psychological or physical harm.
14. As pointed out by Basten JA, there were errors in that approach: "[17] In DBW Spigelman CJ sought to explain that "over the last few years, the public and the courts have become much more aware of, and knowledgeable about, the effects of child abuse." The Chief Justice further noted that the Court "would have been entitled to proceed on the basis that there was a substantial risk of emotional harm", even in the absence of evidence. [18] Nor was DBW the last word from this Court in relation to this issue: indeed, it was but the first step in departing from an earlier approach which presumed no harm was caused by sexual abuse of young children, in the absence of scientific evidence to the contrary. Thus, in R v King the Court stated: "No one could know at the date of sentencing what emotional or psychological harm might have been occasioned to the child in the long term. The early complaint makes its obvious that the child knew that the conduct was wrong and that she found it distressing. It is significant that the act was committed by a stranger. It should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender. It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: see R v MJR." [19] More recent cases have confirmed that approach. Thus, in R v G Baroness Hale referred to the "long-term and serious harm, both physical and psychological, which premature sexual activity can do." That proposition was adopted by this Court in R v Gavel. [20] There may be a risk in overstating the principle in that not every abused child will be profoundly harmed. However, the sentencing judge should be prepared to have regard to a victim impact statement which may either confirm or contradict the presumption. In the present case, the trial judge omitted reference to the victim impact statement available from JM. That statement included the following passage: "Three years ago I was a little girl who went to school, had friends and went shopping then it all just went away like that. I didn't tell anyone for a long time as I was too scared of Aaron. The sexual abuse has impacted on my mental health. I have self-harmed and have anxiety and depression. I hate going outside as I think Aaron will be there and harm me or take my daughter. The anxiety has worsened over time to a point I rarely leave the house and when I do it is always with someone else. I don't like being by myself as I see him when I close my eyes in the shower or when I try to go to sleep. I have a shower with the door open as I think he's going to get me. I have also made my little sister sleep with me because I don't want to sleep by myself. Due to my low mood I just want to stay in bed all day, I hardly go out and have no motivation." [21] The significance of a victim impact statement was considered by this Court in R v Tuala. After a comprehensive review of the developing caselaw with respect to the value of victim impact statements, Simpson J (with the agreement of Ward JA and Wilson J) stated: "[77] By s 28 of the Sentencing Procedure Act, victim impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt. [78] In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them.) [79] Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents." [22] It the present case it might fairly be said that the statement, the critical passage from which is set out above, is in keeping with the expectations based on recent psychological research and the common experience of the courts. It should have been accepted by the trial judge in the absence of any challenge and it should have been relied upon to support the presumptive position that the offending has caused significant harm to the victim. [23] While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him "was consensual". No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as "consensual"; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour. [24] Where, as in this case, such consequences are amply supported by the victim impact statement, the sentencing court should generally treat the risk of such harm as having materialised. [25] Furthermore, this material tends to contradict the proposition that an age difference between a 13 year old girl and an 18 year old man is not significant. Although much will depend upon personalities and physical stature, the age difference is significant. A young girl may more readily be dominated by an older man, but may also be more susceptible to manipulation and persuasion by a young man who is undoubtedly older than she is, but is closer to her own age than an abusive adult." (emphasis added).
15. Whilst clearly not required to prove the harm done, and whilst these victim impact statements cannot be read as aggravating the offending for which the applicant was sentenced and is to be resentenced, the victim impact statements read to the sentencing court in this case acutely demonstrate the personal carnage caused by this kind of offending and its ongoing effects, including on the victim's family. A common theme stated was the feeling of shame, and that if the victim had called the applicant out for his actions, perhaps it would have stopped him from abusing others. The sense of betrayal was another theme, with one victim stating that "she cannot explain the depths of despair that her parents feel" because they had welcomed the applicant into their home. All spoke of a loss of trust, feeling angry and closed off, depressed and anxious.
16. The offending by the applicant involved a very high degree of criminality. The offences were cynically planned and calculated. It is understandable that the sentencing judge concluded on the issue of remorse that the applicant's evidence to the Court and his letter of apology were insincere and self-serving and should be viewed with some circumspection. It is a view that I also hold for the following reasons.
17. The applicant provided a history to psychologist Ms North on 2 August 2021 that he derived sexual gratification from the offences and had felt sexual arousal towards these young females, stating that he "knew what he was doing was wrong" and that it "led him to feel like he was leading a double life". However, when he was cross-examined about this subject matter only seven weeks later at the sentencing hearing on 23 September 2021, he flatly denied that he had been sexually attracted to his victims: "Q: The fact, is you were sexually attracted to these young girls; you would agree with that? A: The, the, the attraction was never was never about the age specifically. It was more so the, the availability for me to chat to these sort of, to these ages of people because they were less likely, obviously, to be out of parties or pubs or clubs."
18. The applicant's letter to the Court and his oral evidence was self-focused and his expressions of regret for "any" damage he caused to the victims were immature and glib, showing little insight and no true remorse. The tone is oddly reluctant to acknowledge the reality of the damage done: "I am so very sorry to you all for any pain, stress or emotional damage my actions have caused", and "I am deeply regretful and remorseful for hurting any of you in any way…". The use of the word "any" in this context is telling. Rather than acknowledging as a fact the pain and damage he caused to his victims, there is a dismissive tone in the use of the word "any". This was followed in the letter by various declarations about himself, how he is "completely changed", "extremely confident (he) will never reoffend", and how he has "found value and self-worth as well as hope and promise for the future ahead". In a remarkably insightless signoff, he wrote "Lastly, I once again extend my apologies to each of the victims, and I wish you all happiness, along with bright and prosperous futures".
19. In his letter the applicant also spoke of jail having "saved his life". He was invited by his counsel to explain what he meant by that. The answer proffered comprised a type of excuse for his offending behaviour, to the effect that he was "never happy in his own life" and was "in situations where he was feeling self-doubt and low self-esteem and suicidal thoughts".
20. The rest of the applicant's oral evidence was focused on how he feels about his experience in custody, its upsetting effect on his family and that he is hoping his time in custody "builds foundations for him to use for the rest of his life". In the context of being asked questions about his obligations under parole to engage in sex offender treatment, the applicant stated that he would be happy to engage in treatment programs as "I want to attend those to make sure that my future is brighter". There was no acknowledgment, inferential or otherwise, of his need to participate in treatment programs to rehabilitate himself from his sexual interest in and offending against children.
21. He was cross-examined about the way he obtained his victims' trust: "You would ingratiate yourself amongst families or sporting group or social groups and you would take advantage of that to meet the young girls that you later offended against?" but rather than acknowledging that was the fact, (as was clearly demonstrated on the agreed facts tendered on sentence), he gave a prevaricating answer about having "lost all his school friends" and that he was a "very lonely person" and that he "sought acceptance and a self-esteem boost by acquaintances that he had met through sport", and that he "unfortunately was in a predicament where I would be running around most Saturdays from 9 o'clock till 5 o'clock and the last thing I wanted to do was go outside and go to a pub and drink or anything like that and that I was working as a referee and was being abused between 9 o'clock and 5 o'clock".
22. It was in this context that he then gave the answer denying that he was attracted to the children he offended against because of their age, which was contrary to what he had acknowledged to be the true situation to Ms North.
23. I have had regard to the report of Ms North. She noted the applicant's underlying symptoms of depression and related feelings of loneliness and perceived rejection that she thought had contributed to his sexual offending. Ms North noted, however, that given the ages of his victims and the duration of his offending, this indicated the presence of deviant sexual interests, as did the contact offences towards six of his victims. Ms North concluded that the applicant had an above average risk for sexual offending. Ms North also concluded that he accepted responsibility for his behaviour, (at least, to her), and had expressed regret and presented as motivated towards engaging in offence specific treatment.
24. An affidavit by the applicant affirmed 30 August 2022 was read on resentence. The applicant refers repeatedly to his perception that there have been inadequate "courses" offered to him. He described his experience in protective custody and criticised his accommodation. He gave a description of the effects on him and his family of COVID-19 related lockdowns. He repeated his willingness to undertake the "courses required of me", again with no acknowledgment of what those courses would be directed to and why. I have taken all of this material into account.
25. This affidavit, the applicant's evidence given on sentence and the assertions set out in his letter to the sentencing court in my view establishes that any "regret" the applicant feels is not true remorse for the damage he has caused to his victims, but regret for the circumstances in which he finds himself as a consequence. His oral evidence demonstrated starkly a failure to acknowledge the real basis of his offending which is that he was sexually attracted to female children of about 12 to 15 years of age and acted on that attraction to their damage, distress and detriment. His answers betray a personal view that he is in custody despite "not being a person like that". There is a lack of insight into his diagnosed paedophilic interest, or worse still, insight but a deliberate lack of preparedness to acknowledge it, and so there is in my view a high risk of reoffending.
26. I have concluded that his prospects of rehabilitation are quite poor given his prevarication and lack of honesty about his sexual interest in children.
27. In my opinion, had the offending not been drawn to the attention of the authorities, the applicant would have continued accessing vulnerable children and offending in the manner demonstrated by his persistent repeated opportunistic and pernicious conduct over the 15 years preceding his arrest.
28. The applicant expended substantial effort, thought and planning on how best to gain the trust of his victims. His offending did not abate and was in fact escalating. In 2018, as a 30 year old man, by way of offending in breach of the Criminal Code, he groomed Child 8, (then 15 years old), and secured her attendance where he then engaged in sexual offending against her. This offending commenced with sequence 83, using carriage service to groom, followed by sequence 85, using carriage service to engage in sexual activity, which was soon followed by aggravated indecent assault, a few weeks later, three offences of sexual intercourse, and a few weeks after that, three more offences of sexual intercourse. This is a chilling and concerning illustration of the actions of a manipulative and determined offender, starting with electronic access to and grooming of a vulnerable child, followed by further manipulation and emotional coercion into physical sexual offending against that child. This offending involved appalling manipulation on his part, claiming to her that he felt "depressed" and "suicidal", and that she could "make him feel better". This manipulation, in the context of him being 30 years old at the time and her being a 15 year old child, is sinister, callous and disgraceful.
29. Whilst all the applicant's offending against all of his twenty-two victims is serious, I consider this offending to be particularly serious and would have specified for those offences, (taking into account the associated Form 1 offences), significantly longer indicative sentences than those indicated by the sentencing judge. I would also have structured the sentence to result in a longer non-parole period and longer head sentence for the State offending, resulting in the imposition of a longer overall aggregate sentence of imprisonment.
30. Accordingly, in the independent exercise of the sentencing discretion, I am not satisfied that a lesser sentence is warranted in law, (Kentwell at [44]) and so the appeal should be dismissed.

Orders

1. I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.

ANNEXURE - Whiteman v R (97114, pdf) 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: 24 March 2023