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R v Whittaker [2021] ACTSC 189

The offender was sentenced following pleas of guilty to 2 counts of using a carriage service to transmit an indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Commonwealth Criminal Code and 1 count of possessing child abuse material obtained by using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code. Offender sentenced to additional State offences.

Nature and Circumstances: The offending in the first transmission was of low objective seriousness as the conduct depicted the offender hugging and kissing the complainant, who was 15 years old. The offending in the second transmission was objectively seriousness because of its graphic content and the age difference between the offender and complainant. Both transmissions were designed to reach the complainant only. The offender’s possession of child abuse material, though for personal use, was objectively serious given the substantial quantity of 383 files, abuse of at least 100 actual children and inclusion of more serious conduct.

Antecedents: Offender was sentenced in 2002 for offences of aggravated indecent assault on a person under 16 years and having sexual intercourse with a person aged between 10 and 16 years. These offences were not fundamentally different in nature to the current offences. The offender was a registered child sex offender for almost all the period between 2002 and 2018 when the current offences commenced.

Guilty Plea: Offender pled guilty to each charge at the earliest reasonable opportunity, which carried significant utilitarian value. Discount of 25% was allowed for all sentences. Section 16AAB applies as offender was convicted of Commonwealth child sexual abuse offence and has previously been convicted of a child sexual abuse offence. Section 16AAC allows for a lesser sentence of up to 25% to be imposed because of a plea of guilty.

Cooperation: Offender provided necessary passwords and made admissions to police. The admissions were not extensive and do not justify a discount. The offender was legally required to provide the passwords. Such compliance with the law does not entitle a person to a discount.

Offender sentenced to 9 years and 6 months imprisonment. No federal non-parole period set. Non-parole period for State offences set for 4 years and 9 months.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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