SUPREME COURT OF QUEENSLAND
CITATION:
R v Kane [2019] QCA 86
PARTIES:
R
v
KANE, Eden James
(applicant)FILE NO/S:
CA No 97 of 2019
DC No 2191 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Bundaberg – Date of Sentence: 17 April 2019 (Jarro DCJ)
DELIVERED ON:
17 May 2019
DELIVERED AT:
Brisbane
HEARING DATE:
13 May 2019
JUDGES:
Sofronoff P and Morrison JA and Davis J
ORDERS:
1. Leave to appeal against the sentences imposed on each of counts 1 and 2 on the indictment is granted.
2. The appeal against the sentences on each of counts 1 and 2 is allowed.
3. The sentences imposed on each of counts 1 and 2 on the indictment are set aside.
4. On each of counts 1 and 2 the applicant is sentenced to a term of imprisonment of three years imprisonment with those terms to run concurrently.
5. The period of 417 days pre-sentence custody between 15 April 2014 and 5 June 2015 is declared as time already served under the sentences.
6. The applicant be admitted on parole on 17 May 2019.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of burglary and one count of child stealing – where the applicant was sentenced to three years and six months imprisonment, and four years and six months imprisonment on each count respectively, with parole eligibility set four months after the date of sentence – where the applicant’s bipolar disorder was the underlying cause of the offending – where the applicant did not have a sexual or violent intention in abducting the child – where the child was unharmed and voluntarily returned after two days – where comparative cases show a wide range of sentences – whether the sentence was manifestly excessive in the circumstances
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – MENTAL DISORDER – where the applicant pleaded guilty to one count of burglary and one count of child stealing – where the applicant was sentenced to three years and six months imprisonment, and four years and six months imprisonment on each count respectively, with parole eligibility set four months after the date of sentence – where the applicant’s bipolar disorder was the underlying cause of the offending – where the applicant has successfully sought ongoing treatment of his bipolar disorder and is now in remission – where the learned sentencing judge referred to deterrence in his remarks – whether the applicant’s bipolar disorder made it an inappropriate matter to express the importance of deterrence
Criminal Code (Qld), s 27
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v HBL[2014] QCA 270, cited
R v Tsiaras [1996] 1 VR…
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- AGLC
- R v Kane [2019] QCA 86
- Case
- [2019] QCA 86
- Decision Date
CaseChat Overview and Summary
The court considered various comparative sentences, noting the wide range of outcomes in similar cases. Relevant factors included the relationship between the child and the offender, the duration of the abduction, and the absence of violence or sexual motivation. The court also addressed the argument that general deterrence was an inappropriate consideration given the applicant's mental health condition. Ultimately, the court found that the sentences were manifestly excessive and that general deterrence was not an appropriate consideration in this case.
The court granted leave to appeal and allowed the appeal against the sentences. The original sentences were set aside and replaced with concurrent terms of three years' imprisonment for each count, with credit for the applicant's pre-sentence custody. The applicant was ordered to be admitted on parole on a specified date.
The court's final orders included granting leave to appeal, setting aside the original sentences, imposing new concurrent sentences of three years' imprisonment, and ordering the applicant's admission on parole on a specific date, taking into account the time already served.
Orders
Orders of the court
1. Leave to appeal against the sentences imposed on each of counts 1 and 2 on the indictment is granted.
2. The appeal against the sentences on each of counts 1 and 2 is allowed.
3. The sentences imposed on each of counts 1 and 2 on the indictment are set aside.
4. On each of counts 1 and 2 the applicant is sentenced to a term of imprisonment of three years imprisonment with those terms to run concurrently.
5. The period of 417 days pre-sentence custody between 15 April 2014 and 5 June 2015 is declared as time already served under the sentences.
6. The applicant be admitted on parole on 17 May 2019.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Three grounds of appeal were argued. These were:(i)The sentences were manifestly excessive;(ii)The learned sentencing judge considered general deterrence as an important consideration and that was an error because the psychiatric condition of the applicant was such that the case was not an appropriate one to express general deterrence; and(iii)The judge erred when finding that Jane was “terrified” during her abduction when the evidence pointed to the contrary.Consideration The third ground of appeal can be dealt with shortly. It arose from the following passage in the sentencing remarks:“Now, you should obviously be thoroughly ashamed of your actions. Your actions, Mr Kane, were reckless and they were absolutely foolish. You showed no due deference to others – to think that you are entitled to go into someone’s house and to abduct one of their children and to have that child over the course of two days is beyond comprehension. Clearly, it would have been, not only an extremely terrifying ordeal for that child, but also for the family associated with that child. You are a stranger to them, and irrespective of whether or not you took drugs or alcohol certainly does not excuse your offending behaviour.”[9][9]ARB 39. There is no direct evidence that Jane was terrified. However, the agreed facts were that a strange man entered the bedroom of a three year old girl in the night and took her away. He then left her alone in the dark while he went away to get his car. He told her that he was taking her home but then took her somewhere else where she had never been. When she asked for her parents he told her that she could not go home. This stranger then bathed her. Finally, he left her alone in a strange place, the showgrounds, where, because of her infancy she would have had no idea what was going to happen to her next. The agreed facts included that this little girl still suffers from nightmares and that she will not sleep in her bed as she is frightened. It is a fair inference, from its nature and from the undisputed consequences that this experience was a frightening ordeal for this child. Ground three is rejected. Grounds one and two can be considered together. Various comparative sentences were cited both to the learned sentencing judge and to us. A distinction can be drawn between offences of child stealing when the child is unknown to the offender and cases in which the child is a part of the offender’s family, such as when a disgruntled parent takes the child. These cases show quite a wide range of sentences.[10] Features which appear in the cases as relevant to sentence include:(i)The relationship between the child and the offender.(ii)The period of time over which the child is kept from his or her rightful custodian.(iii)Whether there was any violence perpetrated on the child.(iv)Whether there was any sexual motivation in the abduction.(v)Whether there was any sexual misconduct towards the child.[10]R v HBL [2014] QCA 270, R v Humphrys Unreported Court of Appeal 172 of 1985, R v Cogdale [2004] QCA 129 (a different offence to the present namely taking a child for immoral purposes Criminal Code (Qld) s 219), R v Dickson [1999] QCA 251 and R v Wheldon [1997] QCA 432.