R v Lane

[2013] NSWSC 1808

Supreme Court

New South Wales

Case Title:	R v LANE
Medium Neutral Citation:	[2013] NSWSC 1808
Hearing Date(s):	8 November 2013
Decision Date:	06 December 2013
Jurisdiction:	Common Law - Criminal
Before:	Hidden J
Decision:	Sentenced to 22 ½ years, NPP 17 years, from 23.09.10
Catchwords:	CRIMINAL LAW - sentence - murder - late plea of guilty - premeditated killing to pursue lesbian relationship
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	- R v Burns [2013] NSWSC 720 - Muldrock v The Queen [2011] HCA 39, 244 CLR 120
Category:	Sentence
Parties:	Regina (Crown) Ms Tanya Louise Lane (offender)
Representation
- Counsel:	Counsel: Mr Chris Maxwell QC (Crown) Ms Anne Healey (offender)
- Solicitors:	Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) Ms Mandy Hull - Mandy Hull & Associates (offender)
File Number(s):	2010/317158

REMARKS ON SENTENCE

1. The offender, Tanya Louise Lane, has pleaded guilty to the murder of Steven Quire early in 2010. In October 2012, she and a co-accused, Renae Burns, were jointly presented for trial before me for the murder. In the event, Ms Burns' plea of guilty as an accessory after the fact to that crime was accepted by the Crown in satisfaction of the indictment against her, and she has since been sentenced: R v Burns [2013] NSWSC 720. The present offender proceeded for trial alone in November last year but on 18 December 2012, at a very late stage of the trial, I discharged the jury because of new evidence which had come to light. The matter was re-listed for trial on 19 August, this year, but on 2 August she entered her plea of guilty.

Facts

1. The facts for the purpose of sentence have to be extracted from the evidence in the aborted trial. This has been done in a statement of agreed facts prepared by the Crown, although there is a dispute about two matters which the Crown contends should be inferred from those facts.

2. Steven Quire was 33 years old at the time of his death. He had been in a long-standing relationship with Renae Burns. They lived at Rutherford, in the Hunter area. They had a child, and they also cared for an older child, Maddison, who was the product of an earlier relationship of Ms Burns. There were difficulties in their relationship in the years leading up to the death of Mr Quire, and from some time in 2008 the offender and Ms Burns developed an intimate relationship. They sought to conceal this from Mr Quire and they pursued the relationship (perhaps not very successfully) in a clandestine manner. The offender's motive for the murder was to enable the relationship to be pursued openly, without interference by him. This, indeed, they did immediately after his death.

3. Between late 2008 and February 2010, the offender approached a number of people about obtaining a gun. She wanted one, she said, for the purpose of hunting animals. Eventually, in January 2010, a man sold her a flare gun, which could be converted into a firearm by fitting a sleeve over its barrel. The offender shot Mr Quire with that gun at close range. It is the Crown case that this was done on the night of 20 February 2010 or the early hours of the following morning. He was last seen or heard from on or about 20 February 2010. Some weeks later, on 13 March, his body was found buried in a shallow grave in the Watagan Forest near Freeman's Waterhole.

4. Between the time of the murder and the discovery of Mr Quire's body, the offender told a number of lies to various people in an effort to explain his disappearance. Among those was the suggestion that he was in danger from bikies to whom he owed money for drugs. That account was pursued in interviews with the police after the body was discovered. She denied to police that she had been in a relationship with Ms Burns.

5. Ms Burns herself participated in all these falsehoods, and this was the basis upon which she was sentenced as an accessory after the fact.

6. At her trial the offender gave evidence, in which she provided a very different account of what had occurred. Put shortly, she admitted having purchased the flare gun but said that she did so at Ms Burns' request. She said that on the evening of 20 February 2010 she received a text message from Ms Burns seeking her help. She went to the home at Rutherford, where Ms Burns told her that she had become involved in a struggle with Mr Quire for the gun during which it discharged, fatally wounding him.

7. According to the offender, Mr Quire's body was not to be seen in the house and Ms Burns did not tell her where it was. The offender denied taking any part in his burial in the Watagan Forest. In her evidence she also admitted the relationship with Ms Burns, and acknowledged the lies she had told to police and others about the circumstances of Mr Quire's disappearance. Plainly enough, this account had been crafted to accommodate the weight of the evidence against her.

8. The first of the disputed matters is where the killing occurred. It is the Crown case that Mr Quire was shot at his home, an aggravating feature under s 21A(1)(eb) of the Crimes (Sentencing Procedure) Act 1999. The Crown prosecutor relied upon the evidence of Ms Burns' daughter, Maddison, about Mr Quire's disappearance. Maddison recalled a night when the family were at home together. She and the younger child retired to bed. The next morning she woke to find that Mr Quire was not there. She went to his room and saw that his bed was unmade, which was unusual for him. The offender arrived in her 4 wheel drive vehicle, and took Ms Burns and the children back to her house. Importantly, when the deceased's body was located he was clad only in a pair of boxer shorts which, according to Maddison, he wore every night when he retired to bed.

9. Counsel for the offender, Ms Healey, did not concede that the killing had occurred at the home. She relied upon Maddison's evidence that she had not been woken that night by any person arriving at the house or by the sound of a gunshot. Nevertheless, it seems to me that the whole of Maddison's evidence points strongly to the shooting having occurred in the home. That said, I do not find it necessary to resolve this issue. In the circumstances of this case, whether Mr Quire was murdered in his home or somewhere else is of little significance.

10. The second matter in dispute is whether the offender took part in the disposal of Mr Quire's body. The Crown prosecutor submitted that I would be satisfied beyond reasonable doubt that she did and, in particular, that her car was used for that purpose. He relied primarily upon an intercepted phone call between the offender and Ms Burns on 3 May 2010, after police had executed a search warrant at her home and seized her 4 wheel drive vehicle. The conversation was in whispered tones, and much of what was said is not easy to decipher from the recording in evidence.

11. However, I am satisfied that the conversation included a discussion about whether traces of blood might be found in the vehicle. There was evidence that the offender was familiar with the area of the Watagan Forest from previous 4 wheel drive episodes. After the disappearance of Mr Quire, but before his body was found, there was observed to be mud on the vehicle, although this could be explained by an innocent trip in the area at around that time.

12. I am satisfied to the requisite degree that Ms Lane was involved in the disposal of Mr Quire's body, although I cannot conclude precisely what that involvement was. No doubt, a 4 wheel drive vehicle would have been required to reach the burial site. If she herself buried the body, it is unlikely that she could have done so without assistance. However, it was plainly in her interests that the body be disposed of and, even if she had arranged for someone else to do so, she would be no less culpable in that respect.

13. This is not an unimportant matter, but it also is of limited significance. This was a planned killing and, inevitably, some thought must have been given to the disposal of the body. I should add that Ms Burns pleaded guilty to accessory after the fact to murder only on the basis of her lies after the event. It was not part of the case against her on sentence that she was involved in the burial.

Victim impact statements

1. I received victim impact statements by Mr Quire's brother, Darren Quire, his sister, Amanda McKay, and his step-daughter, Maddison Burns. Maddison was only 6 months old when Mr Quire entered into his relationship with her mother and, as she put it in her statement, he was "the only father I have ever known."

2. These statements were very moving. They were eloquent expressions of the grief and anguish which they have suffered as a result of Mr Quire's violent and untimely death, and of the enduring effects this crime has had upon their lives. During the sentence proceedings I expressed my deepest sympathy to them, and to all those affected by this tragedy, and I do so again now.

Subjective case

1. The offender was 25 years old at the time of the murder, and is now 29. She has no previous convictions. Her background is sketched in the reports of Dr Wayne Reid, psychologist, and Dr Olav Nielssen, psychiatrist. The Crown prosecutor objected to part of the offender's history set out in Dr Nielssen's report, as it was contentious and unsupported by evidence and Ms Healey did not press it.

2. The offender had a difficult upbringing. Her parents separated when she was 3 years old, and she was raised by her mother. At the age of 6 she was sexually abused by a member of her extended family, who was later charged with offences arising from that conduct and imprisoned. She did not see her relationship with her mother as close and supportive, and her home life was disrupted by the alcohol abuse of her mother's new partner. She was educated to Higher School Certificate level, and had a satisfactory employment record. In her early teenage years she thought of herself as bisexual, but by the age of 18 found that she was more attracted to women. She has a son, aged 4, who was conceived by artificial insemination.

3. At the age of 16 she developed epilepsy. This was reasonably controlled by anti-convulsant medication, although she told Dr Nielssen that she had occasionally suffered seizures triggered by stressful events. An MRI scan performed in 2011, while she was in custody, disclosed abnormalities in the brain, which were of long standing and may have been of congenital origin.

4. Both Dr Reid and Dr Nielssen interviewed the offender, and also examined records of her treatment before and after she came into custody. Dr Nielssen concluded that at the time of the murder and over the period leading up to it, she was suffering not only from epilepsy but also from anxiety disorder (or post-traumatic stress disorder) and depression. He noted that epilepsy is "frequently associated with symptoms of psychiatric disorder, including personality changes, impairment in communication and periods of confusion and amnesia around the time of seizures." He also thought it likely that she was affected by symptoms of post-natal depression at the relevant time.

5. Apart from the epilepsy, the offender's depression appears to have been longstanding. Dr Nielssen referred to an assessment of her at Maitland Hospital in May 2009 which "elicited a history of childhood trauma, chronically depressed mood and self-injurious behaviour." The post-traumatic stress disorder appears to have derived from a violent incident she experienced in December 2008, during which Mr Quire was shot, albeit not fatally. This matter was the subject of some controversy in the early stages of the trial. The Crown contended that she was involved in that shooting and sought to have evidence of the incident admitted in the trial. I rejected the evidence and, for present purposes, I make no finding about it adverse to her. Whatever might be the truth of what occurred, I accept that it did affect her in the manner diagnosed by Dr Nielssen. The Crown prosecutor did not take issue with this.

6. Dr Reid concluded in his report:

   "On neuropsychological assessment Ms Lane demonstrates evidence of a decline in her verbal intellectual functions from her premorbid estimate, deficits in her speed and flexibility of thinking that in the context of her brain MRI scan results are in keeping with acquired brain impairment. ... . In addition to her cognitive problems she presents with a history of childhood abuse, a more recent history of post traumatic stress disorder, depression, anxiety and self harm."

   Dr Nielssen expressed his conclusion in this way:

   "I believe Ms Lane would be able to raise the effects of a significant anxiety and depression around the time of the offence, as well as the effect of her congenital brain condition on her behaviour in mitigation."

7. The offender has undergone assessments while in custody and is on a course of medication. Dr Nielssen, who last saw her in August this year, found that her depression was in remission. It is hoped that she will receive the treatment she needs while in custody, although I accept that her conditions may well make her experience of custody more burdensome.

8. I have noted her lack of any criminal history. The present offence arose from the circumstances which I have described, and I think it unlikely that she would re-offend in any violent manner. I trust that in time she will come to acknowledge the enormity of her crime. She gave no evidence in the sentence proceedings, and nothing in the material before me contains any expression of remorse. That said, I consider that she has good prospects of rehabilitation.

9. Her plea of guilty is entitled to some recognition, although it was very late. I shall reflect its utilitarian value by reducing the sentence which I otherwise would have imposed by 10%.

Sentence

1. As is well known, the crime of murder carries a maximum sentence of imprisonment for life and a standard non-parole period of 20 years. The approach to the standard non-parole period is to be found in ss 54A and 54B of the Crimes (Sentencing Procedure) Act, as they have been amended in the light of the decision of the High Court in Muldrock v The Queen [2011] HCA 39, 244 CLR 120.

2. Section 54A(2) now provides:

   "(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness."

   Section 54B(2) provides:

   "(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender."

   Section 54B(3) preserves the requirement that a court set out its reasons for departing from the standard non-parole period, which I have done in these remarks. Subsection (6) provides:

   "(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable."

3. I accept Ms Healey's submission that this was anything but a sophisticated criminal enterprise. The fact remains, however, that it was premeditated murder, planned over a significant period of time. The emotional background to the killing affords some explanation of the offender's conduct, but no excuse for it. This is a serious offence of its kind.

4. An important part of the submissions on sentence focussed on the competing arguments of the parties about the significance of the offender's mental conditions. Ms Healey argued that those conditions contributed to the commission of the crime and lessened the need for the sentence to reflect general deterrence. She cited authority for the well known principles governing this matter, to which I need not refer. The Crown prosecutor accepted the evidence of her mental conditions, but submitted that they were of limited significance for the purpose of sentence. The fact remains, he argued, that this was a planned killing perpetrated for motives of self interest.

5. I find force in the Crown prosecutor's submission. I accept that the offender's mental problems affected her judgment to some extent, more at the emotional than the cognitive level, and that she is entitled to a measure of leniency on that account, although not to any marked degree.

6. She is also entitled to the benefit of her prior good character and favourable prospects of rehabilitation. I do not find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. The application of the statutory formula to the sentence which I propose will leave her with a substantial period of parole eligibility, and any lesser non-parole period than that which I have in mind would be inadequate to reflect her criminality.

7. Ms Healey cited a number of cases which, to a greater or lesser degree, share some of the features of the present case. I appreciate her assistance in that respect, and I have had regard to them. However, each of them turned on its own facts and it is not necessary to refer to them in these remarks.

8. But for the offender's plea of guilty, I would have imposed a sentence of imprisonment for 25 years. On account of her plea, I shall reduce that term by 10% to 22 ½ years. The application of the statutory proportion to that term leads to a non-parole period, in round figures, of 17 years. She has been in custody since her arrest on 23 September 2010, and the sentence will date from that day.

9. Tanya Louise Lane, for the murder of Steven Quire you are sentenced to a non-parole period of 17 years, commencing on 23 September 2010 and expiring on 22 September 2027, and a balance of term of 5 ½ years, commencing on 23 September 2027 and expiring on 22 March 2033.

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