R v Taane

[2014] NSWCCA 330

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Taane [2014] NSWCCA 330

Hearing dates:

1 December 2014

Decision date:

01 December 2014

Before:

Leeming JA at [1];
McCallum J at [2];
R A Hulme J at [3]

Decision:

Order made 1 December 2014:

Crown appeal dismissed

Catchwords:

CRIMINAL LAW - Crown appeal against sentence - sexual intercourse with child between 14 and 16 - breach of suspended sentence good behaviour bonds - incorrect approach adopted in dealing with breach of bonds - sentencing judge entitled to have regard to earlier offences in order to assess totality - multiple errors made by sentencing judge - sentences not manifestly inadequate

Legislation Cited:

Child Protection (Offenders Registration) Act 2002 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Category:

Principal judgment

Parties:

Regina (Applicant)
Kyle Robert Taane (Respondent)

Representation:

Counsel:
Ms V Lydiard (Crown
Ms R Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s):

2013/145014

 Decision under appeal 

Jurisdiction:

9101

Before:

Christie QC DCJ

File Number(s):

2013/145014

Judgment

1. LEEMING JA: I agree with R A Hulme J.

1. McCALLUM J: I agree with R A Hulme J's reasons for dismissing the Crown appeal.

1. R A HULME J: The Crown appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) in respect of sentences imposed upon Kyle Robert Taane (the respondent) by Christie ADCJ in the District Court at Campbelltown on 25 June and 23 July 2014.

1. The appeal was heard on 1 December 2014. At the conclusion of the submissions for the Crown the Court ordered that the appeal be dismissed. The following are my reasons for joining in the making of that order.

Offences and sentences

1. The respondent was dealt with for four offences of having sexual intercourse with a child above the age of 14 years and under the age of 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW). The maximum penalty prescribed for such an offence is imprisonment for 10 years. The respondent had pleaded guilty to two of the offences and asked for a further two such offences to be taken into account on a Form 1 document pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

1. For the first offence and taking into account the Form 1 offences, his Honour imposed a sentence of 3 years 4 months with a non-parole period of 2 years dating from 7 February 2014. For the second offence he imposed a sentence of 3 years 1 month with a non-parole period of 2 years dating from 7 May 2014.

1. The respondent had previously been dealt with in respect of two similar offences committed against the same complainant by his Honour Judge Armitage on 22 June 2012. For those offences Armitage DCJ imposed suspended sentences of imprisonment for 2 years and 18 months respectively. The respondent had breached certain conditions of the suspended sentence good behaviour bonds. Christie DCJ revoked the bonds and resentenced in an erroneous fashion on 25 June 2014. The matter was returned to his Honour by way of an application by the Crown pursuant to s 43 of the Crimes (Sentencing Procedure) Act to correct the error. His Honour proceeded to specify that for an offence contrary to s 66C(1) (sexual intercourse with a child aged 10 or above but under 14) the sentence of two years would date from 7 May 2015 and there would be a non-parole period of one year. For an offence contrary to s 66C(3) the sentence of 18 months would date from 7 August 2015 and there would be a non-parole period of 9 months.

1. The overall sentence to which the respondent then became subject was one of 3 years 4 months with a non-parole component of 2 years 3 months dating from 7 February 2014.

Facts

1. The respondent is a distant relative of the complainant in that his mother and her mother are cousins. The complainant was born in 1997. At the time of the commission of the first of the offences dealt with by Armitage DCJ she was aged 13 and she was 14 at the time of the second offence. The respondent was aged 25.

1. In about November 2010 the respondent moved from New Zealand to Australia. The complainant's father had arranged employment for him and he lived in the home of the complainant and her family.

1. In May or June 2011 the complainant and the respondent were watching a movie in his bedroom. They kissed and he asked her if she would have sex with him. She said she would if he used a condom.

1. The first offence occurred a few days later when the pair were again watching television late at night. The complainant's parents had gone to bed. The complainant went to the respondent's bedroom where they had sexual intercourse.

1. It was common ground that thereafter the respondent and the complainant had sexual intercourse on between 20 and 30 occasions in either his or her bedroom.

1. In August 2011 the respondent told the complainant's mother that he had a romantic relationship with her daughter. He said that they had been "fooling around" but had not been having sex. He was asked by the complainant's parents to leave the house and did so. However he continued to see her and to engage in sexual activity with her.

1. The last occasion upon which they had sexual intercourse in 2011 was on a day in September when she was 14. Her parents were away interstate and she was being cared for by her grandmother. The respondent telephoned her late at night and she agreed to meet up with him. She climbed out of her bedroom window and met him in a park. They drove to some bushland and had sex in his car.

1. On 28 September 2011 the complainant's mother accessed her Facebook account and saw entries indicating that they had been engaging in sexual intercourse. On 5 October 2011 the complainant reported the matter to police. On 11 October 2011 the respondent discussed the matter with the complainant's mother. She encouraged him to talk to police. He voluntarily attended the Liverpool police station, was interviewed and then charged. He did not apply for bail and was held at the Metropolitan Remand and Reception Centre at Silverwater until released on bail on 9 February 2012.

1. On 16 March 2012 the respondent pleaded guilty and was committed to the District Court for sentence. A final apprehended violence order was made which included a condition that he was to have no contact with the complainant.

1. The respondent continued to have sexual intercourse with the complainant whilst the proceedings were awaiting resolution in the District Court.

1. For the purposes of the forthcoming sentence proceedings the respondent saw a psychologist, Ms Jenny Howell, on 25 May 2012. He conveyed to Ms Howell that he had been "drawn" to the complainant and loved her. Ms Howell considered that he seemed to express "genuine and appropriate regret and remorse for harm done to the complainant and her family". She said he "demonstrated an understanding of issues related to consent and sexual boundaries acknowledging that his behaviour was unacceptable". He told her that he felt "very ashamed".

1. Ms Howell assessed the respondent's risk of further sexual offending. This was carried out with her being oblivious to the respondent's continued sexual relationship with the complainant. She noted, "Mr Taane is not in a current intimate relationship". As a consequence, much of what Ms Howell reported, and the opinions she expressed, are (with no criticism of her) worthless. One example is her statement that the respondent "accepts that his offending behaviour is unacceptable and I would not regard him as engaging in extreme minimisation or denial".

1. The respondent also attended an interview with Community Corrections in relation to the preparation of pre-sentence reports on 17 May 2012. Although the reports are not within the appeal book, it is safe to assume that he did not disclose to the authors the recent continuation of his offending conduct.

1. On 13 June 2012 the complainant undertook a pregnancy test which revealed that she was four weeks pregnant. It was the following week that the respondent appeared before Armitage DCJ when the suspended sentences of imprisonment were imposed.

1. On 15 July 2012 the complainant travelled to New Zealand to live with her maternal grandmother. Over the following week the respondent disclosed to her mother that she was pregnant.

1. The complainant gave birth to their son on 24 February 2013 in New Zealand. In April 2013 she travelled to Sydney. Police made contact with her and she agreed to attend a police station and provide a statement. She told police that between April and June 2012 the respondent had sexual intercourse with her on a number of occasions. She described four specific occasions when this had occurred. She said that it was consensual on each occasion.

1. The respondent was arrested on 10 May 2013. He participated in a recorded interview in which he made full admissions to being in an intimate relationship with the complainant and having had sexual intercourse with her between April and June 2012. He estimated this occurred on about 10 occasions. He also told police that he loved and cared for the complainant and that she had consented to the sexual intercourse on each occasion. He admitted that he was aware that she was 14 years old at the time and that it was an offence to have sexual intercourse with a child under the age of 16. He also admitted that he was the father of the complainant's child. He was then charged with the four offences contrary to s 66C.

1. On 6 November 2013 the respondent pleaded guilty and was committed to the District Court for sentence. However on 7 February 2014 he was refused bail after having been arrested and charged with offences contrary to the Child Protection (Offenders Registration) Act 2002 (NSW) that involved failures to comply with his reporting obligations.

Personal circumstances of the respondent

1. The respondent was born in 1986 and so he was around 25 years of age at the time of the offences and around 28 when sentenced. He was born and raised in New Zealand by his maternal grandmother until the age of 10 because of the inability of his mother to look after him. He then lived with his mother for a short period before going to live with his paternal grandfather. He then alternated between living with him and his mother until the age of 18 when he left home.

1. He completed Year 11 at high school and then worked in a vineyard before obtaining employment as an arborist. When he moved to Sydney in 2011 he continued to work as an arborist.

1. The respondent had no previous convictions of any significance. Between the time he was dealt with by the two judges the respondent was dealt with for a number of driving offences: driving whilst suspended (twice) and driving whilst disqualified. He received fines, disqualification and a good behaviour bond.

1. The respondent told the author of a Pre Sentence Report prepared in April 2014 that he had not had any contact with his son or the complainant.

1. The psychological report that was prepared by Ms Howell in May 2012 was tendered in the proceedings before Armitage DCJ and again in the proceedings before Christie ADCJ. Ms Howell described a complex and disrupted upbringing of the respondent with frequent moves and separation from his biological mother. She reported that his first sexual experience was at the age of 12 with a 16 year old female. She said that there was no suggestion that he was a violent man and she did not consider his emotional identification with children as inappropriate or abnormal. She found that he represented a low risk of reoffending and was unlikely to engage in predatory or paedophilic behaviour. She said that he seemed genuinely remorseful for the harm done to the complainant and her family. She concluded that, whilst he did not suffer from any psychological disorder, he was a somewhat immature and naïve young man who appeared to be emotionally vulnerable. Of course, as I have previously noted, Ms Howell was not told about the continued offending.

1. His Honour allowed a 20 per cent reduction of sentence on account of the utilitarian value of the respondent's pleas of guilty.

Ground 1: His Honour erred in failing to consider the revocation of the s 12 bond imposed by Judge Armitage before imposing sentences for the fresh offences

Ground 2: His Honour erred in imposing sentences for the breach of the s 12 bonds imposed by Judge Armitage which were made totally concurrent with sentences imposed for the other offences

1. Christie ADCJ initially said that he was going to impose concurrent sentences for the two offences he was dealing with and said they would each be 3 years 4 months with a non-parole period of 2 years.

1. His Honour appears to have been unaware until after he had announced those sentences what he was required to do in relation to the breach of the s 12 bonds. It was at that point he asked, "Ms Crown what do you wish me to do about the breach of the bond given by Judge Armitage?" Before she answered, he indicated that he proposed to fix a term of imprisonment of 14 days and asked if she wished to say anything about that. He added, "Whatever sentence I pass I wasn't intending to make it other than concurrent".

1. The experienced solicitor who was appearing for the Crown first reminded the judge that he had omitted to mention that he had taken the Form 1 offences into account, observing as well that it would appear that he had not because he had imposed concurrent sentences of identical duration for both offences.

1. In response, the judge confirmed that he had taken the Form 1 offences into account. He said that in relation to "the breach" there "maybe some validity in imposing something that would not be completely concurrent with the present sentence". He then announced that "not so much as a resentence but at least as a penalty for having breached a recognisance" he would impose a sentence of 3 months and order that it be served from "7 April 2016 until 6 May 2016" [sic].

1. When the matter came back before his Honour on 23 July 2014 for s 43 correction, his Honour clarified that he had imposed a 3 month sentence from 7 February 2016 until 6 May 2016, thereby extending the non-parole period for the sentences he had imposed by 3 months.

1. What appears in the transcript is unclear and confusing but what happened was this. At first his Honour imposed an overall sentence for the offences he was dealing with (along with the Form 1 offences) of 3 years 4 months with a non-parole period of 2 years. He then added 3 months in a purported attempt to deal with the breach of the s 12 bonds, yielding a total term of 3 years 4 months with a non-parole component of 2 years 3 months. He then corrected that on the next occasion in a way that maintained the same overall sentence.

1. The Crown is right to point out that the correct approach would have been for his Honour to have revoked the suspended sentence bonds pursuant to s 99 of the Crimes (Sentencing Procedure) Act and to have considered what should be done in terms of setting commencement dates and non-parole periods for those offences at the same time as he was considering the sentences to be imposed for the later offences. All of this would have been guided by the principle of totality.

1. Be that as it may, the real question is whether the ultimate overall sentencing outcome is manifestly inadequate, a matter that falls for determination under the final grounds.

Ground 3 - His Honour erred in considering himself to be constrained by reason of the sentences imposed by Armitage DCJ on the basis of the principle of parity

1. Christie ADCJ did not appear to notice that Armitage DCJ had taken into account the fact that the respondent had been held in custody bail refused for 4 months prior to being sentenced. In any event, he made it plain that he thought the sentences imposed by Armitage DCJ were inadequate:

"I would be misleading the Court and the public if I did not say that I totally disagree with the sentence that was imposed by his Honour in relation to these matters. That the Crown did not appeal that sentence I find not only surprising but absolutely astounding."

1. He felt constrained however:

"But I think it does oblige me to deal with this present matter somewhat more leniently than I otherwise would regard to be the case. In other words I think there has to be at least some modicum of parity."

1. His Honour used the term "parity" but I think counsel for the respondent is correct in submitting that what his Honour was probably talking about was consistency.

1. His Honour later indicated that he had initially been of the view that the starting point (before allowance for the pleas of guilty) for the sentences he had to impose should have been 6 years. Because of his perceived need to have regard to the earlier sentences, he reduced that to a starting point of 4 years 2 months.

1. The Crown submitted that the judge erred in feeling so constrained by the earlier sentences. The later offences were of significant objective seriousness and there were aggravating factors. Matters relevant to that assessment included the age differential; the exploitation of the youth of the complainant; her pregnancy; and that the respondent was on bail and subject to an apprehended violence order.

1. In my view, Christie ADCJ was required to have regard to the sentences imposed for the earlier offences and to the circumstances of those offences in order for him to properly assess the totality of the criminality. In dealing with the respondent for the breach of the s 12 bonds his only function was to specify commencement dates for the sentences and set non-parole periods. He was not empowered to impose longer sentences for the later offences to make up for any perceived inadequacy in the earlier sentences.

1. The ultimate question remains whether his Honour erred in imposing sentences and assessing the appropriate measure of concurrency and accumulation that yielded something that is manifestly inadequate, a matter for consideration under the final grounds.

Ground 4 - His Honour erred in imposing a manifestly inadequate sentence upon the respondent on 25 June 2014

Ground 5 - His Honour erred in imposing a manifestly inadequate sentence on the respondent on 23 July 2014

1. The Crown submitted in writing in relation to these grounds that the sentences were manifestly inadequate because of the following.

(1)   "The respondent was a convicted offender of identical offences upon the same complainant who was 14 years old"

(2)   "General deterrence was very significant" and "personal deterrence must have had a substantial part to play"

(3)   "The number of aggravating factors present should have led to greater punishment than that imposed"

(4)   "The failure to accumulate to any degree the sentences for the second lot of offences upon the sentences imposed by Judge Armitage which included an offence under s 66C(1) which carries a maximum penalty of 16 years, demonstrates error which combined with his Honour's approach to the issue of parity has led to the manifestly inadequate sentence that the appellant complains about".

1. Nothing beyond those contentions was advanced in oral submissions.

1. Ms Burgess, counsel for the respondent, submitted that the sentences for the s 66C(3) offences were severe rather than inadequate. There was a substantial increase in respect of the sentences imposed by Christie ADCJ as compared to those imposed by Armitage DCJ. The latter had adopted starting points before allowing a 25 per cent reduction for the pleas of guilty of 2 years and 2 years 8 months. And that was taking into account that the respondent had also spent 4 months in pre-sentence custody. The starting point adopted by Christie ADCJ was 4 years 2 months. It was submitted that a 6 year starting point that he said he would otherwise have adopted was manifestly excessive.

1. Ms Burgess also pointed to a number of further errors made by Christie ADCJ that had not been noted in the Crown's submissions. During the proceedings on sentence it was submitted that the respondent should receive "the full discount" for his early pleas of guilty. His Honour responded that "subject to anything the Crown might put I'd be inclined to accept that". The solicitor for the Crown did not oppose that. But then his Honour allowed a discount of 20 rather than 25 per cent and gave no reason for doing so.

1. Another error was that his Honour repeatedly misstated the age of the complainant. She was aged between 14 years 7 months and 14 years 10 months at the time of the second group of offences but his Honour referred to her as being a 12 or 13 year old.

1. Another matter was that the judge appeared to think that the respondent had failed to disclose to the authors of the reports that were before Armitage DCJ that the complainant was pregnant. But the pregnancy only became known the month after those reports were prepared.

Conclusion

1. I acknowledge the matters the Crown identified concerning the seriousness of the offences (see above at [45]). It is obviously a serious matter to engage in sexual intercourse with a child under the age of 16; the penalties prescribed by Parliament make that clear enough.

1. A starting point of 4 years 2 months for the latter offences is significant in all of the circumstances of this case. In looking at the overall sentence, sight should not be lost of the fact that there was a further 4 months the respondent had spent in pre-sentence custody and so the minimum period of his incarceration amounts to 2 years 7 months.

1. The sentences might be described as lenient (although I am prepared to acknowledge that reasonable minds might differ about that). However, I was not left with any sense that the sentences were completely outside the legitimate range available to the judge in the exercise of his sentencing discretion.

1. It was for these reasons that I agreed with the dismissal of the Crown appeal.

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Decision last updated: 19 December 2014