R v Taupe (No 2) - [2013] NSWDC 330

District Court

New South Wales

Medium Neutral Citation: R v Taupe (No 2) [2013] NSWDC 330
Decision date: 05 April 2013
Before: Cogswell SC DCJ
Decision:
Aggregate sentence of 3½ years imprisonment, non-parole period of 21 months.

Catchwords: CRIMINAL LAW - Particular offences - aggravated sexual assault - three assaults against same child victim when victim aged 12 to 15 - victim offender's stepdaughter. Sentence - gravity - digital penetration less serious form of penetration than penile penetration - each offence spontaneous, opportunistic, brief - relevant factors - no criminal record - good prospects of rehabilitation - likelihood of re-offending low - character of less weight - remorse - no acceptance by offender of responsibility for his actions - offender treated by a psychologist for last 3 years - depression given less weight because acted with knowledge - treating psychologist's report given greater weight - report grounded finding of special circumstances.
Legislation Cited: Crimes Act 1900 (NSW) s 66C.
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53A.
Cases Cited: Benitez v R [2006] NSWCCA 21; 160 A Crim R 166.
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321.
Dousha v R [2008] NSWCCA 263.
SDS v R [2009] NSWCCA 159.
R v Wright (1997) 93 A Crim R 48.
Category: Sentence
Parties: Regina (Crown)
Peter Taupe (Offender)
Representation: Counsel:
CC Patrick (Crown)
B O'Reilly (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kernaghan and Associates (Offender)

File Number(s): DC 2011/00018805
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms (which are colours).

REMARKS ON SENTENCE

I am sentencing Peter Taupe for three offences of aggravated sexual intercourse against a child.

Mr Taupe was charged with far more offences but pleaded not guilty and, after a trial before me without a jury, I found him guilty of the three offences which I am about to sentence him for. The victim in each of the offences was his stepdaughter Abbie White. Abbie White - if not Mr Taupe's stepdaughter - was certainly, I was satisfied beyond reasonable doubt, in a position where Mr Taupe could exercise authority over her.

The offences all occurred some time ago. Abbie White is now a young adult. One of the offences occurred in 2000, another in the following year. The third offence occurred in 2004.

The first two offences were offences against s 66C(2) of the Crimes Act1900 (NSW). Those two offences carry a maximum of 10 years imprisonment, which was the penalty fixed by Parliament at that stage. That is the penalty which is relevant for my purposes.

The third offence committed in 2004 was an offence against s 66C(4) of the same Act. Parliament had fixed at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Taupe (No 2)

Details

AGLC: R v Taupe (No 2) [2013] NSWDC 330
Case: [2013] NSWDC 330
Decision Date: 05 April 2013

CaseChat Overview and Summary

The case of R v Taupe (No 2) involved the appellant who was convicted of three counts of aggravated sexual assault against his stepdaughter, who was aged between 12 and 15 years during the period of the assaults. The case was heard in the Court of Appeal, which was tasked with reviewing the sentence imposed by the lower court. The appellant appealed against the sentence on the grounds that it was excessive and did not adequately reflect the circumstances of the case.

The legal issues before the court involved the assessment of the appropriate sentence for the crimes of aggravated sexual assault against a child. The court had to consider various factors, including the nature and gravity of the offences, the appellant's character and prospects of rehabilitation, and the relevance of the special circumstances argued by the defence. The court also needed to determine the appropriate weight to give to the appellant's remorse and the psychologist's report that suggested special circumstances existed.

In delivering the judgment, the Court of Appeal considered the nature of the offences, which involved digital penetration and occurred over a period when the victim was a child. The court recognised that each offence was spontaneous, opportunistic, and brief, but emphasised the gravity of the crimes due to the relationship between the offender and the victim and the repeated nature of the assaults. The court also noted the appellant's lack of a criminal record and the low likelihood of re-offending but found that his lack of remorse and denial of responsibility were significant factors. The court ultimately found that the psychologist's report provided a more reliable basis for the existence of special circumstances than the depression diagnosis, which did not account for the appellant's knowledge of his actions.

The Court of Appeal ordered an aggregate sentence of 3½ years imprisonment, with a non-parole period of 21 months, reflecting a reduction from the original sentence. This decision considered the special circumstances presented, the gravity of the offences, and the appellant's potential for rehabilitation.

Orders

Orders of the court

Aggregate sentence of 3½ years imprisonment, non-parole period of 21 months.

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

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Medium Neutral Citation:	R v Taupe (No 2) [2013] NSWDC 330
Decision date:	05 April 2013
Before:	Cogswell SC DCJ
Decision:	Aggregate sentence of 3½ years imprisonment, non-parole period of 21 months.
Catchwords:	CRIMINAL LAW - Particular offences - aggravated sexual assault - three assaults against same child victim when victim aged 12 to 15 - victim offender's stepdaughter. Sentence - gravity - digital penetration less serious form of penetration than penile penetration - each offence spontaneous, opportunistic, brief - relevant factors - no criminal record - good prospects of rehabilitation - likelihood of re-offending low - character of less weight - remorse - no acceptance by offender of responsibility for his actions - offender treated by a psychologist for last 3 years - depression given less weight because acted with knowledge - treating psychologist's report given greater weight - report grounded finding of special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW) s 66C. Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53A.
Cases Cited:	Benitez v R [2006] NSWCCA 21; 160 A Crim R 166. Dinsdale v The Queen [2000] HCA 54; 202 CLR 321. Dousha v R [2008] NSWCCA 263. SDS v R [2009] NSWCCA 159. R v Wright (1997) 93 A Crim R 48.
Category:	Sentence
Parties:	Regina (Crown) Peter Taupe (Offender)
Representation:	Counsel: CC Patrick (Crown) B O'Reilly (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Kernaghan and Associates (Offender)
File Number(s):	DC 2011/00018805
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms (which are colours).