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Court of Criminal Appeal 1 December 2014

R v Taane

[2014] NSWCCA 330

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SENTENCES NOT MANIFESTLY INADEQUATE

Citation: R v Taane [2014] NSWCCA 330
Court: Court of Criminal Appeal (NSW)
Date: 1 December 2014
Judge(s): Leeming JA; McCallum J; R A Hulme J

Background

The respondent pleaded guilty to two charges of sexual intercourse with a child aged between 14 and 16 years under s 66C(3) of the Crimes Act 1900 (NSW), with two further such offences taken into account on a Form 1. These offences occurred in April to June 2012, while earlier proceedings relating to the same complainant were still before the courts. The complainant, a distant relative of the respondent, fell pregnant as a result of the continuing relationship and gave birth to the respondent's child in New Zealand in February 2013.

The respondent had previously received suspended sentences for two similar offences against the same complainant, imposed by Armitage DCJ in June 2012. He breached conditions of those good behaviour bonds and was resentenced by Christie ADCJ in the District Court at Campbelltown. Christie ADCJ initially resentenced in an erroneous fashion, prompting the Crown to apply under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to correct that error.

The Crown appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), arguing that the sentences imposed for the second group of offences were manifestly inadequate. The Court dismissed the appeal at the conclusion of Crown submissions on the day of the hearing.

  • Whether the sentences imposed for the s 66C(3) offences were manifestly inadequate.
  • Whether Christie ADCJ adopted the correct approach when dealing with the breach of the suspended sentence good behaviour bonds.
  • Whether the sentencing judge was entitled to consider the earlier offences in assessing the overall sentence under the totality principle.
  • Whether multiple identified errors in the sentencing exercise caused the sentences to miscarry.

Decision

R A Hulme J (with whom Leeming JA and McCallum J agreed) acknowledged the Crown's concerns about the seriousness of the offending. The respondent had continued to have sexual intercourse with the complainant while proceedings for the earlier offences were on foot, in breach of an apprehended violence order and in full knowledge of the illegality of his conduct. The pre-sentence psychological report prepared for the first sentencing was effectively rendered worthless because the respondent had concealed the continuation of his offending from the psychologist.

The Court identified several errors made by Christie ADCJ: the incorrect initial approach to dealing with the breach of the suspended sentence bonds, a discount of 20 per cent applied for early guilty pleas without explanation when 25 per cent had effectively been conceded, repeated misstatement of the complainant's age (referring to her as 12 or 13 rather than between 14 years 7 months and 14 years 10 months), and an incorrect assumption about what the respondent had failed to disclose before the first sentencing.

Notwithstanding those errors, the Court concluded that the sentences were not manifestly inadequate. A starting point of 4 years 2 months was described as significant in the circumstances, and the overall minimum period of incarceration (accounting for pre-sentence custody) amounted to 2 years 7 months. R A Hulme J observed that the sentences might be characterised as lenient, and acknowledged that reasonable minds might differ on that point. However, they were not so far outside the legitimate range of the sentencing discretion as to warrant appellate intervention.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the existence of multiple sentencing errors does not automatically render sentences manifestly inadequate: the ultimate question remains whether the sentences fell outside the legitimate range of the sentencing discretion.
  • A sentencing judge dealing with a breach of a suspended sentence good behaviour bond must adopt the correct procedural approach; Christie ADCJ's initial departure from that approach was an error, though it was subsequently corrected on the Crown's s 43 application.
  • The totality principle permits a sentencing court to have regard to earlier offences when calibrating an overall sentence across multiple sets of related offending.
  • Where an offender conceals the continuation of serious offending from a psychologist retained to prepare a pre-sentence report, the opinions expressed in that report may be substantially worthless as a guide to risk or remorse.
  • Failing to provide a stated reason for applying a lesser guilty plea discount than the one effectively conceded by both parties constitutes an identifiable error in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(1) and s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3; s 43
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Child Protection (Offenders Registration) Act 2002 (NSW)

Cases: No specific cases were cited in the judgment text provided.