R v Taupe

REMARKS ON SENTENCE 1I am sentencing Peter Taupe for three offences of aggravated sexual intercourse against a child. 2Mr 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. 3The 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. 4The first two offences were offences against s 66C(2) of the Crimes Act 1900 (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. 5The third offence committed in 2004 was an offence against s 66C(4) of the same Act. Parliament had fixed at the relevant time a maximum of 12 years imprisonment to that offence. 6It is important for a judge in sentencing an offender to say something about what the offender did which amounted to the crime so that some assessment can be made of how serious an example of that crime was committed by the offender. I set out in a judgment delivered on 19 December 2012 the circumstances of each of the crimes. I will make brief reference to the three offences that I am sentencing Mr Taupe for. 7The first offence occurred between 1 December and 31 December 2000. Abbie White was only 12 years of age at the time. The age range for the offence committed against her was by reference to children aged between 10 and 16 years. Abbie White, therefore, was closer to the youngest age in that range rather than the oldest age in that range. Abbie White jumped into bed with Mr Taupe who was living with Abbie White's mother at the time. Peter Taupe started to touch her and then, as Abbie White said, he "went under my underpants and would start to touch my vagina and penetrate - part the labia and penetrate me with his finger". In fact Mr Taupe was not living with her mother at that stage but had come to visit. 8As I said in my judgment, I was satisfied beyond reasonable doubt that Mr Taupe had committed the crime by digitally penetrating her when she was 12 years of age. She regarded him as her father and she was under his authority. 9The next offence occurred between [withheld] 2001. Abbie White's mother and Mr Taupe were still living separately at that stage. Mr Taupe came over for the occasion of Abbie White's birthday. She turned 13 on [withheld]. She said, and I accepted beyond reasonable doubt, that Mr Taupe "touched my vaginal area and he parted the labia and penetrated me with his finger". She recalled that on that occasion he was "a bit more forceful again, or aggressive, and he sort of positioned or adjusted my legs, I guess you could say". He penetrated her vagina with one of his fingers. 10Again I accepted beyond reasonable doubt that Mr Taupe had digitally penetrated her vagina and that she was either 12 or 13 years of age and she was under his authority at the time. 11The last offence occurred between 1 January and 3 May 2004. Abbie White was aged 15. That was the offence committed against s 66C(4) of the Crimes Act. Being aged 15, she was right in the middle of the range of ages for that offence which is between 14 and 16 years. Mr Taupe "progressed to put his hands over my vaginal area under my underwear, parted the labia, and penetrated me with his fingers in the vaginal area. This time he did insert a second finger". Ms White said that it was uncomfortable and painful. She had been wearing underwear and she recalled that Peter Taupe "removed them down to my ankles, down the lower half of my legs". 12Again I was satisfied beyond reasonable doubt that he digitally penetrated her on that occasion and that she was under his authority. I convicted him of the three offences that I am now sentencing him for. 13I have been assisted, as I was at the trial, by submissions by Mr CC Patrick of counsel, who appeared as Crown Prosecutor, and by Ms B O'Reilly of counsel, who appeared for Mr Taupe. 14In his written submissions on sentence Mr Patrick acknowledged that when compared to other kinds of penetration, digital penetration can be regarded as a less serious form of penetration than penile penetration. That is not to say that digital penetration is in any way excusable. It is simply to say that in comparing a criminal who digitally penetrates a victim with another criminal who has full sexual intercourse with the same victim and perhaps renders her pregnant, the second is obviously a far more serious example of the same offence. The age of the victim is a relevant factor and I have already referred to Abbie White's ages at the relevant time. 15Ms O'Reilly tendered some character references given by people for her client. All of those people were appropriately aware of the offences that he had been found guilty of. They still support Mr Taupe and acknowledge that there was no excuse for his behaviour. They point out otherwise very favourable factors about his character, such as him being hardworking, honest and diligent and being prepared to get support and help. Some of the references are from people who have known him for a very long time. 16I also accept a submission by Mr Patrick that the fact that an offender is of good character is of less significance in child sexual assault cases. Mr Patrick referred to what Fullerton J had said in Dousha v R [2008] NSWCCA 263. At [49] her Honour said - "In the context of offending constituted by a course of repeat sexual offending against young children, a claim for good character does not entitle an offender to the leniency that might otherwise be available". 17This is a case where I am sentencing Mr Taupe for three counts of sexual assaults against the same child victim. The fact that there was other conduct that he was charged with and which I acquitted him of, does not, of course, make any unfavourable impact upon the sentence which I will impose. The sentence which I will impose is in respect of only the offences that I convicted him of. 18Mr Patrick fairly acknowledged that the offences were examples of crimes in the lower range of seriousness for this kind of offence committed in this way. Ms O'Reilly embraced that submission pointing out that there were no threats involved and that each of the incidents was relatively brief in time. All of the incidents occurred within a home to which Mr Taupe was entitled access and there was no attempt by him to isolate her or to take her away. 19I accept that each of the offences was spontaneous and opportunistic. I also accept that there were no aggravating features within s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I do not regard any delay between the commission of the offences and Mr Taupe ultimately coming forward or being interviewed by the police as relevant to the sentence. Mr Taupe is a man who comes before the Court without any prior criminal offences and I take that into account as well. 20Ms O'Reilly tendered a report from a psychologist, Mr Alan Crockford. He has been seeing Mr Taupe as a patient since the middle of 2010. That is an unusual feature and one that is favourable to Mr Taupe, in my opinion. Mr Crockford lists a large number of occasions when he has consulted Mr Taupe who was obviously wanting to deal with the factors in his life which led him to committing these very serious offences. 21Mr Crockford referred to Mr Taupe's background and personal history and concluded - "The main factors that triggered the aberrant and compulsive sexual behaviour was an extremely distressed marital relationship, the lack of emotional attachment with either of his parents as a child, and his unique history of only ever experiencing true intimacy in childhood with his female cousins when they played with him but also sexually molested him at 4 years of age and the intensely intimate sexual discussion and sexual experiences with a young adult female at 12 or 13 years of age." I add that that female was herself some 19 years of age and it was Mr Taupe who was aged 12 or 13. Mr Crockford diagnosed a condition of depression and concluded that "depression and Mr Taupe's personality vulnerabilities are both closely related to Mr Taupe's offending behaviour and are mental health problems that would be amenable to the treatment that would be provided in a sexual offenders program." To Mr Taupe's credit, Mr Crockford expresses the belief that he "has an excellent attitude to treatment. I am also of the view that Mr Taupe is extremely unlikely to reoffend." 22The report prompted submissions from both counsel. Mr Patrick drew my attention to a judgment of Simpson J on behalf of the Court of Criminal Appeal in Benitez v R [2006] NSWCCA 21; 160 A Crim R 166. Her Honour, in a judgment dealing with the relevance of the mental health condition of depression in sentencing, said at [41] that "the influence of the depression must remain in perspective." Her Honour referred to the judgment of the then Chief Judge at Common Law, Hunt J, in R v Wright (1997) 93 A Crim R 48 where his Honour said - "But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation [in sentence] need not be great." 23Depression, according to Mr Crockford, was related to Mr Taupe's criminal behaviour and not necessarily the direct cause. But finding in Mr Taupe's favour that it was closely related I would, nevertheless, adopt what Simpson J said at [42] that Mr Taupe "although acting out of depression, also acted with knowledge of what he was doing and of the gravity of his actions". 24There is a question whether the report might provide a basis for a finding by me of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. I am not satisfied on the balance of probabilities that the report can provide a basis for such a finding. 25As Mr Patrick argued, the statute permits me to take into account remorse "only if" Mr Taupe (in this case) "has provided evidence that he...has accepted responsibility for his...actions". As Mr Patrick argued and I accept, Mr Taupe has always challenged the assertion by Abbie White that he digitally penetrated her. I do not find that he has accepted responsibility for his actions in doing that. Nevertheless, I accept Ms O'Reilly's submission that the report can be taken into account in Mr Taupe's favour for the subjective material which it contains. 26I give it more weight than a report prepared after one or two consultations by a psychologist qualified for the purpose of the sentencing proceedings to give evidence. This is a report by a treating psychologist who has treated Mr Taupe as a patient for nearly three years. I accept the psychologist's conclusion that Mr Taupe has an excellent attitude to his treatment and is extremely unlikely to re-offend. I regard his prospects of rehabilitation as good and his likelihood of re-offending as very low. 27Mr Taupe of course pleaded not guilty, as he was entitled to do. That has no unfavourable impact upon the sentence which I will impose but it does mean that he does not receive the benefit that a person who has pleaded guilty to crimes would receive as a discount in the sentence. 28I have been referred to the statistics for these kinds of offences kept by the Judicial Commission of New South Wales. As Mr Patrick acknowledges, the database was relatively small. I bear in mind that these are what the law regards as historical sexual assaults. The legislation which was relevant at the time that these assaults were committed has been repealed. I must sentence under the legislation as it was in place at the time and I must try to bear in mind the sentencing pattern that may have been applicable at the time. 29Mr Patrick referred me to the relevant authorities. I should add that it is clear that Mr Taupe is generally remorseful and contrite for his behaviour but I cannot find, as I say on the balance of probabilities, remorse in the terms of the Crimes (Sentencing Procedure) Act. 30I have been helpfully referred to some cases where decisions were delivered by the Court of Criminal Appeal to do with sentences of the kind which I am about to impose. In particular I found helpful the decision of the Court in SDS v R [2009] NSWCCA 159 and some of the cases referred to by Ms O'Reilly in the printout from the Public Defenders' sentence database which became marked for identification 16. 31Ms O'Reilly invited me to consider the possibility of a suspended sentence. When I pointed out at the beginning of this submission that the focus of the submission needed to be on the length of the sentence rather than whether or not I should suspend it, she acknowledged fairly - and it was in my opinion the only position to take - that there is no other appropriate sentence than custody so far as these offences were concerned. However she argued that the penalties, if they fell at 2 years or less, could be by way of suspended sentence. 32She referred to what the High Court had said in Dinsdale [2000] HCA 54; 202 CLR 321 and argued that suspending a sentence is not without precedent and full-time custody for crimes such as these is not an absolute result. That is also demonstrated by the statistics. So far as the question of whether or not to suspend the sentence is concerned, that is a matter which I would turn to - if relevant - once I have fixed the sentence. 33By reference to the cases where other penalties have been imposed for these kinds of offences, and taking into account what happened in this case and also the matters personal to Mr Taupe, I would regard an appropriate sentence for the first offence under s 66C(2), committed between 1 and 31 December 2000, as 2 years imprisonment. 34I would regard an appropriate sentence for the second offence under the same section, committed between [withheld] 2001, as also 2 years imprisonment. 35I would partially accumulate those two sentences by commencing the second sentence 3 months after the commencement of the first sentence. I would regard an appropriate sentence for the third offence against s 66C(4) of the Crimes Act, committed between 1 January and 3 May 2004, as 3 years imprisonment. Once again I would partially accumulate that on the second sentence by 3 months. 36The overall sentence which I would therefore regard as appropriate would be 3½ years imprisonment. In a moment I will fix an aggregate sentence of that term. 37Normally for a sentence of 3 ½ years imprisonment the non-parole period would be about 2 years and 8 months, something over 2 ½ years in prison. But I propose to reduce the non-parole period to one of 21 months, namely 1 year and 9 months. I regard there being special circumstances for making that adjustment to the normal ratio. Those special circumstances are based upon the report of the psychologist. It is clear to me that Mr Taupe has benefited greatly from his psychological treatment and his prospects of rehabilitation are very good. I think that it would be appropriate for him to spend a more extensive period of time in the community so that he can pursue his rehabilitation. Hence I have reduced the non-parole period. 38I will fix an aggregate sentence of 3 ½ years imprisonment with a non-parole period of 21 months. That is fixed under s 53A Crimes (Sentencing Procedure) Act. HIS HONOUR: Mr Taupe, I am going to sentence you now. If you would stand up, please. 39I fix a non-parole period of 21 months to commence today, which is 5 April 2013. It will expire on 4 January 2015. The balance of the term is also 21 months, or 1 year and 9 months. It will commence on 5 January 2015 and expire on 4 October 2016. The overall sentence is 3 years and 6 months commencing today, 5 April 2013, and expiring on 4 October 2016. Have a seat, Mr Taupe. HIS HONOUR: First the mathematics, please. Three years and 6 months commencing today, expiring 4 October 2016, non-parole period after that 1 year 9 months commencing today, expiring 4 January 2015. Take your time. O'REILLY: Yes, we say that's correct. HIS HONOUR: Thanks, Ms O'Reilly. PATRICK: Yes, we agree, your Honour. HIS HONOUR: Mr Patrick and Ms O'Reilly, are there any matters where I may have made an error in which could be corrected under s 43? I am not saying there are but anything - or any factual errors that I made that could be dealt with? Once again I am not saying there are, I am just checking. O'REILLY: No, your Honour. PATRICK: Nothing to raise, your Honour. HIS HONOUR: Mr Taupe, I know you have got other things on your mind but I have to explain this to you. You have received a gaol sentence of 3 ½ years. That is one sentence although there are three offences. I have indicated that I have broken them up and told you what I would have imposed for each one and how I would have staggered them a bit and that the overall result would be 3 ½ years. Normally the non-parole period for 3 ½ year sentence would be more than 2 ½ years, should be some 31/32 months in gaol. I have reduced that to 21 months. So it is half in gaol, subject to what I say in a moment, half out of gaol. That is so that you can pursue your rehabilitation. You are obviously well on the track as far as that is concerned. You go into custody today and you are eligible for parole on 5 January 2015 - 5 January 2015 you are eligible for parole. Whether you get parole is not up to me, it is up to the Parole Authority. They assess your application and they make up their mind and if they release you then you stay still under sentence for the following 1 year and 9 months, you are still under sentence but you are in the community and if you breach your parole they bring you back. Ms O'Reilly or Mr Kernaghan: got your instructions, my associate will send to the prison authorities your report. They have indicated that they find those things very helpful in assessing your classification where you should go. Are these your friends and relatives here in court? OFFENDER: My family. HIS HONOUR: All right, your family. It is up to the Corrective Services officers, not me, but if they want to talk to you for a couple of minutes after I go off the bench that is all right with me. But they are in charge of you now, not me. Good luck.