TAYLOR v R [2017] NZCA 574

TAYLOR v R [2017] NZCA 574 [14 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA608/2016[2017] NZCA 574BETWEEN BRIAN FRANK TAYLORAppellantAND THE QUEENRespondentCA636/2016BETWEEN CINDY MELISSA TAYLORAppellantAND THE QUEENRespondentCA665/2016BETWEEN LUANA ROBERTA TAYLORAppellantAND THE QUEENRespondentHearing: 27 November 2017Court: Kós P, French and Cooper JJCounsel: P T Eastwood for B F TaylorR B Keam for C M TaylorK H Maxwell for L R TaylorK S Grau and M L Wong for RespondentJudgment: 14 December 2017 at 12 noonJUDGMENT OF THE COURTThe appeals against sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Ena Dung, a woman of 76 years, died as the result of the most dreadful neglect.At the time of her death she boarded with her daughter, the appellant Cindy Taylor,and the other appellants, Luana and Brian Taylor.1 Cindy Taylor was directlyresponsible for Ms Dung's care.[2] The circumstances in which Ms Dung died were described in Wylie J'ssentencing notes:2[12] On 16 January 2015, shortly after 9.00pm, a 111 call was made tothe emergency services. [T]he operator [was told] Ms Dung had passedaway. Ambulance officers attended and Ms Dung's body was discovered.[13] The ambulance officers described an extremely strong smell of urineand ammonia when they entered the house which got worse as theyapproached Ms Dung's bedroom. They found Ms Dung lying on a greenplastic sheet, in her own urine and faeces. She was described as looking likea "scarecrow". She had skin tears on her arms. She was emaciated, and nakedfrom the waist down. When a police officer used scissors to remove her top,it was noted her clothing had almost fused to her skin through the open soreson her upper body. She had multiple pressure sores and at least one necroticulcer on the lower part of her body. There was evidence of arthropod activityalong both of her legs.[14] The photographs of Ms Dung's body taken at the time, which wereproduced in evidence at the trial, were harrowing. The police were notifieddue to the state in which the body was found.[15] Later post mortem examination revealed that, at some point, at leastweeks but perhaps months earlier, Ms Dung had suffered 14 fractures to herribs and sternum. The cause of those injuries was not clarified at trial andnone of [the appellants] were charged with causing them. The medicalevidence was that they may have occurred as a result of multiple falls. It was1 Luana and Brian Taylor are a married couple. Cindy Taylor is not a blood relative but at somepoint adopted their surname by deed poll.2 R v Taylor [2016] NZHC 2846.clear that the injuries would have been extremely painful for Ms Dung.They interfered with her breathing. They effectively prevented her frommoving. She needed significant assistance but little or no help was given toher. Rather, she was simply put to bed. She was not provided with pain relief.[16] The evidence at trial suggested Ms Dung's health had declinedsignificantly over the period of 10 – 20 days before she eventually died. Overthis period Ms Dung was incapable of feeding herself, of moving, or ofsupporting herself in any way. She was completely dependent on the care ofothers in the household, in particular from [Cindy] Taylor.[17] At some stage Ms Dung had started to urinate and defecate in her bed.This was not the result of incontinence. Primarily it was because she couldnot move. A green plastic sheet, which had been purchased by [Brian] Taylor,was put beneath her. She continued to urinate and defecate on this plasticsheet, and as a result, her bodily wastes pooled around her. She sufferedchemical burning to her buttocks, pelvis and upper thighs from contact withher own urine and faeces over a prolonged period.[18] Ms Dung had developed multiple pressure sores from not beingrotated or turned. Over the period of some seven to 10 days prior to her death,one of these sores had become a necrotic ulcer. In one place, the ulcerationwas so severe that it had penetrated to the bone. One ulcer had turnedgangrenous.[19] Ms Dung had also developed broncho-pneumonia.[20] Ms Dung at some stage had stopped eating and drinking. Theevidence suggested that she may have gone for a period of some 10 to 15 dayswithout food and for a period of some four to five days without water.Her body weighed only 29 kilograms at the time of her death.[21] Ms Dung was 76 years old. She died of dehydration and malnutrition.Her fractured ribs and sternum were considered to be contributing factorsleading to her death. There was nothing to suggest that Ms Dung was nototherwise in good health. The expert opinion was that she would have livedif she had been provided with sustenance, good nursing care, pain relief, goodskin care, proper hygiene and the like.[3] Cindy Taylor was found guilty of manslaughter by failing to provide Ms Dungwith the necessaries of life.3 She was sentenced to 12 years' imprisonment on thatcharge. She was sentenced also to a further 15 months' imprisonment for dishonestyoffending to be served cumulatively. She had not advised superannuation authoritiesof the deaths of either her uncle or mother, whose accounts continued to receivesuperannuation payments. Cindy Taylor was in possession of EFTPOS cards thatcould be used to access the accounts into which those payments were made. Shewithdrew some $36,891. The offending concerning the uncle began approximately3 Crimes Act 1961, s 150A, 151, 160(b), 171 and 177.18 months before the manslaughter offending. This further sentence is not challengedon appeal.[4] Luana and Brian Taylor were found guilty of failing to protect a vulnerableadult, knowing that she was at risk of death or grievous bodily harm as a result of theomission of Cindy Taylor to care for her.4 Luana Taylor was sentenced to six yearsand three months' imprisonment, and Brian Taylor to six years' imprisonment.The Judge considered that Luana Taylor was more culpable because she was thecontrolling influence in the house and because she attempted to conceal the offendingin a phone call to a registered nurse on the Ministry of Health's Healthline service on15 January 2015, the day before the call to emergency services was made.[5] All defendants appeal their sentences. Brian Taylor had also advanced aconviction appeal, but abandoned it on the morning of the appeal hearing.5Cindy Taylor's appeal[6] Cindy Taylor had direct day-to-day responsibility for her mother. Ms Dung atsome point largely withdrew from the world and the only contact she had for manymonths prior to her death was with the appellants. Cindy Taylor worked in Aucklandfor a carpark company. She worked long hours. She looked after her mother whenshe got home. She cooked and cleaned for her, and for Luana and Brian Taylor. Atsome point she effectively elected to discontinue looking after her mother.Manslaughter by neglect — starting point in this case[7] The Judge held that Cindy Taylor's culpability was "very high".6 He said,"your offending is a serious example of its kind, warranting a high starting point".7Her gross neglect and breach of accepted standards of human decency had resulted inher mother's death. The Judge identified six aggravating features. First, Ms Dung's4 Crimes Act 1961, s 195A.5 See [34] of this judgment.6 R v Taylor, above n 2, at [72].7 At [72].vulnerability. That resulted from the appellants' neglect, because Ms Dung wasotherwise in good health. As the Judge put it:8Gradually she became more and more vulnerable as her conditiondeteriorated, not because she was suffering from poor health, but because youwere failing to look after her properly. Ultimately she had no means of helpingherself, or even of obtaining help from others. She was bedridden. She couldnot move. She was in significant pain. Her survival became entirelydependent on those in the household and in particular, on you, [Cindy] Taylor.[8] Secondly, gross breach of trust.9 Thirdly, the extent of harm suffered by thevictim, which could not have been more serious. As the Judge put it, "it is difficult toimagine a death in worse or more degrading circumstances."10 Fourthly, the crueltyand callousness of the offending that included the fact that Ms Dung had fractured 14of her ribs and her sternum, and would have been in severe pain for some weeks priorto her death.11 Despite Cindy Taylor knowing that her mother was in extreme pain,she neither sought medical assistance nor offered her any form of pain relief. Ms Dungdid not suffer from dementia; she was simply immobile. Despite that, she was left tourinate and defecate in her own bed, which must have caused her significant shameand anxiety. Incontinence pads could have been obtained, but were not. The Judgesaid: 12[i]n my view Ms Dung's basic human dignity was ignored. [Cindy] Tayloryour neglect and failure to protect your mother was cruel and callous in theextreme.[9] Fifthly, the extent of neglect, which the Judge described as occurring over a"prolonged period, at least two weeks, but probably longer".13 Sixthly, there was theimportant fact that Cindy Taylor was functioning fully in her own life, and was notincapable of looking after her mother.14 Cindy Taylor was intelligent, holding downemployment, and had accepted extra working hours at the very time her mother'scondition was getting worse.8 At [73(a)].9 At [73(b)].10 At [73(c)].11 At [73(d)].12 At [73(d)(iv)].13 At [73(e)].14 At [73(f)].[10] In sentencing Cindy Taylor, the Judge noted the absence of a directly relevantNew Zealand precedent. He did however consider a number of overseas cases, towhich we will refer again later.15 In one of those cases it was submitted that thesentencing range for manslaughter by neglect in Canada was five to eight years'imprisonment, whereas in England it was higher at nine to 15 years.16 Wylie J foundmost assistance from three New Zealand cases — R v Filimoehala, R v Harris andR v Kuka — in which relatives failed to intervene after the assault of a child (or, in onecase, an adult mentally-ill relative) who had been seriously assaulted by other familymembers, and starting points between eight and 10 years' imprisonment wereapplied.17 We discuss these authorities later in this judgment at [18]–[20].[11] The Judge considered the culpability of Cindy Taylor to be greater in this casebecause she was directly responsible for her mother's death, unlike the offenders inthose three cases. A starting point of 12 years' imprisonment was appropriate giventhe gross neglect and high level of culpability. It was, the Judge said "a very seriousexample of this kind, and it warrants a strong deterrent sentence".18[12] Mr Keam before this Court submitted the 12-year starting point was manifestlyexcessive and that a starting point of eight years' imprisonment would have beenappropriate. He submitted cases involving the neglect of young or disabled childrenresulting in death should be viewed cautiously. There was, he submitted, a significantdegree of difference in the carer vulnerability between an elderly adult, able to makedecisions for themselves at some stage, compared with young or disabled childrenwho were never in that position. He also submitted that the cases referred to earlier— R v Filimoehala, R v Harris and R v Kuka — involved serious assault by thirdparties and that placed those cases in a significantly more serious class than the presentcase of neglect.[13] Mr Keam placed particular reliance on a Canadian decision, R v Noseworthy.19In that case, a first instance decision of a trial judge in the Ontario Superior Court of15 See [13], [17] and [21] of this judgment.16 R v Taylor, above n 2, at [77].17 R v Filimoehala CA367/99, 16 December 1999; R v Harris HC Wellington CRI-2004-078-1816,26 August 2005; and R v Kuka [2009] NZCA 572.18 R v Taylor, above n 2, at [82].19 R v Noseworthy (2007) Carswell Ont 9604 (ONSC).Justice, an adult son had failed to care for (and had assaulted) his elderly mother whosuffered from dementia and incontinence for a period of nine months prior to her death.She lived in "filth and deplorable personal hygiene".20 The Judge said it was "the mosthorrific and unimaginable record of abuse and neglect that I have experienced as atrial judge".21 The neglect (and assaults) contributed to her death by exacerbating herexisting heart disease, in particular by starvation. A sentence of seven years'imprisonment was imposed in that case.[14] We do not consider the starting point here was manifestly excessive for thecrime concerned. We make four points.[15] First, we do not accept that a distinction should necessarily be drawn betweencases involving vulnerable elderly persons and vulnerable children. Section 195Adraws no such distinction. A vulnerable adult is defined in the Crimes Act as a person"unable, by reason of detention, age, sickness, mental impairment, or any other cause,to withdraw himself or herself from the care or charge of another person".22 Ms Dungwas such a person. It could not be suggested that she had consented to the neglectfulcare which resulted in her own death. She was elderly, immobile, in serious pain andcut off from any external assistance beyond the appellants.[16] Secondly, we do not find the decisions of courts in other jurisdictions of greatassistance. Sentencing regimes in other countries are prone to differ from those inNew Zealand. Each country has its own scheme, defined by a sentencing council,series of decisions or both, from which a broad and consistent sentencing schemeemerges. But that consistency tends to be national rather than international.23[17] The case particularly relied on by Mr Keam was the Canadian decision inR v Noseworthy. The sentence of seven years' imprisonment was an end point, not thestarting point. There are some distinguishing aspects of that case. Mr Noseworthypleaded guilty at once. He was given credit for good character. He exhibited remorse.20 At [6].21 At [3].22 Section 2(1), definition of "vulnerable adult".23 See for example R v Taueki [2005] 3 NZLR 372 (CA) at [18]; and R v AM [2010] NZCA 114,[2010] 2 NZLR 750 at [31].It was apparent that he was himself a somewhat challenged and reclusive individual.All of these considerations might together have justified discount of 40 per cent orthereabouts, so that the starting point was effectively in the region of 11 years andeight months' imprisonment. To the extent R v Noseworthy is relevant, it assists theCrown more than it does Cindy Taylor.[18] Thirdly, this case involves significantly greater culpability than in R v Kuka,R v Harris and R v Hamer — the latter being another case Wylie J relied upon in hissentencing decision.24 Those cases all involved death as a direct consequence ofexternal events (family member assaults or misadventure) and as an indirectconsequence of the offender simply standing by and failing to obtain medical care forthe victim. In this case Ms Dung was an otherwise healthy woman. Her death wasdirectly due to the neglect of Cindy Taylor.[19] In R v Kuka, one of the cases involving Nia Glassie, the appellant was Nia'smother. She was a bystander to protracted violence effected on her small daughter byother family members as a result of which Nia died. The starting point adopted by theJudge was nine and a half years' imprisonment, upheld on appeal.25 In R v Harris, aHigh Court decision, a mother failed to intervene when her seven-month-old child wasassaulted by her partner over several weeks. In the last three days of the baby's life,in particular, the mother knew the child would die if she failed to act. But she did failto act. An eight-to-10-year starting point was considered appropriate by thetrial judge.26 In R v Hamer the appellant was a methadone user and qualified nursewho was aware that the victim had overdosed on methadone. Despite that he didnothing and did not call the ambulance for 17 and a half hours. He knew that thelonger he waited the more likely it was that the victim would die. A starting point of10 years' imprisonment was adopted.27 This Court said that sentence was near the topof the available range. We, however, regard the aggravating circumstances in this caseas significantly greater than those in R v Hamer, calling for a substantially greatersentence.24 R v Taylor, above n 2, at [81] citing R v Hamer [2005] 2 NZLR 81 (CA).25 R v Kuka, above n 17.26 R v Harris, above n 17, at [19].27 R v Hamer, above n 24, at [69].[20] R v Filimoehala was somewhat different to those three cases. The offendingwas described by this Court as "prolonged brutal and callous behaviour by theappellants towards a defenceless mentally-ill young woman who had come under thecare of Mr and Mrs Filimoehala and was living in their home".28 A combination ofinjury (as a result of assaults) and debilitation (including untreated peritonitis) causedthe death of the victim. Mrs Filimoehala received a sentence of 13 years'imprisonment for manslaughter by unlawful act (assaults) and Mr Filimoehalareceived a sentence of 10 years' imprisonment for manslaughter for omitting todischarge their legal duty to provide the victim with medical care. Those sentenceswere upheld by this Court. It follows, in our view, that where the defendant is herselfthe direct cause of the death of the victim, rather than a third party with a legal duty tointervene who fails to respond to a situation caused by others, a starting pointsignificantly in excess of nine to 10 years' imprisonment is likely to be required.[21] Fourthly, we accept that where manslaughter arises from a combination ofunlawful assault as well as neglect that will in principle command a greater sentencethan death caused by neglect alone. The sentence given to Mrs Filimoehalademonstrates that.29 The fact of assault is an additional aggravating factor in themanslaughter sentencing exercise. But the point cannot be taken too far. As theEngland Court of Appeal said in R v Watts:30[counsel for the appellant] accepts that cases dealing with manslaughter byprolonged physical assault can attract sentences of up to ten years'imprisonment. He sought to draw a distinction between violence and whathappened in this case. We find it difficult to make any such distinction. Theprolonged history of starvation, dehydration and cruel neglect are appalling.It is difficult to think of a more serious case of manslaughter by neglect thanthis one.[22] The same approach is appropriate in the present case. The abhorrent conditionsin which Ms Dung was kept without pain relief, medical care or the most basicsanitation are comparable to physical assaults. This was as bad a case of sheer neglect28 R v Filimoehala, above n 17, at [5].29 See also R v Witika [1993] 2 NZLR 424 (CA) where sentences of 16 years' imprisonment wereupheld.30 R v Watts [2001] EWCA Crim 1427, [2002] 1 Cr App R (S) 56 at [34]. In that case a mother witha severe personality disorder had utterly neglected her nine-month-old son, who then died ofsevere malnutrition and dehydration. A life sentence was reduced on appeal to ten years'imprisonment. It is particularly relevant that the appellant there had entered a plea of guilty.causing death as could be imagined. A starting point of 12 years' imprisonment waswithin the range available to the Judge, albeit at the upper end of that range.Good-character discount[23] The Judge noted that Cindy Taylor had no previous convictions and that herrisk of reoffending was low.31 He said that normally she would receive some limitedcredit for her previous good character. But in this case he did not give such credit.He said:32However here you breached a relationship of trust, and in such circumstances,a good character discount is not easy to justify. I also note that you wereinvolved in dishonesty offending in relation to your uncle's superannuationpayments at the time of your offending against your mother. In my view, agood character discount is not justified in your case, and I decline to reduceyour sentence to allow for it.As a result, Cindy Taylor received no discount at all (the Judge having declined adiscount for remorse — a point not contested on appeal). Mr Keam submitted that itwas unduly harsh to give no credit for Cindy Taylor's previous good character.The offending (including the dishonesty offending) occurred only after she moved inwith the other appellants, at their request. Prior to that there was no indication ofanything other than good character. A discount of up to 10 per cent, Mr Keamsubmitted, would have been in the interests of justice in the circumstances.[24] Section 9(2)(g) of the Sentencing Act 2002 makes any evidence of thedefendant's previous good character a mandatory sentencing consideration, by way ofmitigation. The essential rationale for a good character discount is a dual one. First,a defendant without prior convictions (and otherwise generally of good character)deserves some leniency for an offence that represents an isolated lapse from grace.Indeed, that singular fall is a punishment in itself.33 Secondly, a greater capacity forrehabilitation (and reduced probability of reoffending) may be inferred from goodcharacter (positive community engagement and the absence of prior convictions). Thepresence of remorse buttresses both considerations, although it attracts a discrete31 R v Taylor, above n 2, at [85].32 At [85] (footnote omitted).33 R v Findlay [2007] NZCA 553 at [89]–[91].discount. Conversely the absence of remorse impairs the prospect of a good characterdiscount, for obvious reasons.34 Professor Andrew Ashworth discussed thephilosophical foundation of the discount or credit in his book Sentencing and CriminalJustice:35Ordinary people do have occasional aberrations. Human weakness is not sounusual, especially in a context of peer pressure or multiple socialdisadvantages. The sentence system should recognize not only this, but alsothe capacity of people to respond to formal censure, and to ensure that theirfuture conduct conforms to the law. This is embodied in the idea of givingsomeone a 'second chance'. So the justification for the discount for firstoffenders rests partly on recognition of human fallibility, and partly on respectfor people's ability to respond to the censure expressed in the sentence. Thejustification for the gradual loss of that mitigation on second and thirdconvictions is that the 'second chance' has been given and not taken [25] An absence of previous convictions is, of itself, evidence of prior goodcharacter and worthy of some recognition.36 Conversely the existence of priorconvictions generally excludes application of the discount: the offending is not anisolated lapse and the prospects of rehabilitation are diminished by contraryexperience. The absence of intervening offending after long distant convictions mayin some cases restore a defendant to a reasonable expectation of a good characterdiscount.37[26] Where an offender accumulates a series of offences, for which they are to besentenced, the position is more difficult. If the defendant had no prior convictions, itmight be thought the first offence in time may deserve some discount. But thesubsequent accumulation of offending gives the lie to the propositions that the offenderis generally of good character, and the first offence is an isolated fall from grace.It may also call in question the reality of prospective rehabilitation. A judge is entitledin those circumstances to refuse to give a good character discount.34 At [101].35 Andrew Ashworth Sentencing and Criminal Justice (6th ed, Cambridge University Press,Cambridge, 2015) at 211–212.36 See for example R v Hockley [2009] NZCA 74 at [30]; Manawaiti v R [2013] NZCA 88 at [13]and [20]; and Quinlan v R [2013] NZCA 634 at [37].37 See for example R v Williams CA190/90, 16 October 1990 at 3: this Court stated that therespondent's previous convictions were "so long ago that they must be disregarded". And inManawaiti v R the appellant had two traffic related convictions, but these did not appear to intrudeupon the Court's assessment of his character: Manawaiti v R, above n 36, at [13] and [37].[27] In R v Zhang the respondent was convicted and sentenced for 39 chargesranging from kidnapping, demanding with menaces, aggravated robbery, threating tokill, assault with a weapon and indecent assault, all the offending being against foreignstudents in New Zealand. The charges arose from four discrete events. Therespondent had no previous convictions but this Court declined to give a discount:38This was not the more common case of a first offender being sentenced for asingle offence. Any concession to be gained by reason of a previouslyunblemished record should have been and was dispelled by the prolonged andpremediated nature of the offending in this case.[28] In Edri v R the appellant had been convicted of one charge each of rape andindecent assault. 39 At the time of offending he had no previous convictions. But, inthe four years between that offending and sentence he accumulated four convictionsfor unrelated offences of driving while his licence was suspended, causing loss bydeception and taking or using a document for pecuniary advantage. The sentencingJudge declined an additional allowance for good character. On appeal, this Courtnoted the rationale, set out above at [24], that a good character discount reflects thepunishment involved in falling from grace and the recognition of a greater potentialfor rehabilitation. While noting the appellant's other offending was unrelated, thisCourt said it would be "artificial and wrong to disregard the subsequent offending"when assessing good character.40 No discount was therefore warranted. But adifferent approach was taken in Hinton v R.41 There the defendant was sentenced tosix years' imprisonment on five historic charges of indecent assault and one of sexualviolation by unlawful sexual connection. Those matters occurred 11 or 12 years apart.A discount of one year was given on appeal for previous good character up until thetime of the first offence. No such discount was given in respect of the later indecentassaults, despite the defendant having no prior convictions when he committed them.[29] The approaches taken in these cases are not necessarily easy to reconcile. InHinton v R the Court viewed "good character" as applicable up until the commissionof the first offence, despite the commission of the later offences. In Edri v R, wherethe defendant accumulated later unrelated offences, those trumped good character38 R v Zhang (2004) 20 CRNZ 915 (CA) at [26] approved in R v Shone [2009] NZCA 183 at [25].39 Edri v R [2013] NZCA 264.40 At [33].41 Hinton v R [2016] NZCA 269 at [102].even in relation to the original offending. We consider there is room for somesentencing discretion in the decision whether to still extend a good character discountfor the first offence in the face of subsequently accumulated offending. There will besome cases, perhaps rare cases, where that is appropriate. For instance, where the lateroffending is very minor in nature or where it is distant in time from the first offence.We do not suggest this is a complete catalogue of exception.[30] The application of these principles to the sentencing of Cindy Taylor createsno difficulty, however. In our view the Judge was right to deny Cindy Taylor adiscount for good character on the manslaughter charge. First, for the 18 months priorto that offending she had been committing serial dishonesty offending in relation toher uncle's superannuation payments. Secondly, the manslaughter of her mother wasfollowed by renewed dishonesty offending in continuing to claim her mother'ssuperannuation payments following her death. By no means could a discount for goodcharacter reflect a realistic and justifiable perception that here was an isolated lapse ingrace by a person of otherwise good character who had good prospects ofrehabilitation.[31] It is conceivable that the sentencing of Cindy Taylor on the first dishonestyoffending, involving her uncle's superannuation, might have attracted a discount. Butthat is irrelevant for the present purposes. First, there is no appeal in relation to thatsentence. Secondly, it is almost certainly excluded by the subsequent seriousoffending involving manslaughter. Thirdly, it would involve a credit of such temporalinsignificance as to amount to mere tinkering with the sentence.Conclusion[32] We are not persuaded the sentence of Cindy Taylor was manifestly excessive.Luana and Brian Taylor's appeals[33] Luana Taylor was, the Judge found, the controlling influence in the house.42For instance, Cindy Taylor paid all her wages to Luana Taylor along with the ill-gotten42 R v Taylor, above n 2, at [111(d)(iv)].superannuation payments for the uncle and Ms Dung. That, along with the attempt byLuana Taylor to conceal the offending, was the reason the Judge cited for disparity insentencing between Luana Taylor and her husband Brian Taylor.[34] Mr Taylor initially appealed his conviction also. The morning of the hearinghe formally abandoned that appeal. It had been premised in an allegation that histrial counsel had not advised him to give evidence (and he had been led to believecounsel could in effect give the evidence to the Court). Those allegations werecomprehensively refuted by counsel in her affidavit in reply. It also exhibited a writtenletter of instruction recording that counsel had advised him to give evidence.The conviction appeal, sensibly, was abandoned. Rather ironically, counsel forMr Taylor on the appeal sought to rely on trial counsel's affidavit in advancing hissentence appeal.43Duration of offending[35] Ms Maxwell, who appeared for Luana Taylor, submitted that the Judge haderred in describing the offending as occurring over a period of months and that therewas a prolonged breach. What the Judge said was:44I also reject the submission made on your behalf [Luana] Taylor that theduration of offending was only over a 10-14 day period. The medical evidencewas that Ms Dung's weight went down over a period of months.The Judge described the offending as a "prolonged breach of duty".45[36] We accept that the Judge may have erred in placing reliance on Ms Dung'sweight loss as indicative of neglect for more than 10–14 days. The last weightmeasurement of Ms Dung prior to her death was six years earlier, when she was52.2 kilograms. She weighed only 29 kilograms when she died. That is a differenceof 23.2 kilograms. The evidence of the pathologist was that if she had stopped eatingshe could have lost 15 kilograms in just two weeks. However, we do not think thatthis makes a material difference to the Judge's reasoning in sentencing any of the43 It referred to the likelihood of Mr Taylor electing not to give evidence in accordance with thewishes of his wife.44 R v Taylor, above n 2, at [110].45 At [115].appellants. It was apparent from the circumstances of the scene of the crime that therehad been prolonged and almost complete neglect of Ms Dung for a period of at leasttwo weeks, and probably more. For instance, the plastic tarpaulin obtained to protectthe mattress on Ms Dung's bed had been acquired by Brian Taylor in December 2014,and the mattress was stained on both sides. Even if the offending was limited to 10–14 days duration, that is properly described as prolonged. In that respect, for instance,it is distinguishable from the mere 17 and a half hours' neglect leading to death inR v Hamer.46[37] There is nothing, therefore, in this point.Starting point[38] The Judge described the offending by Luana and Brian Taylor as "egregious".47He held that they had deliberately closed their eyes to what was occurring.48 It wasinherent in the offence for which they were convicted that they were aware thatMs Dung was at risk of death. They turned a blind eye to that, and she died. That wasa major aggravating feature of their offending, a point Luana and Brian Taylor do notcontest on appeal. Despite the arrangement made that Cindy Taylor care for hermother, they must have known that Ms Dung needed care and assistance. They musthave been able to smell the stench coming from her room and Brian Taylor had boughtair fresheners and insecticides for Cindy Taylor to use. As the Judge said, that clearlysuggested they were aware of the smell and insect activity in the room.49 Luana andBrian Taylor, the Judge found, were aware that Ms Dung was not eating properly.Brian Taylor bought the green plastic tarpaulin some weeks before Ms Dung's deathto save the mattress from staining. As the Judge put it:[t]here were very many indicators of risk to Ms Dung. You ignored all ofthem. You both turned a blind eye to Ms Dung's deteriorating condition andsuffering.5046 R v Hamer, above n 24.47 R v Taylor, above n 2, at [110].48 At [110].49 At [111].50 At [111].[39] There was also the extent of their indifference. Neither had an excuse for notstepping in. The Judge expressed doubt about the alleged disability of Luana Taylorand found that was not an excuse in any event. There was nothing to stop them fromsummoning medical assistance. They were not financially constrained: Luana Taylorhad secured the payment to herself of all of Cindy Taylor's wages and any othermonies Cindy Taylor received.[40] Counsel for Luana and Brian Taylor placed particular reliance on theHigh Court decision in Heppell v R, a case under s 195 where the defendants had failedto care for the elderly mother of one of them.51 That also involved an elderly woman(then 91 years of age) living in appalling neglect with an adult child. There are anumber of points of distinction with the present case, however, most notably that thevictim there did not die as a result of her mistreatment. In addition, the victim was notmalnourished and it would appear implicit in the finding that the offenders were notthemselves fully functioning adults. The Judge adopted a starting point of four years'imprisonment, which was further reduced for remorse, previous good character andearly guilty pleas. Perhaps surprisingly the Heppells appealed to the High Court.Their appeal was dismissed by Gilbert J. There was no Crown appeal against sentence.[41] In our view the present case is substantially worse than Heppell v R. Theprimary distinguishing feature, as we have noted, is the death of the victim as a directresult of the neglect which Luana and Brian Taylor were aware of and did nothing toavert. This is not, it may be noted, a case where a family member is aware of sufferingbut is unable or reluctant to intervene and gain assistance because of theovershadowing power of another member of the family.[42] In our view a starting point of six years (as against a maximum of 10) is withinrange and not manifestly excessive.[43] In the case of Luana Taylor, we agree that the effort to conceal the offendingand her effective position of authority within the household justify an increase in thatsentencing starting point to six and a half years. Ms Maxwell did not argue otherwise.51 Heppell v R [2017] NZHC 64.[44] Counsel for Brian Taylor submitted that the Judge overstated his client'sculpability. Luana Taylor was the dominant personality in the household. Brian Taylorwas not Ms Dung's primary caregiver, and was often absent from the house.[45] We do not accept that submission. The Judge saw and heard the evidence attrial. The same considerations that apply to Luana Taylor apply to Brian Taylor. Hewas evidently able-bodied and had associated advantages therewith. He wasresponsible for the acquisition of air fresheners and insecticides. He acquired thegreen plastic tarpaulin to protect the mattress. Also, the Judge noted, he did nothingto summon assistance for Ms Dung, was not financially constrained from assisting andsimply deliberately closed his eyes to what was occurring. Given Luana Taylor's moredominant position and dishonesty, the distinction and culpability was reflected in thesix-month difference between starting points. That was, in our view, entirelyappropriate. The Judge did not overstate Brian Taylor's culpability. The sentence ofsix years' imprisonment was available and appropriate.Conclusion[46] It follows that Luana's and Brian Taylor's sentence appeals fail also. Theirsentences were not manifestly excessive.Result[47] The appeals against sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent