TAYLOR v R [2022] NZCA 70

TAYLOR v R [2022] NZCA 70 [21 March 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA275/2021[2022] NZCA 70BETWEEN LUCKY MITA JAMES TAYLORAppellantAND THE QUEENRespondentHearing: 15 February 2022Court: Kós P, Peters and Palmer JJCounsel: J D Lucas for AppellantL P Radich for RespondentJudgment: 21 March 2022 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)[1] Mr Lucky Taylor was convicted of 16 charges of sexual and indecent offendingagainst a young person after pleading guilty in the District Court at Manukau.Judge Moala sentenced him to six years and nine months' imprisonment.1 She alsogranted a protection order in favour of the complainant and her child. Mr Taylorappeals against the length of his sentence only.1 R v Taylor [2021] NZDC 6550.What happened?The offending[2] Mr Taylor, aged 43, pleaded guilty to 16 charges. Fifteen of those, includingsix representative charges, were for having sexual connection with a young personunder 16 and one was a representative charge of doing an indecent act on a youngperson under 16.2[3] Mr Taylor has known the complainant since she was around 12 years old,as one of his school students. At the time of the offending he was in his late 30s andshe was 13 to 15. In 2015, the complainant's mother moved to a different town, but thecomplainant wanted to stay at her school. It was arranged that the complainant wouldlive with Mr Taylor and his wife and children. On numerous occasions, at night andin the mornings when his wife was in the shower, Mr Taylor would touch thecomplainant. He put his hands down her pants, touched her vagina area over herclothing, touched her breasts over her clothing, and kissed her on the neck and lips.She often attempted to stop him, but he persisted. She felt weird about it, not knowingwhat was happening, and because Mr Taylor was both her teacher and a father figure.[4] The offending progressed to Mr Taylor regularly inserting his fingers into thecomplainant's vagina at night. In early 2015, in a car, Mr Taylor said what they weredoing was wrong but felt right. He told her to suck his penis. She was scared and saidno but he pushed her head down and grabbed her hair. Not long afterwards, again ina parked car, over her objections, he persuaded her to allow him to lick her vagina andalso inserted his penis in her vagina. It was the first time the complainant had hadsexual intercourse. From then until September 2015, Mr Taylor would often take herin his car and find somewhere for them to have sexual intercourse. On multipleoccasions she slept in his bed when his wife and children were away, and they had sex.In early September 2015, Mr Taylor's wife found out about the relationship and leftfor a week. The complainant slept in Mr Taylor's bed and they had sex almost everynight. Mr Taylor's wife kicked the complainant out of the house. The complainantwent to stay with her mother.2 Crimes Act 1961, s 134(1) and 134(3).[5] In mid-September 2015, Mr Taylor moved to another town. But during the restof 2015 and 2016, he continued to arrange for the sexual relationship to continue.He paid for transport and accommodation for one or the other of them so they couldmeet and have sex. The complainant lied to her mother about where she was.[6] In July 2016, at the age of 14, the complainant found out she was pregnant toMr Taylor. He told her not to tell anyone, but said he was happy about the news.He continued to pay for her travel and accommodation to meet and engage in sexualintercourse. She gave birth in December 2016, at the age of 15.[7] In early 2017, the complainant told Mr Taylor her grandmother was going totell the Police he was the father. He told her he would kill her grandmother andthreatened to get members of his family, who seemed to be in a gang, to kill thecomplainant. He also threatened to kill himself. The complainant told the Police hewas not the father. But in 2018 she told them the truth, which was confirmed by aDNA test. Mr Taylor has not given the complainant any financial support.The complainant[8] In her victim impact statement in March 2021, the complainant said that shesaw Mr Taylor, her teacher, as a father figure. Their relationship changed when hebegan contacting her through Facebook when she was in Year 8. She said he wasgrooming her for some time before anything happened sexually. She said she did notknow what they were doing was wrong. When she became pregnant, she thought theywere going to be a real family; but he told her not to tell anyone and to deny everything.She continued to lie to everyone. She was relieved when the truth came out becauseshe had felt trapped for so long. She became suicidal and cut herself. She said theoffending has badly affected her and that "I feel he has not only stolen my childhoodfrom me but he has changed my life forever". She is now married with other childrenbut believes Mr Taylor's offending has continued to affect her relationships. Her bondwith her mother was broken. She wanted a protection order against Mr Taylor, whichthe District Court granted. She said she will have to carry her sentence with her forthe rest of her life.The offender[9] The pre-sentence report by the Department of Corrections in March 2021stated that Mr Taylor knew what he was doing was wrong but carried on doing it dueto his need for sexual and physical intimacy. Mr Taylor said he has a high sex driveand grew up with male relatives who had sexual contact with underage girls, so he hadaccepted what he was doing was not aberrant or unwanted. The report writerconsidered that Mr Taylor exhibited a high degree of sexual entitlement in sexuallyabusing the complainant within his family home, with his partner present. Mr Taylorhas focused on the effect of the offending on himself and his family rather than on thecomplainant. He did not articulate remorse for her. He was assessed as being at highrisk of further sexual offending. He had no previous convictions.[10] Nine letters of support for Mr Taylor were before the Judge at sentencing,though many of them were written before his offending was known. Mr Taylorcompleted a 14-session programme on stopping violence. After that, Mr Taylor wrotea brief apology to the complainant and a letter to the Court focussing on the difficultiesin his own life.The District Court sentencing[11] In her sentencing remarks on 9 April 2021, the Judge set a starting point forthe offending of nine years' imprisonment for the totality of Mr Taylor's offending.3She had regard to the following aggravating factors:(a) a high level of grooming;(b) planning and premeditation;(c) the complainant's vulnerability and Mr Taylor's huge breach of trustgiven he was her teacher, a father figure and because of their agedifference; and3 R v Taylor, above n 1, at [44].(d) the enduring impact on the complainant including her pregnancy at theage of 14.[12] The Judge was not satisfied there was anything demonstrating real remorse andthat there was the opposite of remorse on Mr Taylor's part.4 She did grant the standard25 per cent discount for Mr Taylor's guilty plea.5 She did not consider a discount forgood character was justified:[47] So the remaining issue, because you are entitled to a 25 per centdiscount, is whether I should give you a discount for previous good characterand having no previous convictions. There is no doubt from the letters that Ihave in front of me, both from your family, people that you have worked with,people that you have been involved in the community with, that you were agood person. There is no doubt in my mind about that. You obviously have alot of skill. Your ability to speak te reo and your involvement in kapa haka,all amazing things. But all of those things are tempered by the length of timethat you were offending against this young woman. This offending takes awayfrom all of that good stuff you did before. I say that because there is almost acallousness in the way that you treated her. I am talking in particular aboutwhen you found out she was pregnant. The threats to her. I just cannotimagine being that age, at 15, and telling someone that I am having their babyand them responding to me in that way. And being alone and having to dealwith it on your own. It is unimaginable. So that long period of time, whereyou were doing this, and you were making her lie. You had such influenceand such control over her. It takes away from all of the good things you didbefore. I am not going to give you a good character discount, because it islimited by what you did to this young woman [13] Mr Taylor was sentenced to imprisonment for six years and nine months.6He appeals the sentence.Submissions[14] Mr Lucas, for Mr Taylor, submits:(a) The starting point was too high because the Judge had too much regardfor the principle that the most serious cases warrant a sentence near themaximum penalty and failed to have regard to other comparable cases.The circumstances here warrant a starting point of around seven and ahalf years' imprisonment.4 At [45]–[46].5 At [47].6 At [48].(b) The Judge was wrong not to give a discount to reflect Mr Taylor's goodwork prior to his offending. He rose out of poverty and took to sports,education, and kapa haka. He was involved with his church andcontributed to his community through his knowledge of Māori culture,te reo and tikanga. The cases where no discount was given usuallyinvolved the offender doing little in the community. Here, the Judgefailed to appreciate the man Mr Taylor was. This failure amounted toa double-counting of the aggravating factors. A 15 per cent discountfor his lack of previous convictions and his previous good character iswarranted in these circumstances.[15] Mr Radich, for the Crown, submits:(a) Mr Taylor's offending is among the most serious of its kind and astarting point near the maximum penalty of 10 years' imprisonment wasrequired. That starting point is also comparable with similar cases.(b) The Judge was correct to refuse to discount Mr Taylor's sentence forhis previous good character. The offending persisted for almosttwo years and he exploited his respected status and mana in order tocommit the offending. The cases on which Mr Lucas relies should bedistinguished.Should Mr Taylor's sentence be reduced?[16] Under s 250 of the Criminal Procedure Act 2011, we must allow the appeal ifsatisfied that there is an error in the sentence imposed and a different sentence shouldbe imposed instead.7 Otherwise, we must dismiss the appeal. It is helpful to examinewhether the sentence is manifestly excessive, and the focus should be on whether theend sentence was within the available range.87 Criminal Procedure Act 2011, s 250((2).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[36].Was the starting point too high?[17] A starting point of three and a half years' imprisonment was adopted inH (CA04/08) v R, on which Mr Lucas relies, and was undisturbed on appeal.9That case involved abuse of trust, a significant age gap between the offender and thecomplainant, penetrative sex on a number of occasions, and significant adverse effectson the complainant.10 But this Court assessed the culpability there as "moderate".11The offending was significantly worse here due to the intensive planning andpre-meditation, vulnerability of the complainant, breach of trust, prolonged period of22 months of offending, and lasting harm to the complainant.[18] We also disagree with Mr Lucas's submission that the case of Brunie v R, whichadopted a starting point of seven years and upon which the Judge relied, is notcomparable to this case.12 That case involved two discrete offences of sexualconnection with a person under 16 over a period of about one month, and one chargeof meeting her following sexual grooming. The complainant there was particularlyvulnerable given she was detained and as a result of the circumstances leading to herplacement in the foster care facility where the offender worked. However, thecomplainant was 15 rather than 13, suffered from two incidents of offending overone month rather than countless occasions of offending over two years, and did notsuffer the consequences of pregnancy. The gravity of Mr Taylor's actions here isworse.[19] The Crown refers to the following cases, which we consider relevant:(a) R v Tamatea, which involved a significant age gap with a similarly agedcomplainant, regular sexual intercourse over 18 months, manipulativebehaviour and breach of trust.13 A starting point of eight years, in theabsence of the consequences of pregnancy, is comparable to the startingpoint adopted here.9 H (CA94/08) v R [2008] NZCA 237. This Court did, however, consider the starting point was"generous" to the appellant, at [19].10 At [10].11 R v Johnson [2010] NZCA 168 at [17], citing H (CA94/08) v R, above n 9.12 Brunie v R [2009] NZCA 300.13 R v Tamatea [2016] NZHC 1412 at [14].(b) R v Holster, where the Court considered a starting point in the vicinityof nine or 10 years was appropriate.14 The case involved similaroffending to that here, with the additional element of violence butwithout the enduring effect of pregnancy and birth.[20] We agree with the Judge that it is difficult to imagine a more serious caseinvolving one complainant, short of rape. The Judge was required by s 8(d) of theSentencing Act 2002 to set a penalty near the maximum prescribed for the offence.The starting point she adopted of nine years was an effective means of doing so.We consider the starting point was within the allowable range.Should there have been a discount for previous good character?[21] There is no doubt that Mr Taylor's community and educational achievements,on their own, are impressive. The Judge turned her mind to this, as required bys 9(2)(g) of the Sentencing Act.15 But the case law is clear that prolonged offending"necessarily calls good character into question", as this Court said in Britow v R.16And Mr Taylor's lack of insight into his offending calls into question the potential forself-correction that good character might otherwise suggest. His offending was not amomentary, out of character, lapse of judgement.[22] Mr Lucas relies on several cases. But:(a) In R v Campbell, additional discounts were allowed on appeal for avariety of circumstances.17 But the nature of the offending (possessionof methamphetamine) called into question different aspects of characterthan does sexual offending against a child. Although a discount forgood character was granted in R v Findlay, this Court halved the initialdiscount, regarding it as being outside the appropriate range.18 That14 R v Holster HC Christchurch CRI-2008-009-16039, 8 July 2009 at [46].15 R v Taylor, above n 1, at [47].16 Britow v R [2017] NZCA 229 at [10]. See also Zhang v R (2004) 20 CRNZ 915 (CA) at [26],approved in Shone v R [2009] NZCA 183 at [25].17 Campbell v R [2020] NZCA 356.18 R v Findlay [2007] NZCA 553 at [98] and [102]–[103].case also concerned offending of a different nature (fraud anddishonesty) to that here.(b) In Parkin v R and Solicitor-General v Rawat, the offending was sexualin nature but was not nearly as prolonged as it was here.19 And, asMr Radich submits, the offending in both cases was historic: 37 and 12years before trial respectively. In both cases, the potential forrehabilitation after offending, which is suggested by good character,had been demonstrated.20[23] As William Young J said in Hockley v R, credit for good character has beenregarded as "very much a matter of impression".21 Older authorities suggestconviction and custodial punishment are themselves felt more heavily by those ofpreviously good character and that a "fall from grace" as punishment in itself shouldbe recognised in the sentence. For example, the Court of Appeal of England and Walesin R v Sargeant said:22 for men of good character the very fact that prison gates have closed is themain punishment. It does not necessarily follow that they should remainclosed for a long time.[24] The notion of a credit in sentencing to recognise a "fall from grace" is lessrelevant today, particularly in relation to sexual offending which calls into questionthe original state of grace. The contemporary sentencing approach is to identify theconsiderations relevant to assessing a discount for previous good character.In Manawaiti v R, this Court identified as relevant: the length of the period for whichthe defendant exhibited good character; whether the evidence of good characterincludes positive contributions to society in addition to the absence of convictions;and the need for a discount to be proportionate to the overall sentence.23 The Courtalso noted that good character may be less relevant in more serious offences.24 We add19 Parkin v R [2018] NZCA 404; and Solicitor-General v Rawat [2021] NZHC 2129.20 Parkin v R, above n 19, at [17]–[18] and [31]; and Solicitor-General v Rawat, above n 19, at [45]–[46].21 Hockley v R [2009] NZCA 74 at [32].22 R v Sargeant (1974) 60 Cr App R 74 (EWCA Crim) at [77].23 Manawaiti v R [2013] NZCA 88 at [19]; and Parkin v R, above n 19, at [16].24 Manawaiti v R, above n 23, at [17].that the contribution of an offender's previous good character to enabling the offendingis relevant.[25] Here, the Judge's treatment of previous good character did not double-countthe aggravating circumstances of the offending. The nature of Mr Taylor's offendingexhibited the aggravating factors identified above, which go to his culpability.There is no reason the same factors cannot be relevant to whether a discount shouldbe given for personal circumstances. Mr Taylor's offending and reaction to itdemonstrates a very troubling aspect of his character. It was Mr Taylor's previousgood character which led the complainant's mother to entrust her to his care.His offending breached the trust of a vulnerable child. His reaction to her pregnancywas driven by self-preservation. His reaction to the prospect of being found out wasvicious. His lack of remorse was evident in the pre-sentence report, his superficialletter of apology to the complainant and self-concern in his letter to the Court, whichwere both written after completing his stopping-violence programme. He has notprovided financial support for his child to the complainant. As Mr Radich submits,we cannot say Mr Taylor's two years of prolonged offending are out of character.[26] The Judge was entitled not to discount Mr Taylor's sentence for his previousgood character. We would take the same approach.Result[27] The appeal is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent