TAYLOR v R [2022] NZCA 118

TAYLOR v R [2022] NZCA 118 [8 April 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA731/2021[2022] NZCA 118BETWEEN RUKU TAYLORAppellantAND THE QUEENRespondentHearing: 29 March 2022Court: Brown, Lang and Mallon JJCounsel: F D Steedman for AppellantB D Vanderkolk and M G Wilkinson for RespondentJudgment: 8 April 2022 at 11.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of 13 years' imprisonment imposed on the charge of sodomyis quashed and a sentence of 12 years nine months' imprisonment isimposed in its place.C The cumulative sentence of three years nine months' imprisonmentimposed on the charge of sexual violation is quashed and a concurrentsentence of three years nine months' imprisonment is imposed in its place.D The order requiring the appellant to serve a minimum term ofimprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] The appellant, Mr Taylor, faced 64 charges alleging unlawful sexual offendingagainst seven young male complainants. He elected trial by jury but entered guiltypleas to all charges shortly after the trial commenced in the District Court.[2] On 23 November 2021, Judge Krebs sentenced Mr Taylor to 16 yearsnine months' imprisonment.1 The Judge also made an order requiring Mr Taylor toserve a minimum period of eight years, four months and two weeks, or 50 per cent ofthe sentence, before being eligible to apply for parole.2[3] Mr Taylor appeals against sentence on the basis that the Judge erred in principlewhen selecting the starting point to be imposed on the charges. He also contendsthe Judge had no power to require him to serve a minimum term of imprisonmentbefore being eligible to apply for parole.[4] The Crown accepts the sentencing process miscarried because the Judge failedto adhere to the principle that an offender must be sentenced in accordance with thepenalties which applied at the time when the offences were committed.3 During thehearing before us counsel also reached agreement regarding the appropriate startingpoint for the sentence to be imposed on Mr Taylor and the level of discounts to beapplied to reflect mitigating factors. Furthermore, they agree there was no jurisdictionfor the Judge to require Mr Taylor to serve a minimum term of imprisonment beforebeing eligible to apply for parole.Background[5] It is not necessary for present purposes to describe Mr Taylor's offending inany detail. It comprised sexual offending against six boys and one young man between1978 and 2017. Mr Taylor ultimately pleaded guilty to 26 charges of indecent assault1 R v Taylor [2021] NZDC 23166.2 At [61].3 De Reeper v R [2012] NZCA 617 at [43] and [50].on a male,4 12 charges of indecency between a boy and a man,5 four charges of doingan indecent act on a boy between the ages of 12 and 16 years,6 one representativecharge of sexual conduct with a child under 12 years of age,7 eight charges ofindecency with a boy under 12 years of age,8 seven charges of sodomy,9 three chargesof sexual violation by unlawful sexual connection,10 and three charges of assault on achild.11[6] The complainants were all young males who were either members or associatesof Mr Taylor's wider family. The offending comprised a wide range of acts includingindecent touching, masturbation of the complainants and inducing the complainants tomasturbate him, as well as oral sexual connection and sodomy. Several of thecomplainants were subject to offending by Mr Taylor on numerous occasions overlengthy periods of time. The offending generally occurred within the complainants'homes on occasions when Mr Taylor was visiting or staying there. Some of theoffending involved violence in the form of punches to the complainants' heads.The sentence[7] The maximum penalty for serious sexual offending was increased in 1993 from14 to 20 years' imprisonment. The most serious offending by Mr Taylor occurred priorto 1993. The starting point for a contested charge of rape during the relevant periodwas five years' imprisonment.12 After the maximum penalty was increased in 1993,the starting point for a contested charge of rape was increased to eight years'imprisonment.134 Crimes Act 1961, s 141(1)(a), maximum penalty of five years' imprisonment.5 Section 140(1)(a), maximum penalty of ten years' imprisonment.6 Section 140A(1)(a), maximum penalty seven years' imprisonment.7 Section 132(3), maximum penalty of ten years' imprisonment.8 Section 140(1)(a), maximum penalty of ten years' imprisonment.9 Section 142(1)(b), maximum penalty of 14 years' imprisonment; and s 142(1)(c), maximumpenalty of seven years' imprisonment.10 Section 128(1)(b) and (5)(a)(i), maximum penalty of 14 years' imprisonment.11 Section 194(a), maximum penalty of two years' imprisonment.12 R v Clark [1987] 1 NZLR 380 (CA) at 383, noting that the general level of sexual violationsentencing in New Zealand was, at the time, broadly similar to that in England, where five years'imprisonment was taken as a starting point in a contested case.13 R v A [1994] 2 NZLR 129 (CA) at 131.[8] Counsel agree the Judge correctly took the lead offences as being two chargesof sodomy and one charge of sexual violation by unlawful sexual connection. Theserelated to a single complainant and concerned conduct that occurred betweenJuly 1980 and July 1988. Counsel also agree that the Judge erred in observing14 thatthe sodomy charge related to 150 individual acts when the summary of facts recordedthe complainant's belief that the completed act of sodomy occurred on two, three orfour occasions. This error may have occurred because the summary also stated thatMr Taylor made approximately 150 attempts to engage in the act of sodomy with thiscomplainant. The Judge selected a starting point of 13 years' imprisonment on thesecharges.15 He then applied an uplift of eight years to reflect the charges relating to theremaining complainants. This produced a sentence of 21 years' imprisonment.16[9] The Judge then applied a discount of 7.5 per cent to reflect Mr Taylor's guiltypleas. This reflected the fact that Mr Taylor had entered his pleas after the trial hadcommenced and the first of the complainants had given his evidence-in-chief.17The Judge applied a further discount of 12.5 per cent to reflect difficulties Mr Taylorhad encountered in his upbringing.18 These had been identified in a psychologicalreport and in a report provided to the Court at sentencing under s 27 of the SentencingAct 2002. Both reports confirmed Mr Taylor had a difficult upbringing and had beenthe subject of repeated sexual abuse at a young age by a male associate of his fosterfather. Mr Taylor began to offend against others shortly after this sexual abuse cameto an end.[10] The discounts reduced the sentence to one of 16 years nine months'imprisonment. However, the Judge's sentencing remarks do not record the sentencesimposed on individual charges. It is necessary to refer to Mr Taylor's criminal historyto obtain this information. This reveals that the Judge imposed a sentence of 13 years'imprisonment on one of the sodomy charges and a cumulative sentence of three yearsnine months' imprisonment on one of the charges of sexual violation. He then imposedconcurrent sentences of between nine months and six years on the remaining charges.14 R v Taylor, above n 1, at [44].15 At [45].16 At [46]–[51].17 At [52]–[55].18 At [57].As we have already observed, the Judge also ordered Mr Taylor to serve a minimumterm of eight years, four months and two weeks' imprisonment before being eligibleto apply for parole.The appeal[11] Mr Vanderkolk acknowledges on the Crown's behalf that the Judge erred byapplying current sentencing principles rather than those applicable at the time of theoffending. He also responsibly accepts the error is likely to have occurred at least inpart because the Crown did not refer the Judge to the correct principles in itssentencing submissions. Mr Steedman had done so in his submissions but the Judgeerroneously adopted the approach suggested by the Crown. Mr Vanderkolk alsoaccepts the error resulted in Mr Taylor receiving an end sentence that is manifestlyexcessive.[12] Counsel agree that the appropriate starting point for the offending in relationto five of the complainants was one of 14 years' imprisonment. This offendingoccurred between 1978 and 1998. Having considered sentencing authorities that relateto the period when Mr Taylor committed his offences, we agree with this analysis. Itreflects the approach taken in comparable cases such as R v G (CA143/93),19Roper v R20 and R v B (CA41/07).21[13] Mr Taylor offended against the first of the remaining two complainantsbetween August 1996 and August 1998. He offended against the second betweenDecember 2016 and October 2017. The offending against these complainants was lessserious than the earlier offending. Counsel agree that an uplift of two years isappropriate to reflect the charges that relate to these two complainants. This meansthe end starting point is one of 16 years' imprisonment, rather than that of 21 yearswhich was selected by the Judge.[14] Given the very late stage at which they were entered, Mr Steedman acceptsthe Judge may have been generous to apply a discount of 7.5 per cent to reflect the19 R v G (CA143/93) (1993) 10 CRNZ 379.20 Roper v R [2016] NZCA 263.21 R v KJB (CA41/07) [2007] NZCA 292.guilty pleas. He therefore acknowledges he cannot argue with an overall discount of20 per cent after taking into account the reduction the Judge applied to reflect thefactors identified in the s 27 report. Applying this to the starting point of 16 years'imprisonment results in a total deduction of three years three months. This reducesthe end sentence to one of 12 years nine months' imprisonment.[15] Section 86 of the Sentencing Act 2002, which authorises the imposition of anorder requiring an offender to serve a minimum term of imprisonment, had not beenenacted when Mr Taylor committed the most serious of his offences. Counsel agreethat the offending which occurred after the enactment of the section was notsufficiently serious to justify an order being made. We accept their submission thatthere was no jurisdiction to make an order requiring Mr Taylor to serve a minimumterm of imprisonment.Result[16] The appeal against sentence is allowed. The sentence of 13 years'imprisonment imposed on the charge of sodomy is quashed. In its place we impose asentence of 12 years nine months' imprisonment. The cumulative sentence of threeyears nine months' imprisonment imposed on the charge of sexual violation is alsoquashed. We impose a concurrent sentence of three years nine months' imprisonmentin its place. The concurrent sentences imposed on the remaining charges remain intact.Finally, we quash the order requiring Mr Taylor to serve a minimum term ofimprisonment before becoming eligible to apply for parole.Solicitors:Crown Solicitor, Palmerston North for Respondent