R v Taylor

Case [2015] SASCFC 132

Supreme Court of South Australia

(Court of Criminal Appeal)

R v TAYLOR

[2015] SASCFC 132

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

18 September 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application for permission to appeal against sentence by the Director of Public Prosecutions.  The respondent was jointly charged on Information with the offences of aggravated serious criminal trespass in a place of residence and aggravated causing serious harm with intent.  The circumstances of aggravation were the use of weapons and being in company with another.  The respondent and his co-accused brutally assaulted the victim in the course of recovering a drug debt.  The victim was left with life-long mental impairment.  The respondent gave a number of different versions of events to police and initially pleaded not guilty to both charges.  About one week prior to trial, the respondent pleaded guilty to aggravated causing serious harm with intent.  A disputed facts hearing was held in which the respondent sought to minimise his involvement in the offending, giving a version of events which again differed from the versions of events previously given to police.  His evidence was rejected by the sentencing Judge.  The Judge sentenced the respondent to a term of imprisonment of three years, two months and two weeks, with a non-parole period of one year, seven months and one week. 

Whether the sentence was manifestly inadequate.  Whether the non-parole period was manifestly inadequate. 

Held per Gray ACJ (Kelly J and David AJ agreeing) (granting permission to appeal and allowing the appeal):

1.  The sentence was manifestly inadequate.

2.  The non-parole period was manifestly inadequate.

3.  Respondent resentenced to a term of imprisonment of seven years, with a non-parole period of three years.

Criminal Law Consolidation Act 1935 (SA) s 23(1), s 170 and s 352, referred to.
Cameron v The Queen (2002) 209 CLR 339; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44; R v Nemer (2003) 87 SASR 168; R v Harkin (2011) 109 SASR 334; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Burner [2015] SASCFC 133, considered.

R v TAYLOR
[2015] SASCFC 132

Court of Criminal Appeal:       Gray ACJ, Kelly J and David AJ

GRAY ACJ.

  1. This is a Crown appeal against sentence. 

    Introduction

  2. The defendant and respondent, Nathan James Taylor, was jointly charged on Information with Kevin Gordon Burner with the offences of aggravated serious criminal trespass in a place of residence[1] and aggravated causing serious harm with intent.[2]  It was alleged that, on 28 July 2012 at Henley Beach, Taylor and Burner entered…

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Details
AGLC
R v Taylor [2015] SASCFC 132
Case
[2015] SASCFC 132
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, Taylor, who had pleaded guilty to aggravated causing serious harm with intent. Taylor and a co-accused had brutally assaulted the victim during an attempt to recover a drug debt, resulting in the victim suffering life-long mental impairment. Taylor had provided multiple, conflicting accounts of the events to the police and sought to minimise his involvement during a disputed facts hearing, where his evidence was ultimately rejected by the sentencing judge.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence of three years and two months imprisonment, with a non-parole period of one year, seven months and one week, imposed on Taylor was manifestly inadequate. The court was required to consider the principles applicable to Crown appeals against sentence, particularly in cases involving serious violent offending.

The court reasoned that the sentence imposed was manifestly inadequate given the gravity of the offence and the severe, life-long consequences for the victim. While acknowledging Taylor's prior good record and difficult background, the court found that the seriousness of the assault warranted a significantly higher head sentence. The court applied the principle that appellate courts will intervene in Crown appeals against sentence where the sentence imposed is demonstrably outside the appropriate range.

The appeal was allowed, and Taylor was resentenced to a term of imprisonment of eight years, reduced to seven years to reflect his guilty plea. A non-parole period of three years and six months was fixed.

Orders

Orders of the court

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Background

Background to the litigation

The Judge sentenced Burner on the same day to a period of imprisonment of two years and six months. The Judge fixed a non-parole period of one year and three months. The Director also sought permission to appeal against Burner’s sentence.[3]The Facts[3] R v Burner [2015] SASCFC 133.Taylor’s Evidence at the Disputed Facts Hearing Taylor’s evidence at the disputed facts hearing may be summarised as follows. DV was a drug dealer who owed Taylor about $18,500.00 worth of drugs and cash. On 27 July 2012, DV agreed to make a payment. He then became uncontactable. At about 8.30 pm, Taylor sent a text message to DV in the following terms:You would want to pick up your fucking phone. Last chance before Ser[b]ians visit you at home and work. Pick up.The reference to “Serbians” is to be understood as a reference to Albanian debt collectors. That evening, DV was sent a number of messages concerning the repayment of his debt from Taylor’s phone, including: “Coming around today”, “Have you found it yet”, “Stop playing or I’ll see you at work”, “If you fuck with me there will be people higher than the Albanians.” Burner drove Taylor to DV’s house. Burner shouted at DV, threw him against a wall and punched him to the head multiple times. DV moved toward Taylor, who punched him three times to the head. Burner used the handle of a pair of large ornamental scissors to hit DV on the head with “a great thud”. Burner searched the house while Taylor tended to DV. Taylor was “petrified” of Burner and feared for his own safety. Taylor’s Police Interviews The version of events given by Taylor at the disputed facts hearing stood in sharp contrast with the multiple versions of events he gave police. Taylor spoke to police on 28 July 2012. He claimed ignorance of any assault on DV. Taylor’s version of events in this interview may be summarised as follows. He had invested money in DV’s hairdressing business and provided personal loans. On 27 July, he went with Burner to DV’s house to recover a payment. DV “ended up telling me to fuck off and I was like fuck you and I just walked off and Kevin was left behind and they started arguing”. He drove “straight home”, “played my X Box for a little bit, played with my boy and then I slept.” Burner did not mention anything the next morning. A short time later, Taylor gave another interview to police. His version of events in his second interview may be summarised as follows. On the first occasion they went to DV’s house, Taylor and Burner argued with DV and left together. They went to DV’s house on a second occasion, unarmed. DV told Taylor to “fuck off”. Burner argued with DV and Taylor drove away. DV and Burner were “coming down scattered off speed”. Burner was “really angry about [DV]”. The next morning, Taylor thought Burner may have “done something” to DV as he was “being a smart arse about it, he likes talking in riddles. He’s like full... Buddhism, Hinduism crap.” Taylor was intimidated “a little bit” by Burner, “you know he’s like bigger frame and shit.” Burner had been violent toward him in the past, burning him with an oxy welder and throwing pavers at him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY ACJ
In my view, the sentence imposed was manifestly inadequate.[14] It may be accepted that, until this assault, Taylor had not engaged in serious offending for many years. He had a difficult childhood. His family rely on him. However, offending of this seriousness warranted the imposition of a head sentence in the range of eight to ten years. [14] See R v McNamara (2009) 105 SASR 38; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Harkin [2011] SASCFC 24; R v Campbell [2012] SASCFC 44; R v Clancy [2013] SASCFC 63; R v Koch [2015] SASCFC 31.Conclusion I would grant permission to appeal and allow the appeal. I would resentence Taylor to a term of imprisonment of eight years, reduced to seven years on account of his plea of guilty. I would fix a non-parole period of three years and six months. KELLY J: I agree with the orders proposed by Gray ACJ and with his reasons. DAVID AJ: I would allow the appeal for the reasons given by Gray ACJ and agree with the orders he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY ACJ

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