R v Taylor
[2021] VSC 219
•9 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0290
| THE QUEEN |
| v |
| TROY ANTHONY TAYLOR |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 February 2021 |
DATE OF SENTENCE: | 9 April 2021 |
DATE OF JUDGMENT: | 29 April 2021 |
CASE MAY BE CITED AS: | R v Taylor |
MEDIUM NEUTRAL CITATION: | [2021] VSC 219 |
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CRIMINAL LAW – Manslaughter – Sentence – Plea of guilty – Responding to threat to wife – Response unreasonable.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson QC | Ms A Hogan, Solicitor of Public Prosecutions |
| For the Accused | Mr H. Rattray with Mr W. Barker | Balmer & Associates |
HIS HONOUR:
Before delivering this sentence, I should indicate that I am grateful for the assistance I have received from counsel on both sides in this case. One which I have indicated earlier, and still regard, as a somewhat difficult case, and it ought be reminded to everyone that there is no room for the expression in the law of ‘it was just a plea’.
Troy Anthony Taylor, on 7 January 2021 you pleaded guilty before me to the manslaughter of Michael Wilson, your next-door neighbour. Although you did plead guilty to that offence you did not accept that I should use the Summary of Crown Opening as the factual basis for your plea. The matter proceeded as what has been called a contested plea.
On 11, 12 and 13 January 2021 I heard evidence from witnesses Joel Grass, Kim Scott and Detective Senior Constable Kirsty Hellebrand on behalf of the prosecution. You also gave evidence on the contested plea. Grass and Scott, who was Michael Wilson's partner of many years, were both significant eyewitnesses, but not necessarily of all of the relevant events. Detective Senior Constable Kirsty Hellebrand is the informant in the case.
I received written submissions about the factual findings I should make for the purpose of sentencing you and on 19 February 2021 I published my findings in that regard. [1] This sentence should be read in conjunction with that ruling.
[1]DPP v Troy Taylor (Ruling on Contested Plea) [2021] VSC 69.
For the purpose of this sentence the facts may be stated briefly.
On the afternoon of 5 May 2019 you were at home at 60 Salmon Street, Hastings, and Michael Wilson was at his home at 58 Salmon Street, Hastings. Kim Scott was also at home.
Unbeknownst to you your wife, Tracey Taylor, was in the vicinity of 60 Salmon Street, Hastings. At that time, she should not have been at the premises because she was the subject of an order prohibiting her from being there. When looking at the two houses from the street your house was on the right of Michael Wilson’s house.
At about 7.30 pm a verbal argument started between Kim Scott and Tracey Taylor. Such arguments were apparently common. Kim Scott was in her backyard and it is not entirely clear where Tracey Taylor was. At some stage she came into the front yard of No. 58 and approached the fence and gate into the backyard of No. 58. By that time both Michael Wilson and Kim Scott were involved in the argument and Michael Wilson was encouraging Kim Scott to go out and deal with Tracey Taylor.
As it transpired, Kim Scott went back through the house and came out the front door, to the front porch. Michael Wilson came out of the backyard to the place where Tracey Taylor was, or had been. In your evidence you said that you came to No. 58 twice and on the first occasion you observed that Michael Wilson had hold of Tracey Taylor, and he was apparently armed with a knife. You then returned to your house, where you armed yourself with one half of a pair of hedge trimmers and returned to No. 58. You gave evidence that you had come to the premises because you had heard Michael Wilson threaten to kill Tracey Taylor. Although I was not prepared to accept that you made two trips to No. 58, I am prepared to accept that you heard something that caused you to go to the premises, and to do so armed, and that you did so to protect Tracey Taylor. I do not accept your version of events that Michael Wilson still had hold of Tracey Taylor at the time you came into the front yard, or that you received a cut to your hand in the way described by you.
It follows that I find you came into the yard and struck Michael Wilson in the upper back, using a bladed weapon with a long handle, which caused his death. It appeared, on the available evidence, that Michael Wilson’s aggressive behaviour was unusual and that most of the aggressive activity between neighbours had been between Tracey Taylor and Kim Scott. There was evidence that Michael Wilson was found to have a relatively high reading for the presence of steroids in his bloodstream, which might go some way to explaining his aggressive behaviour. I accept that your conduct was a response to the circumstances you found yourself in and was not pre-meditated.
This is, nonetheless, a reasonably serious example of the crime of manslaughter because of the weapon which you used. By your plea you accept that your response was not a reasonable one.
On the plea I received victim impact statements from Kim Scott, Joel Grass and Ronald Wilson. On a personal level Michael Wilson's death has been very difficult for them and Kim Scott has been very substantially affected by the events and their aftermath. Joel Grass also continues to suffer and without there being a formal diagnosis, he describes symptoms commonly seen in those diagnosed with post-traumatic stress disorder. Ronald Wilson, Michael Wilson’s father, has also been devastated by his death. I have taken those statements into account.
Although a formal victim impact statement was not tendered from James Wilson, son of Michael Wilson, it was accepted that I could take into account that he suffered a deterioration of his mental state since these events. He was also an eyewitness, having been in the car with Joel Grass. He was not fit to give evidence on the plea or at any other stage in the proceedings. I have taken his position into account.
On the plea, a report of Ms Matilda Douglas, a forensic psychologist, dated 15 February 2021 was tendered on your behalf. In the report, she set out your history in some detail, and your counsel relied upon that report as accurately setting out your history.
You are 48 years of age, having been born in Southport, Queensland. After a family violence incident, in which your leg was broken, your parents separated. That has been reported as either when you were six weeks old or six months old; nothing turns on the difference. After the separation, your mother moved to Melbourne, and although you were introduced to your father when you were about six, he was introduced as your uncle, and you did not find out that he was actually your father until you were 30.
You have one older brother and a younger half-brother. You grew up in the care of your mother and stepfather, who you believed to be your father. That relationship ended when you were 14. You reported that your mother had beaten you often with implements, including a frying pan. There was a time that your mother attempted suicide and you had to call the ambulance, although she told you not to do so.
You tried to maintain a relationship with your then stepfather but were unable to do so. Your mother remarried. You do not have much of a relationship with your mother. You appear to genuinely care for your younger half-brother who suffers from epilepsy, but you have had no contact with either of your brothers since you have been in prison.
As you grew up, your schooling was spasmodic, and you have described your behaviour at school as being, at the least, unsatisfactory. You finished you schooling at Alexandria High School during Year 9. You had worked in a café from the age of 13. When you left school at age 14, you started working in a pub kitchen, and by the age of 16 were running that kitchen.
You started a carpentry apprenticeship but did not complete it. You worked on tobacco and mushroom farms in Myrtleford from age 18, and you returned to the hospitality industry when you were 23 and then moved onto labour intensive work. At about that time, you took up the primary care of your children, and have been a disability support pensioner since. You have not worked since that time.
You met Tracey in about 1995, when you were 23. She was pregnant with her daughter, Kiah. You and Tracey have three children, Eric, Troy Junior and Billy. You have always treated Kiah as your daughter. You formed a permanent relationship but did not marry. You were the primary carer for the children.
Tracey was dominant in the relationship and was violent to you and the children. That led to the involvement of DHHS and the children being placed into care from time to time. Ultimately, you had Kia and Eric returned to your care. The relationship was difficult, and Tracey tended to come and go. Various attempts at reconciliation were not particularly successful. You feel that you were tricked into Tracey becoming pregnant with your youngest child during one such attempted reconciliation. You reported that Tracey drank too much and was a daily user of methylamphetamine, which was an explanation for her irrational behaviour.
At the time of these events, you had taken out a family violence intervention order against Tracey. The two of you had a history of taking out such orders against one another.
At the time of these events, you were hopeful of getting back the custody of your two younger children from the Department. For that to occur, you had to provide six negative urine tests; you had provided four such tests. You and Tracey had set out to visit the children on this day, but you became unwell and were not able to complete the visit. You had not expected Tracey to return to your house on that day.
You have a significant history of suffering from severe depression from age 23 onwards. You reported having a breakdown at the age of 25, when Tracey broke your daughter’s arm, which led to the intervention of DHHS. You were referred to a psychiatrist and were diagnosed with anxiety and depression. You were treated with various antidepressants and consulted a psychologist in 2015. You have reported attempting to commit suicide, two such attempts.
being associated with this offending. Ms Douglas reported, ‘Mr Taylor denied any current suicidal thoughts, plan or intent’.
In prions, you have been taking Pristiq and seeing a counsellor regarding your sleep, nightmares, low mood, rumination and social withdrawal. From age 14, you have been a daily cannabis user up until the time you were taken into custody. At the age of 25, you began to use heroin, associated with the incident involving the breaking of your daughter’s arm.
You used heroin for approximately three years. You stopped using it when you went into prison and you commenced on a buprenorphine program. You have remained abstinent from heroin since. You have been an occasional user of ice, that is methylamphetamine. You have used, but apparently not abused alcohol. You reported having reported in counselling with a Peninsula drug and alcohol program on multiple occasions and finding it helpful.
Your criminal record was filed with the Court. That history commences with a minor dishonesty offence in 1992. Between 1997 and 2000, you have convictions for drug, dishonesty and bail offences for which you were fined. One of those fines was converted to community service.
In October 2002, you were convicted for further dishonesty and bail offences. You were fined for some offences and released on a suspended sentence for others. The suspended sentence was three months suspended for two years.
In 2003, the suspended sentence was restored. On the same day, you were convicted of recklessly causing injury engaging in an act prejudicial to the good order of management of the gaol. You were released on a community-based order for 12 months to operate from the date you were to be released from the restored suspended sentence. You failed to comply with the community-based order, and you were sentenced to a partially suspended sentence. The sentence was suspended for two years.
You also appear to have been convicted of a further charge for recklessly causing injury for which you were sentenced to two months’ imprisonment wholly suspended. You were subsequently convicted of possession of a prohibited weapon which breached the suspended sentence and the period of suspension was extended for six months. That was in July 2006.
You have one minor conviction in 2009. You do not appear to have been in trouble with the police since. That is a matter which I regard as significant.
Your history up until 2003 and perhaps a little afterwards was fairly consistent with a person who was drug addicted. You have said that you had been using heroin at about that time and you managed to get off it and keep off it.
The prosecution submitted that I should regard your convictions for causing injuries recklessly and possession of a prohibited weapon together with disregard of court orders as significant. In your case, being conviction-free for ten years is more important.
I accept that your care and dedication to your children is genuine and I regard your prospects of rehabilitation although guarded as probably reasonable. You have been employed in custody and have completed some vocational courses.
Your mental health is relevant; both your depression and the possibility that you suffer from post-traumatic stress disorder. As part of that analysis, I have taken into account the very difficult relationship you have had with Tracey which appears to be the principal cause of your major depressive illness and in many ways the cause of these events. Although on the day in question you were prepared to disregard the order you had taken out so that if you both go and visit the children, you could not have anticipated that Tracey would return to your house and start trouble.
I accept, in particular, because of your depression, the sentence I impose will weigh more heavily on you than others without your disorder.
Much of your adult life has been directed towards the upbringing of your children. I take into account that you will not play a significant part in some of the important years of the growing up of your two young children who now are in the care of your eldest son and his partner.
I have concluded that you are remorseful; that is you do regret that you caused Mr Wilson’s death beyond any feeling that you have for the position in which you find yourself, although aspects of your regret include that too. I regard your plea of guilty as significant both in utilitarian terms and showing some remorse.
Although the plea came at a time relatively late, there is a partial explanation as to why that was so. You cannot get the benefit of an early plea. I do not take the matter beyond that. Your decision to plead guilty was important because it meant that you would not be able to rely upon self-defence as an actual defence. I make my findings about remorse in particular because of what I observed of you in the witness box.
You have been in custody since 5 May 2019. That is almost two years. During that time, particularly since March 2020, you have been subject to COVID-19 restrictions and I have taken that into account. I was referred to a number of cases on the plea. The prosecution relied upon what was said by Redlich J as he then was in R v Sypott,[2] in which he emphasised the seriousness of the crime of manslaughter. The prosecution provided me with a synopsis of a number of recent cases for manslaughter both in the Court of Appeal and in the Trial Division.
[2]R v Sypott [2003] VSC 327 at [30].
The defence relied principally upon R v Yucel[3] and DPP v Beattie.[4] Those two cases had some similarity to your case in the sense that they might be termed excessive self-defence cases.
[3]R v Yucel [2018] VSC 506.
[4]DPP v Beattie [2020] VSC 229.
I have had regard to all the cases to which I have been referred.
I am obliged to have regard to just punishment, denunciation, general and specific deterrence. I do not regard specific deterrence as an important feature of your sentence.
I have had regard to the nature of your offending, and I have taken into account the matters put on your behalf.
Although the sentence I will impose is a relatively long one with reasonably life expectancy, you will have many fruitful years ahead of you on release.
Will you stand up please?
Troy Anthony Taylor, you are sentenced to be imprisoned for eight years and six months.
I fix a period of six years before you will be eligible for parole.
Although I was urged to allow you a longer than usual period on parole, I have decided that the period of two years six months is the period that best suits your needs and the needs of the community.
I declare that you have served 705 days pre-sentence detention. What that means is that from today your earliest date of release would be in about four years’ time – that is what that boils down to – from today.
I indicate that had it not been for your plea of guilty I would have sentenced you to be imprisoned for 11 years with a period of eight years six months before being eligible for parole.
I declare that you have served 705 days by way of pre-sentence detention.
I direct that the above declaration and indication be entered in the records of the Court.
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