In the Matter of appeal against sentence Between Alisia Taylor Appellant And the Crown Respondent

[2024] NZHC 1273

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-1

[2024] NZHC 1273

UNDER

the Criminal Procedure Act 2011

IN THE MATTER

of appeal against sentence

BETWEEN

ALISIA TAYLOR

Appellant

AND

THE CROWN

Respondent

Hearing:

29 February 2024 (via VMR)

Appearances:

H B Vaughn for the Appellant

M J M Mitchell for the Respondent

Judgment:

22 May 2024

Reissued:

22 May 2024

JUDGMENT OF PALMER J

Solicitors:

Vaughn Blake Law, Gisborne Crown Solicitor, Napier

TAYLOR v THE CROWN [2024] NZHC 1273 [22 May 2024]

What happened?

[1]    At around 8.40 pm on Saturday 17 September 2022, Ms Alisia Taylor, then aged 27, was in the New World carpark in Levin. She was intoxicated and arguing with her partner, who also intoxicated and wearing only his underwear. The Police arrived and the argument de-escalated. The Police gave the couple a ride home. At home, the argument must have re-escalated. Ms Taylor stabbed her partner in the back with a large kitchen knife. The knife penetrated 8–10 centimetres, causing a significant wound and significant blood loss. For this, Ms Taylor was charged with wounding with intent to injure.1

[2]    When the Police attempted to place a hand cuff on Ms Taylor, she pulled away, falling into a fence and breaking it. She spat in a constable’s face as they restrained her. At the Levin Police station, she would not get out of her blood-soaked trackpants and into a gown. When three officers tried to remove her pants, she punched the first officer in the jaw and kicked them in the stomach, kicked the second officer in the leg, and bit the arm of the third officer. For this she was charged with injuring with intent to injure, resisting arrest, and three charges of assaulting a Police officer.2

[3]    On 22 February 2023, in the District Court at Levin, Judge B Northwood gave Ms Taylor a sentencing indication for the alleged September 2022 offending:3

(a)On the most serious charge, of wounding within intent to injure, the Crown sought a starting point of three and a half years’ imprisonment, uplifted by 12 months to take all offending into account. Ms Taylor’s counsel submitted it should be 15 months’ imprisonment, uplifted by nine months. For wounding with intent to injure, the Judge considered the moderate degree of violence, serious injury, and use of a weapon were aggravating factors.4 He considered the offending sat somewhat

1      Crimes Act, s 188(2). Carrying a maximum penalty of seven years’ imprisonment.

2      Sections 189(2); and Summary Offences Act 1981, ss 23 and 10. Carrying maximum penalties of five years’ imprisonment, three months’ imprisonment or a $2,000 fine, and six months’ imprisonment or a $4,000 fine respectively.

3      Police v Taylor DC Levin CRI-2022-031-717 (Notes of Judge B Northwood on Sentencing Indication) [Sentencing Indication].

4 At [11].

short of the upper range of a band of up to three years’ imprisonment and set a starting point of two years and nine months’ imprisonment.5

(b)The Judge set starting points for the injuring with intent to injure at 15 months and for the assaults on police of six months’ imprisonment. He adjusted the resulting starting point for totality to three years and eight months’ imprisonment for all the offending.6

(c)The Judge indicated he would reduce the sentence by 25 per cent, or 11 months, for the guilty pleas, resulting in an end sentence indication of two years and nine months’ imprisonment, subject to consideration of further information about Ms Taylor’s personal circumstances.

[4]    Ms Taylor accepted the sentencing indication and pleaded guilty. Before she was sentenced, further charges were laid. Around 11 pm on Friday 4 August 2023, the Police attended a family harm callout at Ms Taylor’s home, where she was on bail for the September 2022 offences. Before taking her to the Gisborne Police station for breaching two of her bail conditions, not to consume alcohol and a non-association order, the Police allowed her to go inside and say goodnight to her children. While inside, Ms Taylor got into a physical altercation with her mother. When the Police intervened, Ms Taylor headbutted one officer on the nose and donkey-kicked another in the thigh. For this she was charged with two charges of assaulting police, to which she also pleaded guilty.

[5]    On 23 January 2024, in the District Court at Gisborne, Judge A A Couch sentenced Ms Taylor for the offending arising in September 2022 and August 2023:7

(a)He adopted the adjusted starting point of the sentencing indication of three years and eight months’ imprisonment. He uplifted that by three months to reflect the August 2023 offending, which occurred while Ms Taylor was on bail.8

5      At [12]–[13].

6 At [17].

7      Police v Taylor [2024] NZDC 1321 [Sentencing Decision].

8 At [9].

(b)He adopted the 25 per cent discount of the sentencing indication for the guilty pleas, saying that was “extremely generous” and that he would not have given such a large reduction had there not been such a sentence indication.9

(c)The Judge gave a further discount of five per cent for Ms Taylor’s genuine remorse, apology to the victim and participation in restorative justice.10

(d)The Judge gave another five per cent discount, “with caution”, for Ms Taylor’s life history, discussed in a prior report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.11

(e)The discounts given should have resulted in an end sentence of around 30 and a half months’ imprisonment. But the Judge calculated the end sentence to be about 28 and a half months’ imprisonment, which he rounded down to two years and four months’ imprisonment and imposed for the lead offence of wounding with intent to injure. The other sentences were served concurrently. 12

[6]    Ms Taylor appeals the sentence. She also applies to adduce further evidence on appeal. Ms Taylor’s mother, Ms Lisa Taylor, was present at Ms Taylor’s sentencing and requested to address the Court about Ms Taylor’s background. The request was denied. The further evidence is an affidavit by Ms Lisa Taylor. The Crown does not oppose the further evidence and I admit it as credible and relevant.13

Submissions

[7]Ms Vaughan, for Ms Taylor, submits:

9 At [11].

10 At [12].

11 At [13].

12 At [14].

13     See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; and Mark v R [2019] NZCA 121 at [16].

(a)The starting point for the charge of injuring with intent to injure was too high because there was only one aggravating factor, that the victim was a law enforcement officer. The offending was in the upper end of band one, or lower part of band two in Nuku, and a starting point of nine months’ imprisonment is appropriate.14

(b)The Judge erred in not taking into account the 170 days Ms Taylor was on EM bail with a 24-hour curfew and no recorded breaches.

(c)The Judge erred in not allowing Ms Lisa Taylor to speak at the sentencing. He gave no reasons. Ms Taylor’s deprivation and upbringing contributed causatively to her offending and more of a discount would have been awarded if she had been allowed to speak.

(d)If Ms Taylor’s sentence on appeal is 24 months’ imprisonment or less, it should be converted to home detention. Her home detention address is still available.

[8]Ms Mitchell, for the Crown, submits:

(a)The 15-month starting point for injuring with intent to injure was within range. Ms Taylor used a significant amount of force, taking off a chunk of the Police officer’s forearm and risking infection. This falls in the middle of band two of Nuku. In any case, the overall starting point for all of the offending, of three years and 11 months’ imprisonment, was well within range.

(b)No additional discount should be granted for the stricter bail conditions, which were imposed as a result of the August 2023 offending. There was no error in this regard.

14     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

(c)The Crown accepts that the Judge erred in not allowing Ms Lisa Taylor to speak at the sentencing and that the contents of the affidavit support a discount of 10 to 15 per cent.

Was there an error in the sentence and should it be overturned?

[9]    Under s 250(2) of the Criminal Procedure Act 2011, I must allow the sentence appeal if I am satisfied that there is an error in the sentence imposed and a different sentence should be imposed instead. Otherwise, I must dismiss the appeal. The Court will only intervene if a sentence is “manifestly excessive”.15 The focus is on whether the end sentence is within the available range.16

[10]   It is quite clear that Judge Couch erred in not allowing Ms Lisa Taylor to speak at the sentencing. Section 27 of the Sentencing Act 2002 provides:

27 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1)If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a)the personal, family, whanau, community, and cultural background of the offender:

(b)the way in which that background may have related to the commission of the offence:

(c)any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d)how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e)how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

(2)The court must hear a person or persons called by the offender under this section on any of the matters specified in subsection (1) unless the court is satisfied that there is some special reason that makes this unnecessary or inappropriate.

15     Tutakangahau v R [2014] NZCA 279 at [32]–[35].

16     Ripia v R [2011] NZCA 101 at [15].

(3)If the court declines to hear a person called by the offender under this section, the court must give reasons for doing so.

(4)Without limiting any other powers of a court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.

(5)If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1)

[11]   Under s 27(2), the Court was required to hear Ms Lisa Taylor unless it was satisfied there was some “special reason that makes this unnecessary or inappropriate”. Section 27(3) requires the Court to give reasons for declining such an application. The request was declined and no reasons were given. It is difficult to identify any possible reason for declining to hear Ms Lisa Taylor. The Court erred in declining the request and in not giving reasons for doing so. The question is whether a different sentence should be imposed instead.

[12]   Following the sentencing indication, the Judge effectively adopted the sentencing indication which set a starting point of two years and nine months’ imprisonment for the lead offence of wounding with intent to injure and an 11-month uplift for the rest of the September 2022 offending. He uplifted that by a further three months for the August 2023 offending, to three years and 11 months’ imprisonment.

[13]   The starting point for the charge of wounding with intent to injure needs to be seen in the context of the guidance of the Court of Appeal in Nuku for bands of sentencing for offending where there is intent to injure:17

(a)Band one, with a starting point of less than imprisonment, involves few aggravating features, relatively low violence and the offender’s culpability, potentially, being reflected in a lesser charge.

(b)Band two, with a starting point of up to three years’ imprisonment, involves offending with three or fewer aggravating factors.

17     Nuku v R, above n 14, at [38]; and R v Taueki [2005] 3 NZLR 372 (CA) at [31].

(c)Band three, with a starting point from two years up to the statutory maximum, involves offending with three or more aggravating factors and their combination is particularly serious. A high level or prolonged violence generally requires a starting point within band three.

[14]   Here, I agree Ms Taylor’s wounding of her partner with intent to injure involved the following aggravating factors: it involved a moderate (not extreme) degree of violence; moderately serious injury; and use of a lethal weapon. I also agree that places the offending in the band two of the Nuku bands. But Ms Taylor’s offending was less serious than other offending incurring sentences of around two years and nine months’ imprisonment:

(a)Ms Taylor’s offending was less serious than that in R v Harrison, in which Woolford J adopted a two year and 10 month starting point for causing grievous bodily harm with intent to injure, where the offender attacked his father-in-law in an argument by punching him multiple times in the face, in front of the offender’s children, causing his father-in-law to lose consciousness.18

(b)Ms Taylor’s offending was less serious than that in Wynd v Police, in which Asher J upheld a two year and nine month starting point for wounding with intent to injure, where the offender kicked the victim off his feet, punched the victim around the face and head while on the ground, and rubbed an empty beer bottle in the victim’s face.19

(c)Ms Taylor’s offending was less serious than that in Kershaw v Police, in which Hinton J adopted a two year and eight month starting point for wounding with intent to injure, where the offender slashed one victim’s face and wounded another victim twice in a bicep with a knife, three weeks after being released from prison.20

18     R v Harrison [2022] NZHC 801 at [49].

19     Wynd v Police [2013] NZHC 1270 at [10]–[13].

20     Kershaw v Police [2019] NZHC 379 at [46].

(d)Ms Taylor’s offending is marginally less serious than that in Williams v Police, in which Simon France J upheld a two and a half year starting point, described as a lenient, for wounding with intent to injure, where the offender punched the victim in the head and hit him in the head with a bottle causing significant wounds to his face and neck.21

(e)Ms Taylor’s offending is comparable to that in Sheppard v R, in which the Court of Appeal adopted a two and a half year starting point for wounding with intent to injure, where the offender stabbed a security officer at  a bar in  the neck with  a small  screwdriver when asked    to leave the bar.22

[15]   Having regard to those cases, I would adopt a starting point for Ms Taylor’s wounding with intent to injure of two years and six months’ imprisonment. Although I might have broken it down differently, the overall uplift of 14 months for all the other offending in September 2022, including injuring with intent to injure, and August 2023, was not challenged and was not inappropriate. That leads to an overall starting point of three years and eight months’ imprisonment.

[16]In terms of reductions:

(a)The material in the affidavit of Ms Lisa Taylor indicates Ms Taylor grew up around family violence, with the women in her life being the victims of that violence, and was in abusive relationships and was abused herself. She watched her mother turn to alcohol to cope and did so herself. The deaths of her brother and best friend have severely impacted her mental health. Ms Taylor moved home with her mother and her family is helping her to heal. If Ms Lisa Taylor had been allowed to speak at the sentencing, as she should have been, I consider a discount of around 15 per cent, or seven months, as the Crown acknowledges, would have been appropriate.

21     Williams v Police [2017] NZHC 1299 at [4].

22     Sheppard v R [2013] NZCA 639 at [21].

(b)No issue has been taken with the five per cent reduction for Ms Taylor’s remorse, apology, and participation in restorative justice, which is around two months.

(c)The 25 per cent discount for the guilty pleas was generous but is not inappropriate and amounts to 11 months. Its generosity was balanced with by the Judge not taking into account the period Ms Taylor was on EM bail with a 24-hour curfew. That was also available, given that it resulted from Ms Taylor’s further offending.

[17]   Those total discounts of 20 months result in an end sentence, for the offence of wounding within intent to injure, of two years imprisonment. That compares with the sentencing Judge’s calculation of the end sentence as two years and four months’ imprisonment. The difference, of more than 15 per cent, is non-negligible and means the sentence imposed was manifestly excessive. The concurrent sentences for the other offences should also be reduced proportionately.

[18]   I do not consider the sentence of imprisonment should be converted to home detention. Ms Taylor’s violent offending while on bail counts against that, as does the volatile nature of her two sets of offending and the purposes of denunciation, deterrence, and holding her accountable for her offending. It would, however, be consistent with the purposes and principles of sentencing for Corrections to provide her with opportunities for counselling while in prison and in any post-release conditions.

Result

[19]I allow the appeal, quash the sentences, and instead impose sentences of:

(a)two years’ imprisonment for the offence of wounding with intent to injure; and

(b)concurrently, ten months’ imprisonment for the offence of injuring with intent to injure; and

(c)concurrently, seven weeks’ imprisonment for each of the other charges.

Palmer J