R v Taylor
[2023] NZHC 3124
•6 November 2023
PARTS OF THIS JUDGMENT HAVE BEEN REDACTED PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-012-91
[2023] NZHC 3124
THE KING v
JORDAN TAYLOR
Hearing: 18 October 2023 Appearances:
R D Smith and M Brosnan for the Crown
S A Saunderson-Warner and Ms Barker for the Defendant
Judgment:
6 November 2023
SENTENCING REMARKS OF HARLAND J
[1] First of all, I acknowledge those present here today. Sentencings of this kind are always very upsetting. There is nothing that can be said to make the tragedy of the loss of a life any better. This is particularly so given the circumstances of this case. I acknowledge all those present today who support the memory of Anita Taylor and those who support her son Jordan Taylor.
[2] I now address you Mr Taylor. You appear before the Court at the age of 18 having pleaded guilty to one charge of murdering your mother.
R v TAYLOR [2023] NZHC 3124 [6 November 2023]
[3] There is a process I must follow in sentencing you. This includes outlining a summary of your offending, that is what you did. I must also take into account the impact of your offending on your mother’s father (your grandfather) and her sister (your aunt). The law requires me to sentence you to imprisonment for life unless your offending and your personal circumstances mean that a sentence of imprisonment for life would be manifestly unjust.1 If I do sentence you to life imprisonment, then I must also order that you serve a minimum period of imprisonment, we call this an MPI.2 In your case, I must decide whether a minimum period of 17 years imprisonment for your offending is required or whether, in your case, it would be manifestly unjust to do so. In reaching my final decision about these matters, I will also take into account your personal circumstances, including the fact that you have pleaded guilty to this charge. In doing all of this, I must also refer to the principles and purposes of sentencing as they are set out in the Sentencing Act 2002 (Act) and other cases that are relevant to the issues I need to decide.
[4] When I get to the point where I need to refer to other cases, I will refer to them in passing in these remarks today but, where it is needed, I will include in my written sentencing remarks a fuller assessment of why I have decided these cases are either important or not so important to my decision. The reason I need to refer to case law is because fairness requires sentences of the Court to be consistent with other cases where the circumstances involved are similar.3
The offending
[5] I start by outlining what you did in the early hours of the morning on 14 January 2023 when you murdered your mother. And, in going through these, I appreciate and understand it will be distressing for others and perhaps also for you to have to listen to them again.
[6] The day before, on 13 January 2023, there was a decision that you would celebrate your 18th birthday. Your friend was invited around that evening to have drinks with you and your mother. Your friend was dropped off by his mother. After
1 Sentencing Act 2002, s 102.
2 Sections 103 and 104.
3 Section 8(e).
that, you said the evening went well with all of you drinking and having a good laugh. You drank five beers, about a third of a 13 per cent bottle of Vodka and five Vodka cruisers. By any account, this was a significant amount of alcohol.
[7] Your friend left at about 11.30 pm. This left you and your mother alone at home.
[8] You say that your mother’s mood then changed, and she began shouting and abusing you, and accusing your friend of stealing a Bluetooth speaker. You thought she was more affected by alcohol than you had seen her before. Unsurprisingly, you describe feeling pretty bad and being tearful. The outburst lasted about 15 minutes, after which you say your mother went to bed. You say you tried to calm her down by keeping quiet but began to feel more stressed and not “fully there”.
[9] You were distressed when you relayed to your psychiatrist what happened next. Your mother said she wanted to die, which is something you say you had not heard her say before. You thought she meant this and you found it very hurtful. You told your psychiatrist it was the worst thing that she had said to you. You say you told her to stop but she became madder and swore at you, calling you a liar. It was at this point you say you snapped. You uplifted a 10 kg dumbbell and went into your mother’s bedroom where she was lying in bed. Before that, you had turned out the lights in the hall. You then struck her several times to the head using the dumbbell. You said to your psychiatrist you felt as if you were not in control. You said what you did was impulsive and that you had never previously harboured any violent thoughts towards your mother.
[10] After this, you placed towels on the stove top and turned it on. You took a backpack containing a pair of underwear, t-shirt, a pair of shorts and a bottle of water and left your home address, leaving your cell phone and wallet behind. You walked four kilometres to a street in North Dunedin.
[11] At about 2.53 am, you went to an address on a street in North Dunedin and knocked on the door. You spoke to the owners of the address, who you did not know, and asked if you could use their phone. You used the phone to call the Police.
[12] From what you told the Police, they were aware of where you were in North Dunedin. You told them to go to your home address. During your phone call to the Police, at times you sounded lucid and coherent but at times you sounded upset and you were crying. You eventually told the Police that your mother was dead and that your assault on her was very serious, saying that it was a murder.
[13] At about 3.10 am, the Police went to your home address. The smoke alarm was beeping and there was a haze of smoke in the kitchen. Towels were smouldering on the stove. Your mother was found dead in her bed and the dumbbell was located on the floor in the hallway.
[14] At approximately 3.45 am, you were located on the same street from which you had made the phone call, wearing blood-stained clothing. You had waited for the Police to arrive and you were cooperative with them.
[15] There is, as we have heard today, a troubled and important background to what tragically took place in the early hours of 14 January 2023. While I will outline some of the details of this shortly, your actions that evening have deeply affected your grandfather and your aunt. This is very clear from their victim impact statements. I have gained a sense, from what they have told me that, as well as the pain and sadness they experience about what you did, both also mourn what might have been in terms of their future relationship with your mother, with whom both had complicated relationships; your mother was described as having a fiery temper and being quick to anger, resulting in erratic behaviour and her falling out with people. Although you are willing to attend a restorative justice conference, it is entirely understandable why neither your grandfather nor your aunt wish to participate in that process at this time.
Background to the offending
[16] This is a case where the background leading up to your offending is relevant context to the offending itself. There are aspects of it which highlight the challenges your mother faced. In mentioning them, I do not mean to blame her because she is the ultimate victim of your offending, you having caused her death. Certainly, I do not mention them to excuse what you did. Rather, they help in some way to explain it.
[17] You are an only child. Your parents separated when you were two years of age. You have not had a relationship with your father, it is said, because your mother did not permit it. However, you have recently established contact with your father and other members of your paternal and your maternal family. I have carefully read the affidavits provided by both your father and your mother’s cousin. Both have large extended families, and they are committed to assisting you while you inevitably serve the term of imprisonment that must follow and once you are released. I will say more of this shortly, but I am satisfied that their offers to support and help you are genuine. It is a tragedy that, for whatever reason, you were not able to establish a proper relationship with your father or his family while you were growing up or that you were not able to have more contact with your extended maternal family.
[18] I have read the psychological and psychiatric reports prepared on your behalf and prepared for the Court very carefully as well. There is also a report prepared under s 27 of the Sentencing Act. All of these reports have helped me to understand the background to your relationship with your mother. It is very clear from these reports that your relationship with your mother was complicated and co-dependent. Your relationship together was very internally focused in the sense that there were not many other people from the outside world, either friends or family, who interacted with your lives. You moved addresses several times which made it difficult for you to form friendships, and you attended several schools. It seems clear that your mother struggled financially, emotionally and probably psychologically. For some time prior to her death, she had not been employed and may well have been depressed.
[19] You struggled at school. It seems that you struggled with the social aspects of schooling due, in part, to anxiety but, despite this, you did well academically until your NCEA level 2 year, most likely because of what happened at the beginning of 2021. But, you developed a friendship with one person at high school, the person who attended your birthday celebration on 13 January this year.
[20] There are matters which relate to your background to which I now refer that, by operation of law, must remain suppressed. This means, as I have already outlined
to all present here today, including members of the family, that they all are prevented from referring to them publicly.4
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[35] By January 2023 however, both you and your mother were again extremely isolated. Neither of you were working and you were not attending any courses. It
4 The reasons for my ruling on this are outlined in my Minute of 17 October 2023.
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does not appear that either of you had any hobbies, played sports or were involved in community groups. Neither you nor your mother drove. You were having virtually no social contact, either in person or by social media, and your only friend, who attended your birthday celebration, said in his statement to the Police that you would spend most of your days in your bedroom on your own. On 7 January 2023, your friend went to your house at about 10.00 pm because he had not heard from you for about three weeks and he was worried about you. You spent time with your friend on an outing on 9 January 2023.
[36] As I have outlined, and it is regrettably necessary to say, the relationship between you and your mother was characterised by her being verbally, emotionally and psychological abusive towards you while, at the same time, being protective of you and loving towards you. These matters are referred to in the psychiatric, psychological and s 27 reports prepared on your behalf. As well as this, the psychiatric report considers it probable that you had developed a depressive illness in the months before your offending and has highlighted that you had issues of social anxiety and low self-esteem. As well, the psychiatrist considers there is evidence of post-traumatic symptoms following the 2021 incident.
[37] The psychologist’s opinion is that your relationship with your mother was highly abusive and that you were the victim of child maltreatment for significant portions of your life. With reference to academic, psychiatric and psychological literature dealing with the killing of a parent (parricide), the psychologist noted that, of the identified three types of such offenders, the most common type of youth offender in these situations is committed by someone who has been severely abused.
He cited papers stating that such youth offenders:7
“see no way out of their situation except to kill their abuser” and
“Where severely abused parricide offenders kill to end the ongoing abuse, enraged parricide offenders kill out of long-standing rage connected to previous abuse, triggered by an external event, sometimes facilitated by alcohol and drugs.”
7 Defence submissions dated 3 October 2023, para 44.
[38] The psychologist suggested this explanation was a reasonable fit for you. He also referred to literature which notes that, in this kind of offending, young people usually kill their parent while alone and while their parent is in a non-aggressive position, such as sleeping.
[39] I reiterate that these matters are background context to your offending, which do not excuse but seek to explain why it may have happened.
Sentencing approach
[40] I now address the approach the law requires me to take in sentencing you because you have pleaded guilty to murder. I am required to sentence you to imprisonment for life unless the circumstances of the offence and your circumstances mean that a sentence of imprisonment for life would be manifestly unjust.8 If I decide that you should be sentenced to life imprisonment, I must also order that you serve a minimum period of imprisonment, or the MPI I have already referred to. An MPI may not be less than 10 years but it must be the minimum term of imprisonment that I decide is necessary to hold you accountable for the harm you have done to your mother and the community by your offending, denounce your conduct, deter you and others from committing the same or similar offence, and protect the community from you.9 In some circumstances, a minimum period of imprisonment of at least 17 years must be imposed unless it would be manifestly unjust to do so.10
[41] There are now some legal matters that I need to briefly address to explain the order of the matters I must now address. Mr Taylor, your lawyer will explain to you why this is important. I say this because the next matters I talk about refer to sections of the Sentencing Act that apply in your case and to the order in which I should address them.
[42] I agree with both lawyers that the proper approach to adopt, in terms of the inter-relationship between the matters outlined in ss 102 and 104 of the Act is to
8 Sentencing Act 2002, s 102(1).
9 Section 103(2).
10 Section 104.
address them in order outlined in R v Smith.11 This means that the first question I must address is whether s 104 is engaged and, if it is, whether an MPI of 17 years would be manifestly unjust. I will then turn to consider whether the presumption of life imprisonment is displaced, pursuant to s 102 of the Act. This approach is, in my view, necessary because, as the Court of Appeal said, the decision on the implications of s 104 will usually influence, but not determine, the assessment of whether or not the presumption in s 102 is able to be displaced.
Is s 104 engaged in this case?
[43] One of the circumstances which requires the Court to impose a sentence of at least 17 years of imprisonment is where a murder was committed with a high degree or level of brutality, cruelty, depravity or callousness.12 In this case, the Crown submits, that applies.
[44] The lawyers referred me to various cases to help me make my decision about whether what you did was particularly brutal and/or callous.13 I record that I have been assisted by their submissions about comparable cases and their analysis. I have read them and considered them all in reaching my decision. I am not going to go through my analysis now but it will be in my written sentencing notes. But, I have reached the view that the decision of Van Hemert v R is distinguishable.14
[45] With the exception of Van Hemert, which I specifically address shortly, the cases I was referred to15 outline circumstances where the Court has determined that the offending was brutal and callous, and therefore s 104(1)(e) was engaged. It is important for counsel to refer the Court to cases to support their submissions but it is not so important for me, in the context of this case, to analyse each of them specifically and in detail because whether a murder was committed with a high degree or level of brutality or callousness depends on the facts of the case.
11 R v Smith [2021] NZCA 318.
12 Sentencing Act, s 104(1)(e).
13 Carroll v R [2018] NZCA 320; R v Frost [2008] NZCA 406; Wallace v R [2010] NZCA 36; Skilling v R [2011] NZCA 462; R v Uluakiola CA123/06, 6 December 2006; R v Smith [2016] NZHC 2581; R v Marinovich [2020] NZHC 1160; R v Ford [2020] NZHC 2579; R v Findlay [2017] NZHC 2551; Van Hemert v R [2023] NZSC 116.
14 Paras [45]–[50] of this judgment were not read out in Court.
15 Van Hemert v R, above n 13.
[46] In relation to Van Hemert v R16 however, some further comment is required. Ms Saunderson-Warner submitted that applying Van Hemert, which she submitted introduces the concept of subjectivity into the assessments of whether the offending was brutal or callous, I must consider whether Mr Taylor appreciated the brutality of his actions or the vulnerability of his mother. She submitted that, applying this test, s 104(1)(e) is not engaged.
[47] In Van Hemert v R, Mr Van Hemert had become very mentally unwell. After his ex-partner sought help from the local mental health authority and in consultation with his brother, Mr Van Hemert’s mental health was to be managed with medication and an attendance at Hillmorton Hospital the next day. In the early hours of the morning however, Mr Van Hemert picked up a sex worker and murdered her by stabbing her with a knife and using a rock to cause blunt force injuries to her head. The Court considered that his culpability was moderated by the fact that he was suffering psychosis at the time. Further, Mr Van Hemert’s threat perception and judgment was considered to lessen his culpability compared to “someone able to accurately assess and take advantage of a victim’s vulnerability”.17 The victim’s vulnerability was therefore viewed subjectively, through the lens of the offender.
[48] In relation to this case, Ms Saunderson-Warner referred to Mr Taylor’s report to Dr Barry Walsh that, after one blow, he could see his mother’s head was “caved in” and she was in a “vegetable state”. He also said to Mr Metoui that, after the first blow:
… the state she was in, damage already done. Her skull was caved in and she was unconscious. Even though she was alive, I don’t think she would have survived it. I think I hit her four or more times to finish her life. With additional blows, I told myself I put her out of her misery but I also think it was to do with pressure and frustration.
[49] For the above reasons, Ms Saunderson-Warner submitted the repeated blows could not be interpreted as brutality if examined through Mr Taylor’s lens or certainly not to a sufficiently high level of brutality which, she submitted, would be required to trigger s 104(1)(e).
16 Van Hemert v R, above n 13.
17 Van Hemert v R, above n 13, at [69].
[50] I am not persuaded that the degree of subjectivity referred to in Van Hemert is engaged in this case. The attack undertaken by Mr Van Hemert was moderated by the fact he was suffering psychosis at the time. There is no suggestion of any psychosis here or mental or psychological impairment that would moderate what in fact happened.
[51] I have reached the view that your offending can be described as particularly brutal. I am less convinced, given your past, that it was callous. In reaching this decision, I have taken into account that the victim was your mother, that she was vulnerable at the time because she was in bed, that the weapon you used was bound to cause significant harm to her given that you aimed it at her head and the number of times that you struck her and because of the nature of the weapon you used, which could not normally be characterised as a weapon, when it was used to attack your mother’s head, resulted in her suffering extreme and extensive injuries.
[52] You also attempted to hide what you had done by lighting a fire on the hob. Although you left the house with a bag, very shortly afterwards you reflected on what you had done and contacted the Police. Viewed in the round, I consider your attempts to hide what you had done are more consistent with a panicked or shocked response rather than a deliberate thought-out attempt to hide or destroy evidence of your offending. My view about this is supported by the fact that you finally rang the Police and admitted what you had done.
[53] What that means however is that I have decided that a minimum period of imprisonment of 17 years is the starting point I adopt.
Would it be manifestly unjust to impose an MPI of 17 years?
[54] I now need to consider whether it would be manifestly unjust to impose a minimum period of imprisonment of 17 years on you. And I note that the Crown acknowledges that it would be, given the matters that relate to you personally, which are referred to as mitigating matters. These are matters which may lessen the seriousness of your offending.
[55] The Crown acknowledges that there are a number of personal mitigating features upon which you can properly rely. They include your guilty plea and your youth. Your lawyer has also referred to your background, mental health and remorse. Based on the Crown submissions, an allowance overall for mitigating matters would reduce the MPI of 17 years’ imprisonment to one of 11 to 11 and a half years’ imprisonment. Your lawyer submits that these factors should reduce the MPI to 10 years’ imprisonment.
Guilty plea
[56] I first address your guilty plea. The Crown submits only 18 months, or nine per cent, credit should be allowed for your guilty plea because you did not admit responsibility for the death when you called 111 and because the evidence against you was overwhelming. Your lawyer submits that a two year, or 16-18 per cent, credit ought to be applied.
[57] I agree with your lawyer. In my view, you gave sufficient information to the Police when you telephoned them to alert them to the fact that your mother’s body was in the house. You gave them her name, your own name and you waited for the Police to arrive and arrest you. You have never denied responsibility for murdering your mother and you entered an early guilty plea to the charge. By doing this, you have saved your mother’s family the trauma of a trial.
[58] As well as this, I accept that you are extremely remorseful for what you have done. This is evident from those who have discussed your offending with you in depth, including the psychologist, psychiatrist, s 27 report writer and the pre-sentence report writer. I quote what you said to the s 27 report writer, Ms Oakley, because it shows the depth of your remorse and it is important for others to hear it. You said this:18
I think about her every day. I never meant to express any hatred towards her. She was the only person in the world that I loved. I feel awful for what I did. I feel deep remorse for my family, and I hope that they can forgive me. I feel so in pain from what I have done that it is so hard to even process my feelings about it. I hope maybe she is in a better place. I want to make sure to become a better person in prison and I want to make sure that through my journey in prison, I do that. I’m going to try and change a lot of my behaviour. I think
18 Defence submissions dated 3 October 2023, at para 79.
alcohol had a big part to play in this and I promise to not ever drink again. And I’m going to address a lot of my personal demons, by getting some professional help.
[59] Mr Taylor, it took a lot of courage and a considerable amount of reflection, I am sure, to have reached the position where you felt you could express these matters and it seems to me that you understand some of the reasons why you did what you did. There are many adults who are unable or unwilling to reach the conclusions you have reached and you deserve considerable credit for this.
[60] I also agree with your lawyer that you have not sought to blame your mother for what you did. You fully appreciate your responsibility for it and have acknowledged the harm that you have caused.
Youth, mental health and background
[61] I agree that, for you, these matters are all related, that is youth, mental health and background, to each other and they overlap. Your age at the time you offended speaks for itself. I accept that you were overwhelmed and unable to cope with what happened after you had experienced what was an unusual event in your life, an enjoyable evening with your friend and your mother, on top of which you were celebrating a very special occasion, your 18th birthday.
[62] The psychiatrist assessed you as immature and naive which he said means that you are less well equipped than most people of your age to manage conflict and life’s ups and downs, particularly its downs. I acknowledge that, because of this, it would have been very difficult for you to reconcile the enjoyable time you had had with your friend and mother with what you say she said to you after that.
[63] The Crown accepts that the manner of parenting you experienced is relevant to your blameworthiness, or culpability, for your offending. This concession is made despite any formal diagnosis of any mental disorder. Although not justifying a credit as there was no provocation and you could have walked away from the situation, the Crown accepts that your mother’s behaviour on the evening is a relevant matter in relation to the assessment of your overall blameworthiness for the offending.
[64] I accept that, having just turned 18 years of age with this background, you were ill-equipped to deal with the circumstances as they presented themselves to you. I agree that you were overwhelmed and unable to deal with the situation as a mature adult or even a more mature 18 year old might have. Despite this however, you were affected by alcohol which is not, at law, a mitigating circumstance. But, undoubtedly, your consumption of alcohol that evening impacted on your decision-making.
[65] There is also the fact that you have not had available to you through your life your father’s Cook Islands kopu tangata and were therefore deprived of that part of your background, through no fault of your own.
[66] I also take into account that there is the prospect of rehabilitation if you are prepared, as you said you are, to accept long-term counselling and help to address the trauma of your childhood and young adult life experiences. I acknowledge that you are willing to accept whatever help is offered to you and I urge you to do so. Your life experiences so far will require you to address many painful matters in order for you to move forward in your life in a positive way. Whether they can be overcome and to what extent remains to be seen but I acknowledge that you are very motivated to change and seek help. I also acknowledge the unconditional support of your father, his family, your mother’s cousin and perhaps your mother’s family, and the support and help they are prepared to give you during your sentence and afterwards. Your friend appears also to be here for you. Their support will help you over the years to come. But I reiterate, the work you will need to do will be probably life long.
[67] The Crown submits a four year deduction, or 24 per cent, is warranted; your lawyer submits five years, or 29 per cent. I consider five years, 29 per cent, is more appropriate.
Conclusion on mitigating deductions
[68] I adopt a seven year deduction for all mitigating matters, being two years for your guilty plea and five years for your youth and background, including your mental health and additional remorse.
[69] From the minimum period of imprisonment of 17 years, the allowances I have determined are appropriate would result in a notional MPI of 10 years’ imprisonment. To be clear, I agree with the lawyers that an MPI of 17 years’ imprisonment would be manifestly unjust.
Is the presumption of life imprisonment displaced?
[70] Having reached that view, I must now decide whether the presumption of life imprisonment is displaced in your case.19 The legal test is whether, given the circumstances of your offending and your circumstances, a sentence of imprisonment for life would be manifestly unjust and, because you are only 18 years of age, I must consider this question very carefully.
[71] The lawyers again referred me to cases to help me to decide this question20 and I don’t intend to go through those now but they will be in my written judgment.21
[72] The Court has held that the threshold to displace the presumption of life imprisonment created by s 102 is high and only likely to be met in exceptional circumstances.22
[73] The Court of Appeal in Dickey v R returned to the meaning of manifest injustice in the context of s 102 and, having reviewed the relevant authorities, said:
[167] This brief survey demonstrates that the term “manifest injustice” has come to have a generally consistent meaning under the Act:
(a) It requires that the instant case be “exceptional” in the sense that it justifies departure from legislative policy.
(b) It requires that the injustice be manifest, that is, clear.
(c) Each case must be assessed on its own merits, having regard to the full register of sentencing purposes, principles and factors, and qualifying cases need not be rare.
19 Sentencing Act, s 102.
20 Dickey v R [2023] NZCA 2; R v Nelson [2012] NZHC 3750; R v Simeon [2021] NZHC 1371; R v TH and HH [2023] NZHC 630; Van Hemert v R, above n 13; R v Rihia [2012] NZHC 2720; R v Wihongi [2011] NZCA 592.
21 Paras [72]–[77] of this judgment were not read out in Court.
22 R v Williams [2005] 2 NZLR 506 (CA) at [67], referred to in Dickey v R, above n 20, at [157].
[74] In Dickey, the Court recognised that whether a sentence of life imprisonment is manifestly unjust is to be assessed as a matter of overall impression and each case is to be assessed on its own merits. The presumption can be displaced if a defendant can point to both mitigating factors of the offending and a combination of substantial mitigating factors personal to him or her that would make a sentence of life imprisonment manifestly unjust.23
[75] I acknowledge your counsel’s submissions24 that, up until the recent decision of Dickey v R, there had only been 12 cases in the past 20 years where the presumption in favour of life imprisonment has been displaced.25 Of those 12, youth had been a factor in only two cases: R v Nelson ˗ a case of extreme youth where a 13 year old shot and killed the partner of his caregiver; and R v Simeon – a case involving an 18 year old woman who stabbed her partner once in the neck during an argument.
[76] I was also referred to the recent case of R v TH & HH26 where a defendant aged 20 years at the time of the offending had entered a guilty plea to murder and Brewer J found the presumption in favour of life imprisonment had been displaced. However, I agree with Crown counsel that a distinguishing feature in that case was that Brewer J found that the circumstances involved a reckless rather than a deliberate murder and that the defendant had also been exposed to gangs, violence, drugs and poverty in his own home which he also considered were material to the defendant’s blameworthiness for the offending.
[77] A distinguishing factor in respect of all these cases, including in Ms Dickey’s case, where s 102 has been displaced, is that, in each case, the offender was a party to the murder or the murder was reckless as opposed to a deliberate killing. Mr Taylor was the principal offender here, not a party.
[78] No two cases are the same and it seems somewhat distasteful to have to compare these sorts of cases. But, in your case, I have concluded that what you did was deliberate not reckless, despite the background matters to which I have referred.
23 Dickey v R, above n 20, at [195]–[196].
24 Defence submissions, at para 93.
25 Dickey v R, above n 20, at [152].
26 R v TH & HH, above n 20.
[79] Ultimately, the question is whether it would be manifestly unjust to impose a sentence of life imprisonment. This means the injustice in imposing life imprisonment must be clear and the assessment must be undertaken bearing in mind the purposes and principles of sentencing.27
[80] Your lawyer highlighted your youth, the circumstances of the highly abusive relationship with your mother and psychiatric and psychological issues that have flowed from that. […] I take into account as well that, because of this relationship and with no other adult supports in your life, you had very little, if any, capacity to leave what was objectively speaking an abusive relationship. You told the psychologist that you felt your situation was hopeless and one without solution.
[81] Your lawyer referred me to cases involving “battered defendants” where the presumption of life imprisonment has been displaced.28 I am grateful for her analysis of these cases and, again, I have considered them carefully. However, although there were some similarities, as is often the case, there are differences. In R v Wihongi, there were cognitive deficits and in R v Rihia, as well as complex PTSD, there were personality disorders.
[82] […]
[83] I have found this decision extraordinarily difficult. On the one hand, there are the mitigating factors I have referred to in detail. […] Even though you are young and now appear to have significant family support, whether you can overcome the trauma of your past remains to be seen. I hope you can but, without further certainty, in my view, there remains the need to protect the community, in this case, from others who you may become close to. When I refer to the need to protect the community, I am not talking about the community at large. I am talking about people who you might enter close domestic relationships with in the future.
[84] By a very narrow margin, I am not persuaded this is a case where it would be manifestly unjust to impose a sentence of life imprisonment. In reaching this decision, I have regard to the circumstances of the offending, the need to hold you accountable
27 Van Hemert v R, above n 13, at [62]; Sentencing Act, ss 7, 8 and 9.
28 R v Rihia, above n 20; and R v Wihongi, above n 20.
for it, to denounce it and to protect those, as I have said, with whom you may have future domestic relationships. I therefore impose a sentence of life imprisonment with an MPI of 10 years.
[85] Had I decided to impose a finite term of imprisonment, the outcome, as I analysed it, would have been virtually the same, namely an end sentence of 10 years’ imprisonment. The difference would have been the time in respect of which you would have been eligible for parole. The sentence I have imposed means that you will be required to have official oversight for the remainder of your life to varying degrees depending on how you respond to the rehabilitation opportunities that will be afforded to you. This does not mean there is no hope for a better future for you. If you take advantage of the opportunities presented, there will be no need for the level of oversight to be unnecessarily restrictive. But, in my view, such a backstop is required.
Should a firearms prohibition order be imposed?
[86]I now have to consider whether a firearms prohibition order will be imposed.
And I set out in my written notes the various matters that must be considered.29
[87] Where a firearms prohibition order is imposed, an offender is prohibited from accessing, possessing or using any firearm or related item.30 The court can impose a firearms prohibition order when sentencing an offender for one of the specified offences under s 39A and who was aged 18 years or over at the time the offence was committed.31 Murder is a specified violent offence as defined in s 4 of the Victims’ Orders Against Violent Offenders Act and, because your offending was two days after your 18th birthday, this section applies to you.32
[88] The court must be satisfied that, on the balance of probabilities, a firearms prohibition order is necessary, reasonable and appropriate to assist in managing the risk that the offender poses to public safety.33
29 Paras [87]–[91] of this judgment were not read out in Court.
30 Arms Act 1983, s 39B(1).
31 Section 39A.
32 Section 39A(1)(a)(ii).
33 Section 39A(2).
[89] The Act outlines standard conditions of a firearms prohibition order and enables the court to impose any special conditions reasonably necessary to prevent the offender from accessing, possessing or using firearms.
[90] The firearms prohibition order would begin once you are released from custody.34 It continues for 10 years unless it is revoked sooner.35
[91] The Crown submits that, because your offending involved you using a readily accessible weapon to commit a brutal killing, you might pose a risk to public safety if you were able to access firearms. The Crown acknowledges firearms were not a feature of your offending, nor had you previously possessed or had access to any firearms.
[92] I am not satisfied that a firearms prohibition order is necessary, reasonable and appropriate in your case.
Result
[93]Mr Taylor, could you please stand.
[94] Mr Taylor, I sentence you to life imprisonment with a minimum term of 10 years.
[95]I decline to make a firearms prohibition order.
[96] The detail of the victim’s sister’s name, address and occupation are suppressed and the suppression orders that I have already outlined are to apply.
Harland J
Solicitors:
Crown Solicitor, Dunedin
S A Saunderson-Warner, Barrister, Dunedin.
34 Section 39F(2).
35 Section 39F(2).
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