R v Taylor

[2020] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-012-002167

[2020] NZHC 3174

THE QUEEN

v

RUAIRI KERN TAYLOR

Hearing:

2 December 2020

Appearances:

R P Bates for Crown

S A Saunderson-Warner for Defendant

Judgment:

2 December 2020

SENTENCING NOTES OF DUNNINGHAM J

[1]    Mr Taylor, you are here for sentence today having pleaded guilty to three charges. They are:

(a)attempt to cause grievous bodily harm;

(b)assault with a weapon; and

(c)intentional damage.

[2]    The facts of the offending are somewhat unusual. On the afternoon of Wednesday, 4 September 2019, you left your employment at a business in Tapanui, Southland. You then went to a hardware store and purchased a tomahawk axe. You

R v TAYLOR [2020] NZHC 3174 [2 December 2020]

then went to your home address in Gore and retrieved a sheathed dive knife which you strapped to your leg. You left Gore, travelled north in your Subaru Forrester vehicle. Soon after leaving Gore, you saw an unmarked police patrol car travelling south. You turned around and followed it until it went into the Gore police station. You then turned and began driving north again. Shortly after 6 pm, a police officer in full uniform was in  a  marked  patrol  car  which  was  stationary  on  the  verge  of  State Highway 1, near Allanton, Dunedin. The patrol car was parked immediately behind a vehicle that the officer had stopped, and the red and blue lights were activated.

[3]    On seeing the patrol car, you turned religious music up loud on your car stereo and then you deliberately drove your vehicle into the back of the patrol car, while the police officer was still in the driver’s seat. The impact caused the officer’s head to snap back into the headrest of the driver’s seat and then rebound from the windscreen. His car was shunted forward by the impact and collided with the rear of the vehicle he had stopped, causing damage to the rear bumper bar.

[4]    You then got out of your vehicle with the tomahawk and you used it to smash the rear driver side window and then the driver’s window, while the officer was still in the driver’s seat. He called for assistance before escaping through the passenger door. You then chased him down the verge of the state highway for approximately  40 metres with the tomahawk raised above your head, before giving up the chase. Throughout this attack, you were yelling “Allahu Akbar”. A member of the public picked up the officer and drove him away from the scene.

[5]    You then returned to the patrol car, smashed the headlights and with the tomahawk made holes in the metal panels of the vehicle. You then went inside the car, began rummaging through its contents, put on the officer’s police uniform hat and jacket that had been left in the patrol car and began yelling religious material from the Quran, which you had in your possession. Police arrived, and you were arrested.

[6]    As a result of the assaults, the victim suffered minor whiplash, a bump on his forehead, and a sore arm.

[7]    When you were questioned, you admitted the facts as outlined. You said you were not a practising Muslim, but you wanted to commit suicide. You said you wanted to be shot by police and thought you could achieve this by intentionally ramming the police car and threatening the victim with the axe. You said you were not trying to injure the victim, and that if you had wanted to, you could have.

Victim impact statement

[8]    I have heard the victim impact statement of the police officer involved. Understandably, he says that what he experienced was something he would not want any person to go through. He says he genuinely believed that his life was at risk and you intended to kill him. He finds it concerning that he was targeted as a member of the police who intend to help people in the community who are facing problems and difficulties. He also has had difficulty dealing with the fact he was in a situation where he was forced to prioritise his own life, when he was concerned there were other members of the public who were potentially at risk. He has shown considerable courage and fortitude to deal with the whole experience.

[9]    I also consider that, in a tangential sense, the Muslim community is a victim of your offending. While your offending was not directed at that sector of our community, it was nevertheless harmful to them. By trading on public fears about attacks by extremist Muslims to generate fear in this case, you have indirectly harmed New Zealand’s community of law-abiding Muslims.

Starting point

[10]   In sentencing you today, I will first set a starting point of imprisonment looking at the seriousness of the offending. Second, I will look at your personal circumstances and then decide the extent to which they should reduce the starting point.

[11]   The two most serious charges are the charge of attempt to cause grievous bodily harm (GBH) and the intentional damage charge, as both carry a maximum penalty of seven years’ imprisonment, but for the purposes of sentencing, I take the attempt to cause GBH as the lead charge.

[12]   As counsel point out, there is little guidance in sentencing for this charge. While I can use a guideline judgment in R v Taueki, to help identify aggravating factors, the sentencing bands in that case are of little relevance because it carries double the maximum penalty.1

[13]   On the charge of attempting to cause GBH, both counsel referred me to the case of R v HLH and THH, which involved two young offenders, aged 14 and 16, who attacked a police officer who attended their home in response to an incident.2 The oldest pulled a knife and lunged towards the officer with the blade extended, but was restrained by family members before the blade could connect with the officer’s face. The other attempted to attack the officer with a machete, but the officer managed to deflect it with a baton on two occasions. Heath J assessed that offending as “close to the worst of its type”, because death could have resulted if any of the intended blows had been successful.3 He also noted it was a sustained attack, it involved weapons, manual blows to the head and there were two offenders acting together, and finally, it was an attack on a law enforcement officer. A starting point was adopted in that case to reflect the totality of the offending, of six years and eight months for both offenders.

[14]   Having regard to that decision and the more general guidance in Taueki4 as to what constitutes aggravating factors for that type of offending, I consider the aggravating features of your offending were, first, and primarily, the fact that the victim was a police officer who was acting in the course of his duty at the time of the offending.5 I also consider that the use of a tomahawk, which is a potentially lethal weapon, was a further aggravating feature. While I accept as your lawyer says that weapons are commonly used in GBH related offending which is why it carries such high penalties, the type of weapon used here was relevant. It was readily able to cause a fatal injury and it is understandable that the officer believed you were going to kill him.

1      R v Taueki [2005] 3 NZLR 372 (CA).

2      R v HLH and THH HC Hamilton CRI-2010-219-343, 13 December 2011.

3 At [30].

4      R v Taueki, above n 1.

5      Sentencing Act 2002, s 9(fa).

[15]   I also take into account the emotional and physical harm that is caused by your offending. While your lawyer says it is effectively inherent in the level of the offence charged, I consider the dilemma that the officer felt, between his duty to protect the public and the need he felt in the situation to protect his own life, is not present in most such cases. I also accept that there was premeditation in your offending. You purchased the tomahawk and you equipped yourself with the dive knife well in advance of the offending. You also clearly planned the use of religious props to heighten the victim’s concern that there was a terrorist-style threat in this incident.

[16]   Taking these factors into account, I consider that this is a case which is mid to high range example of attempted GBH offending and a starting point of four years is appropriate.

[17]   I then have to consider how much I should uplift the starting point to reflect the offences of assault with a weapon, which reflects the use of your motor vehicle to ram the police officer’s car, and intentionally damaging the police vehicle. In respect of the assault with a weapon, the Crown has provided two comparable cases, one Petryszick v R,6 where a sentence of two years’ imprisonment was imposed on the defendant for hitting a cyclist from behind with sufficient force to throw him off his bicycle. The other, Roberts-Tuahuru v Police,7 where a starting point of 12 months’ imprisonment was held to be within the available range, when the appellant rammed the victim’s vehicle hard enough to push it onto the verge of the road alongside a deep ditch.

[18]   I consider the aggravating features of this offending are the entirely unprovoked nature of it, the fact it caused some, albeit minor, injury to the victim and, again, the fact it was aimed at a police officer in the course of his duty. In my view, this offending, on its own, would readily warrant a sentence of 18 months.

[19]   Finally, the charge of intentional damage takes into account the sustained and extensive damage which was inflicted on the officer’s vehicle. It was not just the damage caused by the initial ramming (which is part and parcel of the assault with the

6      Petryszick v R [2011] NZCA 99.

7      Roberts-Tuahuru v Police [2019] NZHC 1444.

weapon charge and, alternatively, could be seen to be an aggravating feature of that charge), but it includes the use of the tomahawk to smash windows while the victim was still in the driver’s seat, and then the further damage inflicted to the headlights and metal panels of the car causing $32,090.26 of damage, as well as consequent damage to the other car of approximately $1,000.

[20]   The maximum penalty for this charge is seven years’ imprisonment. The only comparator case I was referred to was Fortune v Police, where a disqualified driver was involved in a police chase after driving away from a routine traffic stop, in the course of which he rammed into the police car causing damage.8 In that case, the starting point imposed was two years and six months’ imprisonment for the intentional damage offence, but it took into account prior convictions as well as “appalling driving on the night”.9

[21]   So, I am satisfied that in this case, a sentence of 18 months’ imprisonment would be warranted on this charge.

[22]   While that would result in a total starting point of seven years’ imprisonment, I accept as your lawyer says, that the three offences all arose in one connected incident and I have to have regard to the principle of totality. In my view, an overall starting point of five and a half years’ imprisonment is appropriate to reflect the totality of the offending.

[23]   I now turn to the mitigating factors relevant to you. The primary mitigating factor is, of course, your guilty plea. While the evidence against you was compelling, and your guilty plea on the first charge followed a significant adjustment to the severity of charge you faced, the Crown does not argue that  you should receive less  than a 25 per cent discount and, I grant that.

[24]   The Crown also acknowledges that some discount should be afforded for personal circumstances but, goes no further than that. Your lawyer, however, argues that you are entitled to a discount for your youth, your previous good character and

8      Fortune v Police [2019] NZHC 3500.

9 At [32].

for mental health issues. While your lawyer acknowledges, at 24, that you are probably at the cusp of being too old to receive a discount for youth, she says it should apply in this case because you have never been to prison before, and you have positive personal characteristics and good prospects for rehabilitation.

[25]   She also says that your previous good character warrants considerable credit as you have no prior convictions.

[26]   Finally, she seeks a discount for what she describes as mental health issues. To assist me on that issue, I have a report prepared last year from a registered clinical psychologist, Ms Jayde Walker, from the Department of Corrections. She notes that you do not present with any particular mental health conditions, but there is a recommendation that you be followed up in respect of a range of possible mental health diagnoses, including, autism spectrum disorder without intellectual impairment; borderline personality disorder; generalised anxiety disorder; and major mood disorder, and I am encouraged to hear from your lawyer today that those are being investigated.

[27]   I accept, as your lawyer says, that while there is not a clear diagnosis in this case, there are concerns about your mental health and the offending would not have arisen if you had been better equipped to cope with stress, and if you had not reached such a depressive state that you wanted to commit suicide. As the report writer says, the violence against the victim in this case appears to have been an emotionally driven, instrumental means of attempting to inflict indirect harm on yourself, rather than committed out of any sense of personal grievance towards the victim or the police per se. I accept, therefore, there is a causative link between those mental health concerns and the offending which occurred.

[28]   In my view though, at 24 years of age you are not entitled to a discount for youth, nor in this case, one for good character. A mere absence of convictions in a young man, does not of itself, reflect good character. Furthermore, since being remanded in custody, you have accrued a conviction for assault with intent to injure. More concerningly, you have shown no real remorse for your offending which points against your good character and your rehabilitative potential. This is clearly noted by

both the pre-sentence report writer, as well as the psychologist. However, that aggressive behaviour and your lack of remorse may be manifestations of underlining mental health issues. In my view, you are entitled to a 15 per cent discount for mental health issues, plus the 25 per cent discount for your guilty plea. That results in an end sentence of three years and three months’ imprisonment.

Reparation

[29]   The Crown also seeks an order for reparation in respect of the damage to the police vehicle. Your lawyer says given your uncertain future earning potential, it would be unrealistic to award the full amount and the Crown acknowledges that. She says that a beneficiary would usually pay $20 a week and, considering a reasonable time to be repaying may be up to two years following release, she says that $2,000 should be the maximum appropriate award.

[30]   I consider it is appropriate that there is some award of reparation to reflect the extensive deliberate damage which was done to the police vehicle. However, any such award must be realistic. I adopt your lawyer’s proposal of an award of $2,000, with payments to commence on your release from prison at $20 a week in the first instance, but to be reviewed when, and if, you gain employment. Given the modest contribution this is to the actual damage, and the fact I have taken into account this aspect of sentencing when considering the totality, no other adjustment to the sentence is required.

Sentence

[31]   Mr Taylor, would you please stand. On the charge of attempting to cause grievous bodily harm, you are sentenced to three years and three months’ imprisonment. On the charges of assault with a weapon and intentional damage, you are sentenced to 18 months’ imprisonment, to be served concurrently with the charge of attempting to cause grievous bodily harm. You are also ordered to pay $2,000 in reparation to the New Zealand Police, on the charge of intentional damage, with payments to commence on your release from prison.

[32]You may stand down.

Solicitors:

RPB Law, Dunedin

S A Saunderson-Warner, Barrister, Dunedin