R v Taylor
[2018] NZHC 2170
•23 August 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2018-063-000085
[2018] NZHC 2170
THE QUEEN v
KALLY JOSEPH TAYLOR
Counsel; D R Davies and E R Pairman for Crown T C Thackery for Defendant Sentence:
23 August 2018
NOTES ON SENTENCE OF COLLINS J
Introduction
[1]Mr Taylor, you appear for sentencing on the following charges:
(1)one charge of aggravated robbery;1
(2)one charge of indecent assault;2
(3)two charges of kidnapping;3
(4)one charge of attempted rape;4
1 Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.
2 Section 135; maximum penalty seven years’ imprisonment.
3 Section 209; maximum penalty 14 years’ imprisonment.
4 Section 129(1); maximum penalty 10 years’ imprisonment.
R v TAYLOR [2018] NZHC 2170 [23 August 2018]
(5)one charge of rape;5
(6)one charge of unlawful sexual connection;6 and
(7)one charge of robbery.7
[2]This afternoon I will:
(1)set out your offending;
(2)explain the impact of your offending on the victim;
(3)explain your previous offending and personal circumstances;
(4)ascertain the appropriate determinate sentence;
(5)explain the effect of the three strikes regime;
(6)determine whether to impose a sentence of preventive detention; and
(7)give you your final sentence.
Summary of offending
[3] The victim of your offending is a 71-year-old woman who lives alone in Palmerston North. You had never met the victim before the events of 13 October 2017.
October 2017 offending
[4] On 13 October 2017, at about 9.20 am, the victim was working in her backyard when you came onto the property armed with a knife. You grabbed the victim and held the blade to her face to make her go into her house with you. Once inside you told her to hand over her bank cards. She took one from her handbag and gave it to
5 Crimes Act 1961, s 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
6 Section 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
7 Section 234; maximum penalty 10 years’ imprisonment.
you. She also responded to your demands when she wrote her PIN on a piece of cardboard. You then took her into the bedroom and blindfolded her with a scarf, and used two other scarves to gag her and bind her hands in front of her.
[5] You then pushed the victim back onto the bed and forced her legs apart, before you put your head between them, smelling her vagina.
[6] You then got up and used another scarf to tie the victim’s legs together. You made her sit in a chair and bound her hands to the seatback, after pulling her arms up and backwards over her head. You also wrapped a scarf around her neck and tied that to the back of the seat.
[7] You went looking for the victim’s car keys but could not find them. After you emptied her handbag onto the bed, she told you about a spare set hanging up in the kitchen. You found the keys, went to the garage and stole the victim’s 2003 Toyota Corolla. You then drove to an ATM and withdrew a total of $1,200 from the victim’s bank account. You later abandoned the car.
January 2018 offending
[8] On 5 January 2018, at about 4.00 am, the same victim was asleep in her bed. You approached her property and attempted to force open a window in a spare bedroom but you were unable to do so because some security stays were in place. You then smashed open another window. After removing several pieces of glass from the window frame, you climbed through the opening, cutting your finger in the process.
[9] Once inside the house, you went to the master bedroom, where the victim was sleeping. You turned on a light on your way, which alerted the victim to your presence. She woke up with you standing at the foot of her bed, with your face covered.
[10] You said to her: “I told you I would come back”. She attempted to use her cell phone to call for help, but you menacingly told her to put it down, and she complied. You told her that it was her fault that you were back, because she had called the police after your offending on 13 October 2017. You then intimidated the victim by telling her that you had killed someone before and that you were wearing their clothing. You
said: “I’m going to kill you but first I’m going to have sex with you”. These threats were repeated at various times throughout the ordeal. You then told her that you wanted to smell her vagina. Throughout this time, the victim felt as though she was unable to leave because of your words and demeanour. She feared that if she attempted to escape, you would quickly catch up to her and kill her because of her limited mobility.
[11] The victim was wearing a night gown. You slid your shorts down, lay on top of her and attempted to insert your penis into her vagina. You spent some time doing this. During this part of the attack you eventually penetrated the victim’s vagina.
[12] You then told her to have a shower, which she did. After the shower, you attempted to have sexual intercourse with the victim again, but you were unsuccessful in this attempt. You then told the victim to go to the lounge and to lean forward onto the couch with her back to you. You then continued to attempt to penetrate her vagina, but were unable to do so.
[13] Next you made the victim perform oral sex on you. This continued for some time, with you forcing your penis into her mouth. While this was going on, you used the victim’s cell phone to play pornographic material. You held the phone up to the victim’s ear and told her to moan and make sexual noises. By this stage the victim was exhausted.
[14] You got up from the couch and obtained a filleting knife from the kitchen. You returned to the lounge and placed the knife on a couch. You located the victim’s handbag and removed her wallet. You demanded the victim’s PIN, which she provided. Realising that you had bled onto the bed and the carpet, you used the knife to cut out several segments of the carpet. You also removed items of bedding from the master bedroom. You then demanded to know where the keys to the victim’s car were kept.
[15] You placed the carpet and bedding into the car, along with the victim’s cell phone and landline phone, and some other property. You told the victim to get in the backseat of the car. She complied out of fear for her life. You then drove to an ATM
and withdrew $1,000 from the victim’s bank account. You told the victim to get out of the car, and then you drove away in it. The car was not recovered until you were arrested.
Impact of your offending
[16] The victim impact statement highlights the courage and grace of your victim. I can understand why she elected not to be present at court. Her words demonstrate, however, some of the finest features of humanity. She is clearly a very remarkable and stoic woman.
[17] The victim is still haunted by her image of you on the day of your offending. She says that she is startled by any person who looks similar to you, even when depicted on television. She has no words for what you did to her during the first attack and recounts being very frightened, even after you left. She says that you stole her “dignity and peace of mind in [her] own home”. In an attempt to forget and move on from the first attack, she had her lounge and bedroom repainted at significant financial cost.
[18] The victim describes your second attack when she says a small amount of normality was returning to her life, as her “worst nightmare” coming true. When she saw you at the foot of her bed, she says she was “petrified” and too frightened to move. She explains that she was concerned that you were videoing her when you started playing pornographic material on the cell phone. She also recounts that at one point she was so physically and mentally exhausted that she suggested you should just kill her as you had threatened to do. She says she was so desperate for it all to end and she just wanted it over with.
[19] The victim explains that the effects of your offending have been far reaching. Not only is she now afraid of loud noises, but her family incurred significant financial and emotional costs in looking after her. She has also incurred numerous financial costs and had to endure frustrating administrative burdens replacing her stolen drivers licence. She lives in what she calls a state of “hyper-vigilance”, and has even barred the windows on her house. Furthermore, her dog was so traumatised by your offending that it developed Addison’s disease and had to be put down. The loss of her
dog has had a profound effect on the victim. She explains: “My dog was my constant companion throughout this whole nightmare and to lose him and be truly alone in my home now is breaking my heart.”
Previous offending
[20] You have 33 previous convictions, including a conviction in 2016 for indecent assault, and eight convictions for burglary between 2002 and 2016. You also have three “trespass” convictions from 2014 and one conviction for theft from a dwelling house. You have four convictions for assault and five for other dishonesty offending. You were given your first-strike warning in 2016, following your indecent assault conviction. You were sentenced to 10 months’ imprisonment in 2010, and you have twice been sentenced to home detention.
Personal circumstances
[21] You are now 39 years old. Your mother reports having consumed about three beers a week while she was pregnant with you. She also says that your father was violent. You started inhaling glue at the age five. You started petrol sniffing at age six. You started drinking alcohol and smoking cannabis at age eight. At its heaviest, you were drinking four days a week. You have also experienced problems with methamphetamine.
[22] You report having psychotic experiences. In October 2017, about the time of the first set of offending, you recall thinking that your cousins were watching you and that a radio was listening to you. However, you deny hearing any voices or experiencing any visions at the time of your offending. Dr Barry-Walsh, a forensic psychiatrist, says that your symptoms were vague and that you have probably developed “drug related psychotic symptoms of limited clinical significance that are well controlled at the moment.”
[23] At various points since 2015, you have been placed on anti-psychotic medication. You stopped taking your anti-psychotic medication shortly before the offending on 13 October 2017. You describe being more paranoid and irritable at the time. However, Dr Barry-Walsh notes that you were vague in your account of your
symptoms and that you did not report any psychotic symptoms to your treatment team, whom you were in contact with at the time. Overall, Dr Barry-Walsh found no basis to conclude that mental illness played a direct role in your offending.
[24] You described the October 2017 offending as “spur of the moment” and out of character. You say you were uncertain about what to do as the offending progressed. You deny that your offending was motivated by sexual fantasy. You say that you felt bad about what you had done and were disgusted with your actions. However, the pre-sentence report describes your remorse as superficial and centred on the impact on yourself rather than on the victim.
[25] You also say that you do not recall any sexual offending during your January 2018 offending and have no explanation for your actions. However, you admitted to the pre-sentence report writer that you planned to return to commit this offence.
[26] You have been diagnosed in the past as having a major depressive disorder, however, Dr Barry-Walsh is sceptical of this diagnosis and suggests that your depression might be better understood in the context of your substance abuse and personality disorders. You have also experienced suicidal thoughts. Past mental health assessments have also raised the possibility that you have a borderline personality disorder. There have also been concerns about your low intellectual functioning. Your full-scale IQ has been assessed as being in the low to average range.
[27] I have read your letters in which you express remorse and a desire to turn your life around. I hope that you receive the treatment you clearly need in order to address your profoundly disturbing behaviour.
Determinate sentence
[28] It is necessary to first consider the length of an appropriate determinate sentence, since the assessment of the risk that you pose for the purposes of imposing a sentence of preventive detention must be carried out at the conclusion of that finite sentence.8
8 Sentencing Act 2002, s 87(2)(c).
Starting point
[29] The leading sentencing guideline judgment for sexual violation by rape is the Court of Appeal decision in R v AM.9 Your offending falls within sentencing band three, which provides that a starting point between 12 and 18 years’ imprisonment is warranted for rape involving two or more aggravating factors of a serious nature, or more than three aggravating factors of a moderate nature.10 Your offending involved the following aggravating factors:
(1)Planning and premeditation11 — Although you claim not to remember your offending, the fact that you returned to your victim, and even said to her “I told you I would come back”, indicates a high degree of planning and premeditation.
(2)Violence, detention and home invasion12 — Your offending involved serious threatened violence and the use of weapons. You told the victim you were going to kill her, and you got a knife from the kitchen. It is also clear your offending involved detention. Home invasion is also an important feature of your offending.
(3)Vulnerability of victim13 — The victim of your offending was a 71-year- old woman who lived alone and had limited mobility. Your offending occurred at night while the victim was in bed. It is difficult to imagine a more vulnerable victim. This aggravating factor is particularly serious in your case.
(4)Harm to the victim14 — The victim has suffered greatly as a result of your offending. She genuinely feared for her safety if she did not comply with your demands, and even gave up on life at one point during your offending. She is now hyper-vigilant and continues to experience
9 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
10 At [105].
11 At [37]; and Sentencing Act 2002, s 9(1)(i).
12 At [38]–[41]; and Sentencing Act 2002, s 9(1)(a) and (b).
13 At [42]–[43]; and Sentencing Act 2002, s 9(1)(g).
14 At [44]; and Sentencing Act 2002, s 9(1)(d).
emotional trauma. The impact on her has been exacerbated by the fact this was the second occasion you offended against her.
(5)Scale of offending15 — Your offending occurred over an extended period, first in the bedroom and then later in the lounge. You have been charged with three sexual violation offences: rape, attempted rape and unlawful sexual connection. Your offending also involved degrading conduct, such as demanding that the victim simulate the pornographic sounds you were playing on her phone.
[30]Ms Davies, for the Crown, has referred to two similar authorities:
(1)R v Olver16 — In a case with striking similarities to yours, a 16-year- old defendant broke into the house of a 72-year-old woman who lived alone. She awoke to find the defendant entering her bedroom. He threatened to kill her if she did not comply and said he had a knife. He then attempted to rape the victim and forced her to perform oral sex on him. He then took the keys to the victim’s car, and forced her to go with him, after cutting out a section of the sheets in an attempt to remove any DNA evidence. A starting point of 12 and a half years’ imprisonment was adopted in that case.
(2)Ipo v R17 — The Court of Appeal indicated that a starting point of 15 years’ imprisonment would have been appropriate for the rape of a 48-year-old woman. The defendant broke into the victim’s house and attacked her with a belt. The victim’s 69-year-old mother attempted to intervene and was also assaulted and then locked in the wardrobe while he raped her daughter. The defendant in that case had planned the home invasion.
[31] In line with these similar authorities, I consider that the appropriate global starting point for all of your January 2018 offending would be 14 years’ imprisonment.
15 R v AM, above n 9, at [47]–[49]; and Sentencing Act 2002, s 9(1)(e).
16 R v Olver [2012] NZHC 706.
17 Ipo v R [2012] NZCA 178.
Your sexual offending was more serious and of a longer duration than in R v Olver, while the level of violence involved in your offending was less than in Ipo v R. I note that in his comprehensive submissions, Mr Thackery, your counsel, also concluded a 14-year period of imprisonment would be an appropriate starting point for your January 2018 offending.
[32] I consider that an uplift of two and a half years is appropriate to take into account your October 2017 offending. If you had been sentenced for this offending alone, it would have attracted a starting point in the region of six to seven years’ imprisonment.18 Mr Thackery also responsibly submitted that your October 2017 offending would, by itself, have attracted a six to seven year starting point. This offending involved the following aggravating factors outlined by the Court of Appeal in R v Mako: use of a disguise,19 use of a knife,20 home invasion,21 a vulnerable victim,22 associated kidnapping and indecent assaults23 and serious consequences of your offending for the victim.24 In those circumstances, an uplift of two and a half years would not violate the totality principle and recognises your offending involved two discrete sets of events.
[33]That results in a total starting point of 16 and a half years’ imprisonment.
Adjustments to the starting point
[34] You have one previous sexual violence conviction, which although recent, was less serious than your present offending. However, you also have numerous convictions for burglary. Breaking and entering was a relevant factor in your present offending. In the circumstances, a small uplift of six months is necessary to reflect your persistent disregard for the sanctity of your victims’ homes.
18 Compare Lal v R [2016] NZCA 234; and R v Mako [2000] 2 NZLR 170 (CA) at [58].
19 At [38].
20 At [39].
21 At [40].
22 At [40]; and Sentencing Act 2002, s 9(1)(g).
23 At [45].
24 At [46].
[35] Although you clearly have significant mental health and substance abuse problems, Dr Barry-Walsh found there was no basis to conclude that mental illness played a direct role in your offending. No discount is appropriate in the circumstances.
Guilty plea
[36] You pleaded guilty to all charges about four months before your trial was scheduled. You would be eligible for a 25 per cent discount to reflect this.25
[37] That would result in an end sentence of 12 years and nine months’ imprisonment.
Minimum period of imprisonment – second strike
[38] You are now on your second strike. Accordingly, I would be required to order you to serve your determinate sentence without parole.26
[39] I am also required to state the minimum period of imprisonment that I would have imposed but for the three strikes regime.27
[40] In these circumstances, calculating a minimum period of imprisonment is artificial. I do so, however, in order to set some basis for the minimum period of imprisonment that must be served as part of the sentence of preventive detention.
[41] If this was not a second-strike case, I would have imposed a minimum period of imprisonment of eight years, which is close to the maximum that the law permits in relation to a determinate sentence of 12 years and nine months’ imprisonment.
Preventive detention
[42]I turn now to consider whether to impose a sentence of preventive detention.
[43]Every one of your offences is a qualifying offence for preventive detention.28
25 R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.
26 Sentencing Act 2002, s 86C(4)(a).
27 Section 86C(6).
28 Section 87(5).
[44] If I am satisfied that you are likely to commit another qualifying offence if released at the sentence expiry date, then I may impose an indefinite sentence of preventive detention.29 In exercising my discretion to impose preventive detention, I must take into account the following factors:30
(1)any pattern of serious offending disclosed by your history;
(2)the seriousness of the harm to the community caused by your offending;
(3)information indicating your tendency to commit serious offences in the future;
(4)the absence of, or failure of, efforts by you to address the cause or causes of your offending; and
(5)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
Pattern of serious offending
[45] While you do not have any previous sexual convictions of the magnitude of your January 2018 offending, it is clear that you are developing a pattern of serious offending of a quite specific nature. It appears that you have now committed specified sexual offences on three separate occasions in conjunction with breaking into the property of your victims:
(1)First, is the indecent assault for which you were convicted in 2016. This offence involved you attempting to kiss your brother’s ex-wife against her will while you were intoxicated, and then putting your hand down her top. This offending was followed the next day by a theft from a dwelling, in which you stole a pair of women’s underwear from the victim’s property.
29 Sentencing Act 2002, s 87(2)(c).
30 Section 87(4).
(2)Second, is the 13 October 2017 offending, which involved aggravated robbery, indecent assault and kidnapping, all within the confines of the victim’s home.
(3)Third, is your offending on 5 January 2018 this year, which escalated to rape, it involved attempted rape and unlawful sexual connection in the victim’s home. Your offending that day also involved kidnapping and robbery.
[46] The reports from Dr Barry-Walsh and Mr Carstens, a clinical psychologist, identify other offending by you which have sexual overtones. I will refer to that offending in a few minutes.
[47] Although burglary is not a specified offence, it is relevant that you have eight previous convictions for burglary over the past 16 years. These convictions demonstrate that you have a tendency to break into the houses of your victims. This pattern has continued into your current offending. This earlier pattern of offending is relevant because the fact that you broke into the victim’s home is one of the more concerning aspects of your offending.
[48]Dr Barry-Walsh describes your history of offending in the following way:
… the sexual violence may be chronic with two recent incidents and a history suggestive of more longstanding issues noting the offending in 2015 and reports of earlier troubling sexual behaviour … There appears to be a diversity of sexual violence with possible prior paraphilic activity and the more recent offending. There has been a recent escalation in his sexual violence, with the second set of offences implying a degree of planning and probably significant sexually deviant fantasy.
[49]Dr Barry-Walsh also notes that you have:
… an extensive history of offending including non-sexual criminality which suggests to some extend that [you are] willing to transgress social and legal boundaries for personal gain or other reasons.
[50] Mr Carstens also explains that information concerning your previous offending reveals further offences of a sexual nature. Your 2001 conviction for intimidation involved you masturbating on someone else’s property in view of a victim while
walking home from a bar one night. You were convicted of committing an indecent act with intent to insult in 2004. Your 2016 conviction for a burglary in 2014 involved you entering a female victim’s home and removing some of her clothing from her wardrobe. Furthermore, it appears that two of the victims of your previous burglaries were also elderly ladies, including one who was 82 years old.
[51] It is abundantly clear that you have developed a particular pattern of offending, which involves you entering onto the property of your victims, often elderly ladies. There has often been a sexual dimension to your offending, but this aspect has escalated rapidly over the past few years to the point of becoming very serious offending.
Seriousness of harm to the community
[52] The summary of your offending demonstrates the horrific nature of your actions. Any attack on the most vulnerable members of our community is particularly grave. Your offending is at the far end of the spectrum of seriousness. The harm done to the victim in this case is unimaginable. You treated her without dignity and prayed on her vulnerability. The harm of such unprovoked attacks against a person extends to the whole community, but especially to other elderly women who live alone. Mr Thackery properly notes that the confidence of elderly women in the community is likely to have been affected by your actions.
Tendency to commit serious offences in the future
[53] In his report, Dr Barry-Walsh explains that you have problems with your sexual behaviour. He refers to your past incident of public masturbation and the theft of women’s underwear, as well as instances of voyeurism. Dr Barry-Walsh notes that you were not forthcoming about possible past difficulties with sexualised behaviour, and that you were unable to give a satisfactory account of your motivations or thinking around the time of your offending.
[54] Mr Carstens refers to your “high sex drive” and mood regulation difficulties, which he says have been shown to have a strong relationship with sexual gratification in violent sexual offending. The pre-sentence report also notes that you reported
thoughts about child sex offending, which raises a concern about deviant sexual arousal spanning a wide range of potential victims.
[55] A theme that emerged from earlier mental health reports is that you are at greater risk of aggressive behaviour and disinhibited sexual behaviour when intoxicated. You also report having thoughts of “suicide by cop”, which refers to attempting to provoke a police officer into shooting you.
[56] In 2015, you described having psychotic symptoms, including believing that you were obtaining messages from a television and a radio. You also experienced persecutory ideation and hallucinations. In 2017, you reported having intrusive sexual thoughts and admitted using pornography and thinking about hiring a prostitute. You experienced increasingly paranoid thoughts, along with further hallucinations.
[57] You have been married twice. You separated from your first wife in 2007. You admitted treating her badly and to being recurrently unfaithful to her. You separated from your second wife about four years ago.
[58] You told Dr Barry-Walsh that you do not see yourself as a violent person. You said that any violence in your intimate relationships has primarily been from your partner. However, you acknowledged feelings of sexual jealousy in your relationships. This description is particularly concerning, as Mr Carstens notes that a number of your previous violence convictions were for domestic violence against your previous partners.
[59] You also described the indecent assault for which you were convicted in 2016 as “a stupid moment” that occurred when you were intoxicated. Further, the reports indicate that you tend to blame your offending on your use of substances, rather than taking responsibility for your actions. It is clear you have a tendency to minimise your offending, and your culpability for it, which signals that you lack insight into the effects of your actions and your role in controlling them. This is confirmed by the pre- sentence report, which notes that your remorse was superficial and focused on yourself
rather than the victim. This can only increase the risk that you will commit similar offences again in the future.31
[60] Another relevant factor is that your October 2017 offending occurred only two weeks after your previous sentence of home detention ended. This demonstrates that you have been unable to control your behaviour when allowed back into the community.
[61] Dr Barry-Walsh describes your risk of committing a further specified offence in the following terms:
… without intervention, noting the two offences occurred with a 3 month period, there has to be real concern Mr Taylor could act in a similar seriously sexually violent way in the future, especially if he remains unable to satisfactorily address the concerns about planning and fantasy the offending raises. Mr Taylor’s offending has involved a high level of physical coercion indicating a potential propensity for violence. In terms of psychological adjustment the first item is extreme minimisation or denial of sexual violence. There is evidence of this in Mr Taylor’s inability to give an explanation for his actions. Mr Taylor has substantial problems with self-awareness which is evident in his limited insight into his mental health problems, the nature of his mental health difficulties and his limited capacity to speak about his sexuality.
[62]Dr Barry-Walsh also makes the following comment:
Based on the nature of the offending, noting Mr Taylor returned to victimise the same person again, there seems to have been a substantial element of planning and presumably fantasy involved in the offending …
[63] Dr Barry-Walsh concludes that “there are grounds to have grave concern for [your] propensity for further similar behaviour were [you] to be released to the community at this point.”
[64] The conclusions reached by Dr Barry-Walsh are confirmed by Mr Carstens, who has assessed your risk of reoffending using three instruments.32 He concluded you pose a high risk of further sexual offending, including violent offending. He recommends you attend a special treatment unit for adult sex offenders.
31 Compare Jenkins v R [2015] NZCA 131 at [40].
32 Automated Sexual Recidivism Scale – Revised (ASRS-R); Violence Risk Scale: Sexual Offender version (VRS-SO); and Psychopathy Checklist: Screening Version (PCL:SV).
[65]The pre-sentence report also assesses you at a high-risk of reoffending.
[66] I am satisfied that you have demonstrated a tendency to commit serious sexual offences in the future.
Absence/failure of efforts to address the cause of your offending
[67] You explained that prior to your offending on 13 October 2017, you had been out drinking at nightclubs, and you estimate you had consumed approximately half a dozen bourbon drinks.
[68] You described having a poor memory of your offending on 5 January 2018. You had been smoking cannabis and had drunk six to eight beers over the course of five hours. You then smoked some wild poppy plants, which you say made you “go loopy”. You remember being on the couch with the victim and forcing her to go in the car, but you do not recall any of your sexual offending. When reviewing your offending, you said you could not believe it, and accepted that what you had done was “so wrong”.
[69] It is clear that your use of alcohol and substances is a contributory cause of your offending, and your continued offending in this manner demonstrates that you have clearly been unable to address that problem. You have attended Alcoholics Anonymous, Narcotics Anonymous and an Alcohol and Drug Service therapy support group in the past, all apparently to no avail.
[70] Dr Barry-Walsh describes another cause of your offending in the following way:
Mr Taylor’s mental health history indicates he has problems with stress and coping and it is possible his offending at least in part reflects a mechanism by which he responds to stress and seeks to regulate his mood. There is no clear history of childhood abuse. With regards to mental disorder his actions in these two offences speak of sexual deviance, the presence of which is also suggested by the uncertain past history of paraphilic behaviour. … Mr Taylor may have a major mental illness although his extensive history of substance abuse may be responsible for his mental health problems. … In terms of social adjustment he has had longstanding problems with intimate relationships.
[71]He goes on to say:
In terms of manageability Mr Taylor has had difficulties in engaging in treatment although this appears to have improved in the last 3 years. His past history of breaches suggests that there may be difficulties with supervision.
[72] He also notes that you under-reported your history of mental health problems in your interview with him. He says that it is unclear whether your mental health issues are drug related or whether the drug use is merely a symptom of an underlying mood disorder or psychosis.
[73] You were consistently engaging in mental health treatment from 2015 until the time of your offending. Dr Barry-Walsh mentions that your treating team was in contact with you around the time of your offending and they considered that you were stable and had in fact improved.
[74] Mr Carstens refers to your lack of compliance with treatment, including your irregular use of prescription medication. It is evident that your treatment for your mental health problems has failed to prevent your continued offending.
[75] Mr Carstens also notes that you participated in individual psychological treatment with a Department of Corrections psychologist in 2016 to address your sexual offending. You missed your final appointment, but were otherwise compliant. This treatment appears to have had no preventative effect on your subsequent offending.
[76] I am therefore satisfied that past efforts to address the causes of your offending have failed.
Conclusion
[77] On the basis of the conclusions that I have reached, I am satisfied that you would be likely to commit another qualifying sexual or violent offence if you were released at the end of the determinate sentence I outlined earlier. Accordingly, I must exercise my discretion to decide whether a sentence of preventive detention is warranted in your case.
[78] I recognise the principle that a lengthy determinate sentence would be preferable if it could provide adequate protection for society. However, that is simply not possible in your case.33 When I assess all of the factors that are required to be taken into account by s 87(4) of the Sentencing Act, I am driven to the conclusion that you must be sentenced to preventive detention.
[79] I reach this conclusion notwithstanding the fact that you would have been required to serve your entire determinate sentence without parole, and that the Department of Corrections would have been entitled to apply for an extended supervision order after your release.34
[80] An indeterminate sentence will ensure that you are not released until you no longer pose a threat to the community, and hopefully will give you a greater incentive to reform than would be the case if you were sentenced to a long determinate period of imprisonment.
Minimum period of imprisonment – preventive detention
[81] Section 89 of the Sentencing Act governs the imposition of a minimum period of imprisonment where preventive detention is imposed. The term must be at least five years and must be the longer of:35
(1)the period of time that reflects the gravity of the offending; or
(2)the period required to keep the public safe, in light of your age and the risks you pose to the community.
[82] The Court of Appeal has explained that this is a two-step exercise.36 I must first assess the appropriate minimum period of imprisonment to reflect the gravity of the offending, by reference to the sentencing principles of punishment, denunciation and deterrence. Usually this period will reflect the period that would have attached to
33 Sentencing Act 2002, s 87(4)(e).
34 See Parole Act 2002, s 107F.
35 Sentencing Act 2002, s 89(2)(a) and (b).
36 Ellmers v R [2013] NZCA 676 at [46]–[48].
any determinate sentence that would otherwise have been imposed.37 In your case that is eight years. I am satisfied that this period reflects the gravity of your offending.
[83] The second step requires an assessment of whether that period is adequate for the purposes of community protection in light of your age and the risk you pose to the community’s safety. If I reach the conclusion that the period adopted at stage one is inadequate to protect the community, then I must increase it irrespective of any other sentencing principles.
[84] I am satisfied that this is a case where the risk you pose to the community outstrips the minimum period of imprisonment appropriate to the gravity of your present offending. Your offending escalated rapidly within a very short time, all of which occurred just after you were released from your previous sentence. You display numerous risk factors and there have been several failed attempts at treatment. I consider that a minimum period of imprisonment of 10 years is necessary to protect the community from you.
[85] It will be apparent that I believe you pose a serious risk to vulnerable elderly women. They need to be protected from you. That will be best achieved through a sentence of preventive detention. If you are ever released back into society, you will be subject to strict terms and conditions for an indefinite period. Those terms and conditions will hopefully ensure no other woman is ever subject to your violent attacks.
Result
[86]Mr Taylor, please stand.
[87] I am sentencing you to preventive detention on the charge of rape; the two charges of kidnapping; and the one charge of unlawful sexual connection. You will serve a minimum period of imprisonment of 10 years in relation to that offending.
37 See also R v Johnson [2004] 3 NZLR 29 (CA) at [26].
[88] I sentence you to five years’ imprisonment in relation to the one charge of attempted rape.
[89] I sentence you to three years’ imprisonment in relation to each of the other charges.
[90]Those sentences will be served concurrently.
[91]Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Palmerston North
Opie & Dron, Palmerston North for Defendant