R v Taylor

[2017] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-009-6408 [2017] NZHC 1257

THE QUEEN

v

TROY KEVIN TAYLOR

Hearing:	20-30 March 2017
Appearances:	M N Zarifeh for the Crown P J Shamy for the Defendant
Judgment:	9 June 2017

SENTENCING REMARKS OF MANDER J

Three strikes warning

[1]      Before I proceed to sentence you, I am required under the Sentencing Act to

give you what is described as the “three strikes warning”.1

[2]      Because of your conviction on the charge of murder you are now subject to the three strikes law.   I am going to give you a warning of the consequences of a conviction for another serious violence offence.  You will also be provided with a written notice which contains a list of these serious violent offences.

[3]      The warning is this:  If you are convicted of any one or more serious violent offence, other than murder, committed after this warning, and if the Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early

release.  If you are convicted of murder committed after this warning, then you must

1      Sentencing Act 2002, s 86A.

R v TROY KEVIN TAYLOR [2017] NZHC 1257 [9 June 2017]

be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event, the Judge must sentence you to a minimum term of imprisonment.

Sentencing

[4]      Mr Taylor, as you well know, you are for sentence this morning for the murder of Ihaka Stokes who was aged 15 months.  You are also for sentence on a related charge of assault on a child.

[5]      Murder carries a maximum sentence of life imprisonment.   It has been realistically  accepted  on  your  behalf  that  a  sentence  of  life  imprisonment  is inevitable.   The only issue for me to determine today is the minimum period of imprisonment you must serve before being eligible to apply for parole.   Before I address that issue it is necessary to refer to the circumstances of your offending.

Facts

[6]      You and the child’s mother, Ms Mikala Stokes with whom you were in a relationship, were living together with Ihaka.  On the night before Ihaka’s death, you assaulted the child.  It appears Ihaka may have been coming down with a cold and he would not settle.   In the morning, Ihaka presented with bruising to his face, in particular a bruise to his forehead and to the right side of his jaw.  Because of those injuries and Ihaka’s symptoms of having a cold and an infected ear, he was taken to the doctor.

[7]      The narrative you provided, both to Ms Stokes and to the doctor, was that Ihaka had fallen during the night and banged himself on the cot.   At trial  you abandoned that explanation and maintained you had dropped Ihaka in the lounge as a result of ongoing symptoms of concussion which caused you to become dizzy.  The jury, in my view understandably, rejected that explanation.

[8]      The following night Ihaka continued to have difficulty sleeping.  Ms Stokes was awoken by you to find Ihaka lying unconscious and unresponsive in his cot. Ihaka had suffered grievous injuries as a result of deliberate force inflicted by you.  It

would later be found that the child had multiple subdural haemorrhages to the brain with associated swelling, bilateral retinal haemorrhages, a fractured jaw and fractures to Ihaka’s shoulder blades, torn tricep muscles and extensive bruising to his head, face, to the inner and outer aspects of his ears, and to both arms.  The brain damage caused to Ihaka was irreversible and could not be treated.  It is not precisely clear how you inflicted or caused the fatal injuries, nor in what order the injuries were inflicted, but, whatever the mechanism, it involved lethal force.

[9]      Your explanation to the police was the same as that which you had offered the previous day, namely, that the child had fallen in his cot.   After the medical reports categorically ruled out such a possibility, at trial you sought to blame Ihaka’s mother.   However, again, the incontestable medical evidence, Ms Stokes evidence, and importantly your own accounts, including both that which you gave to the police on the night and, indeed, the changed version you gave in evidence relating to the events on the evening of Ihaka’s death, were simply irreconcilable with your denial.

Victim impact statements

[10]     The  victim  impact  statements,  all  of  which  I  have  read,  reveal  the understandable profound and ongoing impact of the loss of Ihaka, which is particularly acute given the violent circumstances of his death.  There is nothing I can say which can better communicate to you the deep grief Ihaka’s family have suffered than the words that have been spoken this morning.   I am sure you understand  that  grief.   You  are  fortunate to  have the benefit  of the remarkable forbearance which they have demonstrated towards you this morning.

Pre-sentence report

[11]     Mr Taylor, you are 23 years of age.  There is nothing remarkable about your personal background.   You have the support of your family.   Despite some experimentation with drugs there is nothing to indicate you have difficulties in that regard, nor with alcohol.  You have, on occasion, suffered from depression for which you have been prescribed medication.   You have a history of suffering from concussion-related symptoms which prevented you from working as a roofer, although these are said to have now reduced.

The minimum period of imprisonment

[12]     The Court is required to impose a minimum period of imprisonment of at least 17 years if certain factors are present.2    One of those factors is whether the victim was particularly vulnerable because of his age.   Clearly that applies.   The Crown  have  also  pointed  to  the  nature  and  extent  of  the  injuries  which  were sustained by Ihaka.

[13]     Ihaka’s injuries are notable for the force that must have been applied and, indeed, the multiple use of force to result in the different forms of injury the child sustained.  It has never been suggested that this was a deliberate killing.  I think it likely that you, Mr Taylor, snapped from frustration at being unable to settle Ihaka, and that the violence inflicted was the result of your sudden rage.

[14]     The aggravating feature of you responding in that way is the level of violence you inflicted on a defenceless young child, rather than any intention by you to be brutal or cruel, although that was the ultimate and obvious effect of your actions. However, the fact that you had already assaulted Ihaka the previous night is an important contextual factor which is required to be taken into account.

[15]     Section 104 is clearly engaged, therefore the starting point I am required to impose is a minimum period of 17 years unless it would be manifestly unjust to do so.  In approaching that question, I am required to consider the sentence the Court would have imposed had s 104 not applied.3     In making that assessment, I am required  to  have  regard  to  the  purposes  and  principles  of  the  Sentencing Act, including the need to hold you to account for the grievous harm you have done, but to also be aware of your age, your rehabilitation, and the need for your eventual reintegration into the community.

[16]     The aggravating features of your offending which impact on your culpability are:

2      Sentencing Act 2002, s 104.

3      R v Williams [2005] 2 NZLR 506 (CA).

(a)      The extent of the loss and harm your violent offending has caused to Ihaka’s mother and father, his family and, indeed, to the wider community from the loss of a child in such violent circumstances.

(b)There is the obvious abuse of your position of trust in relation to Ihaka.  You chose to assume a parental role in respect of this child. You betrayed that trust, not only to the child but to Ms Stokes and to Ihaka’s wider family.

(c)      There is the level of violence inflicted on Ihaka, which resulted in his death, which was severe.  There were two episodes of violence, and the force required to cause the fractured scapula must have been significant.

(d)The obvious vulnerability of the young child, defenceless and utterly dependent, is an obvious aggravating feature.

[17]    The violent homicide of babies and young children by those who take responsibility for their care has been, for many years now, of growing and grave concern to the community.4   It is trite to observe that children have a right to be safe in their own homes, and denunciation and deterrence are important considerations.

[18]     On the night of Ihaka’s death you at least raised the alarm after realising what you had done, and endeavoured to perform CPR.  However, neither feature provides any great degree of mitigation when considered in the context of the stance you took at trial and the position you continue to adopt.  You sought to exonerate yourself, firstly, by attempting to maintain the injuries were accidental, and, when that was no longer available, you attempted to blame Ihaka’s mother.   In my view, that demonstrates a certain callousness and a certain disregard for Ihaka’s family, and,

importantly, an inability by you to face up to the enormity of your actions.

4      Lackner v R [2016] NZCA 29 at [17].

[19]     It appears that what must have been an obvious loss of temper may have some connection with your ongoing difficulties with concussion.  To the extent that may have been relevant to your situation at the time, I take that factor into account.

[20]     I  accept  your  sorrow  at  Ihaka’s  death  is  genuine.    Notwithstanding  the repetition of violence on Ihaka on successive nights, I also accept the offending was out of character.   You have no previous history of violence, apart from a recent conviction for assault, and you are entitled to some credit for your previous good character, however, that inevitably pales in comparison to the gravity of this offending.

[21]     I have given some close consideration to the domestic position in which you were placed and the role you were playing within the household.  As a relatively young man you had assumed considerable responsibility, both as a caregiver for Ihaka and for the care and support of his mother who was heavily pregnant at the time.   The fact remains, however, that you willingly assumed that role.   While to observers, including Ms Stokes, you appeared to exhibit the skills to discharge that role, it is now apparent that you were unable to exercise the necessary control which every parent and caregiver must when becoming frustrated by an upset child who refuses  to  quieten  or settle.   The fundamental instinct  of an  adult is to  protect children.  You did not protect Ihaka, a child you considered to be your own and who you loved, rather you inflicted the fatal damage to him.

[22]    I have reviewed relevant sentencing decisions.   Each case will have its differences depending upon the circumstances in which the offence was committed and those of the individual offender.   However, the need to firmly respond to the grave criminality which the violent murder of a young child represents is a common

theme.5   It is apparent from those decisions and from the matters I have traversed in

5      R v Lackner [2015] NZHC 690; R v Williams [2005] 2 NZLR 506 (CA); R v Ellery [2013] NZHC 2609; R v Harrison-Taylor CRI 2004- 092- 1510, 12 September 2005; R v Solomon [2016] NZHC 1653; R v Filiha [2013] NZHC 2833; R v Ngatai-Check HC Wanganui CRI-2009-

083-3155, 23 February 2011; R v Pickering HC Auckland, CRI 2008-055-1273, 30 July 2010;

R v Mahomed HC Auckland CRI 2008-092-748, 15 December 2009; R v Little HC Nelson CRI
2006-012-2095, 16 March 2007;   R v Little [2007] NZCA 491; R v Williams HC Wellington
CRI-2004-078-1816, 24 February 2006; R v Paul HC Palmerston North, CRI 2005-054-102,
28 November 2005; R v Loffley [2013] NZHC 201; R v Curtis HC Rotorua CRI 2007-063-4149;
R v Paul CA496/05, August 2006; R v Curran HC Tauranga  CRI-2005-070-6292, 1 February

your case that the appropriate non-parole period to reflect your culpability would approach, if not reach, that of 17 years imprisonment, at best, but for the statutory directive, a non-parole period of 16 years may have been imposed.

[23]     The violence you inflicted on Ihaka by its nature is at the high end of the spectrum.  It was of a level from which Ihaka had little, if any, realistic chance of surviving. You have denied your involvement. You do not accept responsibility, and therefore have demonstrated no remorse for what you have done, although I hasten to add that marks the absence of a mitigating factor  or factors and  not one of aggravation. While I have referred to the effects of your difficulties with concussion, there is nothing in your personal circumstances to suggest any diminished level of responsibility or culpability on your part.

[24]     Having regard to all material circumstances, I consider this case to be one which does fall within the band of culpability of a qualifying murder, as provided for in the Sentencing Act. The imposition of the statutory minimum term of 17 years imprisonment cannot be said to be manifestly unjust.6

[25]     Mr Taylor, could you now please stand.

[26]     On the charge of murdering Ihaka Stokes, I sentence you to life imprisonment and make an order that you serve a minimum period of 17 years imprisonment.

[27]     On the count of assault, I sentence you to two years imprisonment. [28]       You may stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch

P J Shamy, Barrister, Christchurch

S J Shamy, Barrister, Christchurch

2008; R v Hemana [2012] NZHC 376; R v Joachim HC Nelson CRI-2008-042-2437, 29 October

2008.

6      R v Williams, above n 5, at [67].