R v Taylor

[2016] NZHC 649

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-019-000845 [2016] NZHC 649

THE QUEEN

v

MICHAEL PAUL TAYLOR

Hearing:	12 April 2016
Appearances:	Ross Douch for the Crown Simon Lance for Paul Mabey QC for the Defendant
Judgment:	12 April 2016

SENTENCING NOTES OF MOORE J

R v TAYLOR [2016] NZHC 649 [12 April 2016]

Introduction

[1]      Michael Paul Taylor, at the age of 50, you appear for sentence today having pleaded guilty to three charges:

(a)       manslaughter;1

(b)      injuring with intent to injure;2 and

(c)       assault with a weapon.3

[2]      The victim, who I will say more about later in these remarks, was Michael Bull (“Michael”).  You were originally charged with his murder and your trial was scheduled to start last week.

[3]      However, just over two weeks before the trial was due to start the Crown accepted a plea of guilty to manslaughter which had been laid as an alternative to murder.   Before me you entered pleas of guilty on all charges.   This morning I granted leave to the Crown to withdraw the charge of murder.

Facts

[4]      It is necessary for me to set out the factual basis which you accept supports the charges the Crown has brought.  The facts paint a distressing picture of a highly abusive sequence of events which culminated in Michael dying of multiple blunt force injuries caused by you.

[5]      Michael was the same age as you.  He lived in the same house as you.  And he was your first cousin.

[6]      Included in the information before me are the very moving victim impact

statements  filed  by  Michael’s  family  which  were  read  this  morning,  in  your presence.   They reveal him as a quiet and unassertive man who suffered from a

1      Crimes Act 1961, s 71: maximum penalty – life imprisonment.

2      Section 189(2): maximum penalty – five years’ imprisonment.

3      Section 202C: maximum penalty – five years’ imprisonment.

variety of reasonably serious health issues.  He was a large man and, it seems, had struggled with his weight for most of his adult life but had succeeded in recent times by reducing it from 148 kg to the 106 kg he weighed at the time of his death.

[7]      His mild and subservient nature, which his family have so eloquently spoken of, is supported by aspects of the summary of facts with which you agree.

[8]      The prelude to Michael’s death on 12 October 2014 is reflected in the facts which give rise to the two charges which I will describe in a minute.   However, before I do, it is necessary to deal with some other aspects of context.

[9]      You lived in a house in the small north Waikato village of Meremere.  Your home, which you shared with Michael, was something of a draw card for some within that community.   You had earned a reputation for producing home brewed alcohol.  It was apparently a very potent mixture with high alcohol levels and what the summary of facts describes as “a corresponding impact on the behaviour of those who consumed it”.

[10]     It is against that background that I now turn to describe the offending which was the prelude to Michael’s death.

Injuring with intent to injure

[11]     In June 2014 Michael suffered a fractured jaw which I accept had nothing to do with you.  The treatment for this injury involved fitting an external facial brace to his head attached by two metal rods. This device remained fixed to his head until the time of his death.

[12]     A month or two later, in July or August 2014, Michael and some visitors were at the Meremere address with you drinking your potent home brew.  At some point Michael made a comment to you about your alcohol intake. You took umbrage. You lost your temper.   You got very angry.   You swore at him and called him names. Then you got up, went over to him and punched him in the face.  The punch was so forceful it caused Michael to fall off his chair onto the floor.

[13]     But that was not enough.  While he was lying on the floor you kicked him in the head twice.   As a result of this attack your cousin was left with bruising and swelling around both eyes.  It is this offending which is the subject of the charge of injuring with intent to injure.

Assault with a weapon

[14]     Then, just a month or two afterwards, in September or October 2014, the same sort of thing happened again.  You, Michael and another were at the Meremere address when, again, you lost your temper with your cousin.   This time you approached him with a metal pipe in your hand, threatened him and then hit him with the pipe on the side of his head.  Unsurprisingly this blow stunned and shocked him and left him with a headache.  These facts form the basis of the assault with a weapon charge.

Manslaughter

[15]     Then, not long afterwards, on the afternoon of Sunday, 12 October 2014, you were back at your house drinking with a number of others, including Michael.

[16]     At about 10:00 pm you became aggressive.  You commented on how people were coming over to your house just to drink your home brew. Your aggression built with the effect that almost everyone departed leaving you, your cousin and one other. You then turned your attention to Michael.  You began to complain about what an inconvenience he was.  You made derogatory remarks about him and aggressively banged the table with your fist.   You called him names.   You described him as a “useless shit” and a “waste of space”.   Consistent with his submissive nature, his only response was in the form of an abject apology.  Repeatedly he said, “I’m sorry cuz; I’m sorry cuz”.  Your response to his apologies and his attempt to diffuse your aggression was to tell him to “Shut the fuck up”.  You then got out of your seat and approached him.  You grabbed him by the hair.  You yanked his head backwards as you continued to shout abuse at him.  He called out in pain.  You let his hair go and returned to your seat.

[17]     Not long afterwards Michael tried to remove his t-shirt.  But he encountered difficulties.  The complications of his intoxication combined with the fact his t-shirt got caught in the mechanism of his head brace caused him to fall onto the floor where he lay in the doorway between the kitchen and the hallway.  You got up and told him to go to bed.  When he did not go to bed you began to repeatedly slam the kitchen door hard up against his lower legs.  You did this eight or nine times before you started to kick his legs.  Michael was crying out in pain before you stopped and returned to your seat and lit up a cigarette.

[18]     The visitor left the room to go to the toilet but when he returned he found you attacking your cousin again.  You were kicking him in his legs.  The visitor tried to intervene.  This provoked an angry exchange between the two of you which led to him leaving.  This would have been around 12:30 am.  When he left, Michael was still lying on the floor in the doorway moaning.

[19]     About an hour or so later you telephoned your cousin, Michael’s sister.   Your first words to her were, “Do you love your brother?”  Naturally she was confused and asked you what you meant.  You repeated the question.  In the background she could hear loud gurgling sounds and a scream and asked you what was going on. You simply replied, “I don’t know; your brother is on the floor screaming.”  Ms Bull could hear her brother calling out her name.   You told her, “It’s okay.   He’s just drunk.”  She told you to dial 111 and ask for an ambulance. You told her you did not know what to do.   Again she asked you to call an ambulance.   She heard you addressing her brother and saying to him, “If you don’t fucking stop it I’ll kick you in the head.” The noises from her brother abruptly stopped.

[20]     What happened after that is largely obscure.  But what we do know is that about four hours later, at approximately 5:30 am, you approached a neighbour for assistance.  You said you thought Michael was dead.  The emergency services were contacted and on their arrival they found Michael lying on his back by the door to the kitchen. Attempts to resuscitate him were unsuccessful and he was declared dead at the scene.

[21]     A post-mortem examination found that the cause of death was multiple blunt force trauma. There was extensive bruising to his skull, chest and extremities.

[22]     There were multiple bilateral rib fractures.   Some of those fractures were displaced.  On the right side there were fractures involving the second through to the eleventh ribs with substantial displacement to the fifth, sixth, seventh and eighth ribs. To the left side there were fractures involving the second through to the twelfth ribs with the fractures of the fourth, fifth, sixth, seventh and eighth ribs being the most displaced.    Some  right-sided  fractures  had  actually  penetrated  Michael’s  liver causing blood loss.

[23]     Additionally, there was a fracture to his left thumb.  His right ear lobe was swollen and lacerated.

[24]     Toxicological  results  revealed  Michael  had  a  blood  alcohol  level  of 281 milligrams per 100 millilitres of blood.

[25]     Other post-mortem artefacts included evidence of cirrhosis of the liver and mild, chronic lung and cardiovascular disease.

[26]     Your explanation to the Police added little to what I have already described. You said you had quite a few drinks and you were more inebriated than you usually would be.   You said at one stage you noticed your cousin lying on the floor and thought he had drunk too much.  You said you tried to shut the kitchen door and you thought you moved his feet out of the way to do this.  You said your next memory was falling down the stairs.  You claimed you had no memory of the telephone call you made to Michael’s sister.   When the Police put to you that you had hit and kicked Michael when he was on the floor you said you could not explain that and you had no memory of it.

Victim impact statements

[27]     I have received three victim impact statements and they have been read to me in open Court.  I have touched on them already.  One has been written on the behalf of the family by your cousin, Michael’s sister, who you telephoned in the middle of

the night.   Her moving comments about her brother and the consequences of his death to the family are haunting.

[28]     I also have received victim impact statements from two other cousins of yours who made it plain that they are ashamed to admit that you are related to them.

[29]     All three victim impact statements speak of a much loved and deeply missed family member who is described as, “kind and big hearted … a big teddy bear”. They feel cheated and misled by you; you had agreed to look after your cousin but, instead, you abused him and ultimately took his life.

Personal circumstances

Prior convictions

[30]     You have 23 previous convictions going back to 1984 with one Youth Court notation entered in 1981.

[31]     Unsurprisingly, your previous convictions disclose links to alcohol abuse. You have two previous convictions for violence which appear to relate to the same incident in 2013.   You were convicted on a charge of male assaults female and a charge of possession of an offensive weapon.   Mr Lance has explained in his oral submissions to me the background to those offences. You received a sentence of 200 hours of community service and six months supervision with special conditions.

Pre-sentence report

[32]     The pre-sentence report and I note the criticisms which have been made of it by Mr Lance makes it plain that even now you have little insight into the enormity of what has lead you to appear in this Court.  Apparently, when the author of the report tried to discuss the contents of the summary of facts with you, you responded it was hard to agree with something when you could not remember what had happened. However, you said the offending occurred after you had completed a day of community work.  You had invited some associates back to the house for a drink. You claimed a conflict  arose over some unspecified inappropriate behaviour by

Michael.   This, you claimed, lead to the physical altercation although you were unable to explain how it was that things escalated in the way they did.

[33]     It is hardly surprising the author of the report describes you as having little insight and shifting blame.

[34]     The report also records that while you express remorse and acknowledge the impact your actions have had on the family, you remain self-focused.  You translate the loss to yourself and even suggested, in the course of the interview, that someone else was to blame for the offending.

[35]     I agree with the report writer that until you accept total responsibility for your offending and the need to address the behaviours and the alcohol abuse which led to it, you will remain a risk to the community.

Purposes and principles of sentencing

[36]     I accept that the purposes and principles of sentencing which are engaged in your case are the need to hold you responsible and accountable for the harm you have done and to promote in you a sense of responsibility for, and an acknowledgement of, the harm which you have caused.  It is also necessary that your conduct not only be denounced but that any sentence imposed should deter such conduct.  I also accept, particularly having regard to the pre-sentence report, there is a need to protect the community from you.

[37]     I also take into account the gravity of the offending including the degree of your culpability and the seriousness of the offence.  I accept I must take into account the desirability of consistency with appropriate sentencing levels and impose the least restrictive sentence which is appropriate in the circumstances.  I must take into account any particular circumstance which might make the sentence disproportionately severe in your case.

Submissions

Crown submissions

[38]     Although you are being sentenced in relation to three separate and quite discrete instances of violent offending committed over a three to four month period, I agree with the Crown that this is not a case where it would be appropriate to impose a  cumulative  sentence.    Cumulative  sentences  are  generally  appropriate  if  the offences are different in kind, whether or not they are a connected series of offences.4

Concurrent sentences are appropriate if the offences are of a similar kind and are part

of a connected series.   In determining whether offences are a connected series the Court may have regard to the time at which they occurred, the overall nature of the offending and any other relationships between the offences that the Court considers relevant.5

[39]     In the present case, having regard to the fact the victim, in each case, is the same,  the  offending  occurred  within  the  same  domestic  context  and  within  a relatively short timeframe, the appropriate approach is to impose concurrent sentences, and take the charge of manslaughter as the lead offence.

[40]     The Crown submits that the appropriate starting point is in the range of nine to 10 years for the manslaughter charge with an uplift of 18 months for the injuring with intent charge and four to six months for the charge of assault with a weapon. The Crown suggests that the overall starting point for the offending should be between about 11 and 12 years.

[41]     On the question of your guilty plea the Crown,  in oral submissions this morning, submits any discount should be limited and given its lateness should not exceed 10 per cent.

[42]     Finally,  the  Crown  submits  the  circumstances  of  this  case  justify  the imposition of a minimum period of imprisonment (“MPI”) of 50 per cent of the term imposed.

Defendant’s submissions

[43]   Mr Lance, on your behalf, submits that a starting point of six years’ imprisonment for the lead offence would be appropriate.   In support of that submission he has referred me to a number of cases which I shall discuss later.  He submits that the cases relied on by the Crown are distinguishable on their facts and points out that the present case is not a “domestic situation”, but rather two mature males flatting together.

[44]     Mr Lance accepts that an uplift for the related assaults, taking into account the totality principle, is appropriate.   He criticises the Crown’s approach as being wrong in principle when it submits that concurrent sentences should be imposed with a starting point of about 11 and 12 years.   He submits that this is, in effect, a submission in support of the imposition of a cumulative sentence.

[45]     Finally,  he  submits  that  a  discount  of  15  per  cent  should  be  given  in recognition of the guilty plea and remorse.  He submits that no minimum period of imprisonment is either warranted or required in your case.

Sentencing

Case law

[46]     It is well known and Mr Douch accepts this in his oral submissions that there is no guideline judgment for sentencing in manslaughter cases.  This is because the crime  of  manslaughter  encompasses  a  very  wide  range  of  culpable  acts  and omissions causative of death.

[47]     However, the Court of Appeal in the well known judgment of R v Taueki6 has provided guidance when sentencing for serious violent offending.  Principles drawn from that case have relevance and application to the present.7     In R v Tai, the Court of Appeal suggested it  would be a “counsel of perfection” to adopt the  Taueki

methodology in tandem with an assessment of culpability by reference to comparable manslaughter sentencings.8   I propose to adopt that approach.

[48]     In Taueki the Court highlighted the factors which contribute to an assessment of the seriousness of the conduct and criminality noting that the sentencing Judge should not only identify the presence of a factor which reduces or increases the assessment of the seriousness of the offending but also evaluate the seriousness of the particular factor.9     Significant in my view, is the Court’s observation that the extent of the violence involved in the offending will have an obvious impact on the level  of criminality.   Where any violent  conduct is  prolonged  this  will  also  be relevant as will violence which is unprovoked or gratuitous.10

[49]     Mr Taylor, in your case, the offending involved a high level of sustained violence reflected by the injuries Michael suffered.   The injuries to Michael are telling in this regard.  It seems no part of his body was spared.  He had bruises and lacerations to his head and face.  He had injuries to his extremities.  The injuries to his chest and abdomen are rightly described as extensive.   By my calculation you broke 10 ribs on the right side and 11 ribs on the left side.  Such was the force of the blows to Michael’s chest that nine of those fractures were displaced, meaning that the broken ends were not aligned.  Some of those fractures were so displaced they actually perforated the side of the right lobe of Michael’s liver causing blood loss.  In my view this level of violence is a seriously aggravating factor.

[50]     Additionally, and as a separate aggravating factor, the violence you inflicted on Michael was sustained.  This was not a one-off attack lasting a few minutes.  On the contrary, the violence which you exerted on your cousin continued, on and off,

over what appears to be hours.

8      In  this case the  Court of Appeal confirmed that the  Taueki principles may be  relevant in manslaughter cases involving serious violence. It stated at [12]:

“In those cases where Taueki is relevant, the sentencing Judge effectively has a choice. He or she can assess the offender’s culpability by reference to, among other things, comparable manslaughter sentencings.   Another approach is to consider the matter in Taueki terms, making an appropriate adjustment for the fact that the consequence of the serious violence has been not just serious injury but death itself. A counsel of perfection perhaps would be to utilise both approaches, each providing a check on the other.”

9      R v Taueki, above n 6, at [30].

[51]     Also relevant and aggravating is the nature of the attack.  It was unprovoked and might even be described as gratuitous.11  Although there is no evidence you used a weapon you did use your feet as you kicked him as he lay on the ground. You were wearing steel capped work boots and this, together with the fact you were kicking a person on the ground necessarily elevates the seriousness of the attack.  That feature is likely to account for the nature and extent of his injuries.  This too is a significant

aspect of aggravation.

[52]     It is also noteworthy that the injuries support the conclusion that the target of your attack on Michael was his upper body and at least some of the blows were delivered to his head and face.   There was extensive bruising to his skull and his right ear lobe was swollen.  However, I do not accept that Michael’s head was the specific or prime target.

[53]     Another  well  recognised  aggravating  factor  is  the  vulnerability  of  the victim.12   While this factor is most commonly associated with age or disability, the Crown points out and I agree, that Michael, although larger than you, was not in good health and was emotionally and, apparently physically, incapable of protecting himself properly.  He was also recovering from a jaw injury and he was drunk.  As noted he was lying on the floor throughout the attack.  I accept that although he was

not vulnerable in the conventional sense there is an element of victim vulnerability engaged here albeit not to a particularly high degree relative to the other more aggravating factors I have listed above.

[54]     The Crown also submits I should take into account your failure to seek help. The Crown says this is a significant aggravating factor.  A failure to call for medical help has been considered an aggravating factor in some cases.13   It is unclear on the evidence before me exactly what happened once you and your cousin were left alone together in the house.  But what we do know is that at approximately 1:20 am, when you  called  Michael’s  sister,  he  could  be  heard  moaning  and  screaming  in  the

background.  You threatened to kick him in the head if he did not quieten.  On the

evidence it seems he immediately capitulated and nothing more was heard from him.

11     R v Taueki, above n 6, at [31].

12     At [31]

13     R v Ratana [2012] NZHC 811 at [48].

You were told on more than one occasion to call 111.  You failed to do so.  There is no medical evidence before me which would indicate whether medical intervention might have saved Michael’s life.  But what is evident is that you waited another four or so hours before contacting a neighbour asking for help because you thought your cousin was dead.  Despite this belief you still made no attempt to call the emergency services.  For more than four hours you were in the same house as your cousin as his life slipped away. And yet you did nothing.

[55]     There are no mitigating factors relevant to your offending and neither does

Mr Lance seriously advance there are although I will touch on this again shortly.

[56]   In this case I require little persuasion before concluding the offending comfortably falls within Band 3 of Taueki albeit within the lower range of that band. As such, it justifies a starting point in the order of at least nine to 10 years’ imprisonment.

[57]     I accept Mr Lance’s submission that an uncritical application of Taueki in manslaughter cases will not always be appropriate.  Indeed, as the Court of Appeal has recently observed, there can be some awkwardness in translating these principles to manslaughter cases and an analysis of comparable cases may often be the best

guide bearing in mind there are no tariff manslaughter cases.14    That is why it is

preferable, as the Court of Appeal recommends, to apply both methodologies as something of a cross checking exercise.15

[58]     Mr Lance has referred me to a number of cases which he says support his submission that a starting point of six years’ imprisonment on the charge of manslaughter.16      However,  these  cases  tend  to  involve  fatal  attacks  of  limited duration and where the number of blows struck was relatively modest.  That is not the case here.   In my view your offending is much more similar to cases where

starting points in the order of nine to 10 years or more have been imposed.

14     R v Murray [2013] NZCA 177.

15     R v Tai [2010] NZCA 598 at [11].

16     R v Paku HC Hamilton CRI-2005-019-006408, 7 July 2006; R v Savage HC Wanganui T982142,

12 March 2009; R v Tai, above n 7; Te Pana v R [2014] NZCA 55; R v Rangi [2015] NZHC
1879; Cooper v R [2014] NZCA 275.

[59]     For example, in R v Kengike the victim was the defendant’s partner of some

10 years.17   The couple were drinking at a table and were both behaving aggressively towards each other.  In the early hours of the morning the victim returned home. The defendant followed her.  Neighbours heard raised voices coming from the victim’s house.  Thirty hours later she was discovered unconscious.  She had two subdural haemorrhages, a boot print on her abdomen, a fractured eye socket and soft tissue injuries  around  her  neck.     She  died  in  hospital.      The  defendant  accepted responsibility for her death.  He had a lengthy list of previous convictions including a number for violence.  The Judge set a starting point of 10 years’ imprisonment and applied an uplift of two and a half years for the aggravating circumstances relating to the offending.  He discounted that sentence by two and a half years for mitigating factors resulting in an end sentence of 10 years’ imprisonment.  He also imposed an MPI of five years.

[60]     The appeal was allowed because the Court of Appeal determined the uplift resulted in a manifestly excessive sentence.  The Court determined the appropriate starting  point,  including  aggravating  factors  relating  to  the  offending  and  the offender, was 10 years’ imprisonment.

[61]     The facts in R v Tulisi18  are broadly comparable to the present.   Mr Lance submits there are differences, primarily because there was a motive sitting behind the offending, the target of the attack was the victim’s head and the injuries were caused through the use of a weapon, features which are not engaged in the present.

[62]     However, in my view this case provides helpful guidance.  The victim was a gentle, passive and submissive man.  The defendant exercised control over him and subjected him to increasing levels of violence although I accept for a longer period than in the present.  He was convicted at trial of the 11 charges all of which involved violence directed at the victim. The lead charge was manslaughter.

[63]     In Tulisi there were no witnesses to the assault which was causative of death. The injuries included fresh bruising, abrasions and a fractured rib which pierced the

17     R v Kengike [2008] NZCA 32.

18     R v Tulisi [2013] NZHC 3342.

victim’s lung leading to bilateral pneumothroax which caused his death.  The Judge approached the sentencing on the basis that a weapon had been used during the assault but it could not be proved a weapon had been used to inflict the fatal injury. Despite this the Judge concluded it was plain the manslaughter occurred in the context of a very significant assault.  He set the overall starting point, including an

uplift of one year for the other offending, at 12 years’ imprisonment.19

[64]     Thus, whether I adopt the Taueki approach or an analysis of comparable manslaughter cases I am lead to the same conclusion.  In my view the appropriate starting point for the manslaughter charge is one of nine and a half years’ imprisonment.

[65]     In order to reflect the totality of the offending I must consider what uplift is appropriate for the two other charges which preceded the events on the evening of 12 and 13 October 2014.

[66]     The injuring charge involved punches which felled the victim, followed by kicks to the head.  In terms of the R v Nuku bands it is Band 2 and a starting point in the order of 18 months would be appropriate.20

[67]     The assault with a weapon charge is less serious.  It involved a single blow to the head which stunned and shocked the victim.   I agree with the Crown that a starting point of the order of four to six months is appropriate.

[68]     On a cumulative basis this would equate to a total starting point of eleven and a half years.  But because I accept that such an approach is not justified in this case and because I am required to consider totality, I must impose a more modest uplift.

In the circumstances I consider a nine month uplift, while merciful, is appropriate.

19     Another comparable case is that of R v Edmonds [2015] NZHC 3254. There the victim was the partner of the woman who the defendant had become infatuated with. The fatal attack involved a number of punches to the head and face which continued after the victim has been felled. The sentencing Judge set a starting point of seven years and nine months’ imprisonment with an uplift of three months to account for a separate assault. The Judge noted the uplift would have been more, up to six or eight months, but for the provocation attributable to the victim a nd the need to consider totality. The Court gave a discount of around 20 per cent to reflect the defendant’s acceptance of culpability from an early stage and his remorse. This lead to an end sentence of six years and four months’ imprisonment.

20     Nuku v R [2012] NZCA 584.

This results in a global starting point for all the offending of 10 years and three months’ imprisonment.

Adjusting the starting point of 10 years’ imprisonment

Adjusting the starting point

[69]     Having arrived at a provisional starting point of 10 years and three months’ imprisonment it is necessary for me to consider whether this should be adjusted and, if so, to what extent, to reflect any aggravating or mitigating factors which are personal to you.

[70]     The Crown does not call for an uplift to reflect your previous offending.  In my view that is a reasonable and responsible stance.  Although you have a sizeable previous history it is not so extensive or relevant as to justify an uplift.

[71]     Your lawyer properly submits that other than your plea of guilty there are limited mitigating features although he does point out and I accept there was a lack of premeditation and the lack of a use of a weapon, although having said that at the time you were applying the kicks to Michael’s body you were wearing industrial footwear.  And while Mr Lance explains how it was that your plea came as late as it did, he accepts that you are not entitled to the full discount.  He submits a discount of

15 per cent would be appropriate to recognise your plea of guilty and your remorse.

[72]     Your  plea  of  guilty  was  entered  just  a  few  weeks  before  the  trial  was scheduled to start.   It was entered in the face of a strong case for manslaughter. Despite this, I am satisfied that some discount to recognise your plea is appropriate. In pleading guilty you have relieved family members from the ordeal of giving evidence, particularly Michael’s sister who received your distressing telephone call in the middle of the night.  And, of course, the State is relieved of the burden of an expensive criminal trial.

[73]     However, I am far from satisfied that any discrete or additional discount is warranted for remorse.  You have written a letter which I have had an opportunity to read this morning before I imposed sentence.  Despite what you say in that letter I

am far from satisfied that there is any room for an additional discount for remorse. Although Mr Lance presses his submission that you are remorseful and you acknowledge the impact your actions have had on your extended family, the preponderance of evidence suggests otherwise.

[74]     More particularly, the pre-sentence report paints a picture of someone who, even to this day, appears to have little insight into the consequences or enormity of what they have done.  To the author of the pre-sentence report you attempted to shift blame onto the fact that you were drunk at the time. You did much the same with the Police.   Your suggestion that the conflict between you and Michael arose over some inappropriate behaviour on his part is not supported by any evidence and while, on the one hand, you acknowledge the impact your acts have had on Michael’s family and your own, your egocentricity is underscored by your comment to the Probation Officer that you have lost everyone who was closest to you except your father and stepdaughters.   I do not accept you are truly remorseful; and certainly not to the extent it would justify a discrete discount of its own.

[75]     I am prepared to discount your sentence by 10 per cent for your plea of guilty which, in my view, is generous in all the circumstances.

[76]     This brings the end sentence to 9 years and two months’ imprisonment.

MPI

[77]     Next I am required to consider whether I should order you to serve an MPI

before you are eligible to be considered for release on parole.

[78]     The  Sentencing  Act  2002  permits  this  course  if  an  offender  receives  a sentence of more than two years.21   In those circumstances the Court may order the offender to serve an MPI longer than the one third period which normally applies but

no more than two thirds.22

21     Sentencing Act 2002, s 86.

22     Section 86(4)(a).

[79]     An MPI may be imposed where a Court is satisfied that the one third default minimum  is  insufficient  to  hold  the  offender  accountable  for  the  harm  done, denounce the conduct, deter the offender and others or protect the community.23

[80]     The purpose of the imposition of an MPI is to respond to those cases where the offending is so serious that release after one third of a sentence would be seen by the community to be insufficient even though there may be no ongoing safety risk.  It enables the Court to invest a degree of reality to the sentence and the outcome.24

[81]     In determining whether to impose an MPI the central consideration is the offender’s level of culpability when increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.25    The sentencing considerations contained in ss 7, 8 and 9 of the Sentencing Act 2002, including the circumstances of the offender, are also relevant when fixing an MPI.26

[82]     Given the callous and sustained nature of the attack and its very serious actual consequences, as well as the other features I have listed, I am satisfied that if you were to serve only one third of the sentence this would not only be seen as insufficient to denounce your conduct and hold you accountable for the harm that you  have  done,  but  would,  in  fact,  be  insufficient.    I  also  accept  the  Crown submission that your lack of insight into the influence of alcohol in your offending means you remain a risk to the public.  I note that MPIs of 50 per cent were imposed

in R v Kengike27 and R v Tulisi.28

[83]     I have thus decided that in your case you should remain in prison until you have served at least half of the sentence I intend to impose; in other words four years

and seven months.

23     Section 86(2).

24     R v Brown [2002] 3 NZLR 670 (CA) at [28].

25 At [32].

26 At [27].

27     R v Kengike, above n 17.

28     R v Tulisi, above n 18.

Orders

[84]     Mr Taylor  would  you  please  stand.    For  the  manslaughter  of  Michael  I sentence you to a term of imprisonment of nine years and two months with an MPI of four years and seven months.

[85]     I also sentence you to 18 months’ imprisonment for injuring Michael with intent to injure and five months’ imprisonment for assaulting him with a weapon, both of those sentences to be served concurrently with each other and with the sentence I have imposed on the charge of manslaughter.

[86]     Mr Taylor, you took the life of a man who had done you no wrong and who was closely related to you.  He was much loved by his family who are now ashamed to call you one of their own.  Perhaps they will forgive you in time.  Perhaps they will not.   But at the age of 50  you are about to embark on a lengthy term of imprisonment.  You will not be eligible to be considered for parole before you have served at least half of the sentence I have imposed.   Even then it will be for the Parole Board to decide whether or not you should be released and if so on what conditions.   I hope you will use that time to reflect on what you did, to properly acknowledge  the  irreparable  harm  you  have  caused  and  to  undertake  whatever courses you can not only to give you some insight into the triggers which have brought you to this Court but also to develop the tools to improve yourself as a person and in the memory of your cousin Michael.

[87]     Stand down.

Moore J

Solicitors:
Crown Solicitor, Hamilton
Mr Simon, Auckland