R v Taylor
[2013] NZHC 3017
•14 November 2013
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2012-029-1019 [2013] NZHC 3017
THE QUEEN
v
DANIEL LUKE TAYLOR
Hearing: 14 November 2013
Appearances: C A Anderson for the Crown
A Fairley for Mr Taylor
Sentence: 14 November 2013
SENTENCE OF WOODHOUSE J
Solicitors:
Ms C A Anderson, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei
Mr A Fairley, Thomson Wilson, Solicitors, Whangarei
R v TAYLOR [2013] NZHC 3017 [14 November 2013]
[1] Mr Taylor, you may be seated until I come to formally sentence you.
[2] Mr Taylor, you appear for sentence for nine sexual offences against five young boys.
The offences
[3] You pleaded guilty to one charge of doing an indecent act on a child under
12, five charges of doing an indecent act on a young person, one charge of attempted sexual connection with a young person, and two charges of indecent assault. Four of the charges were what are called representative charges. This means that there was a date range for the offending and that the Crown alleged that the particular offence occurred on numbers of occasions without necessarily being specific as to the particular date or occasion.
[4] The maximum penalty for attempted sexual connection with a young person is 10 years imprisonment. The maximum for actual sexual connection is also 10 years imprisonment – for the completed offence as opposed to an attempt. This is significant because with most attempts the penalty is half the penalty for the full offence.
[5] The maximum penalty for an indecent act on a child under 12 is also 10 years imprisonment.
[6] The maximum for the other offences is 7 years.
[7] These are serious offences Mr Taylor. You must understand that. And the sentence must reflect it.
The facts
[8] The names of your victims, and any information that would identify them, by law cannot be published. For this reason, and in any event to respect their privacy, I will use the letters A to E instead of their names.
[9] You pleaded guilty on the basis of a seven page summary of facts. This contains a reasonable amount of detail of what you did to each of these boys, as well as facts which aggravate your offending, such as the way in which you befriended the victims and their families, and groomed the victims by spending money on them and taking them to various places, and in other ways. I do not intend to summarise all of this. I do make clear that it has all been taken into account, and aggravating factors relating to the offences will be taken into account in determining the sentence in a way that I will explain.
[10] I will provide a brief outline of the offences following the sequence in the summary of facts. I mention that because it is not in the same order as the way in which the charges were set out in the indictment.
Victim A: counts 3 and 4
[11] There were two offences against A between April 2007 and April 2009 when he was aged between 11 and 12. The first offence was doing an indecent act on him. There are particulars for count 3 of kissing, rubbing your penis on his body and rubbing his penis. The summary records an occasion when A woke in the early hours of the morning and found you playing with his penis. You masturbated him. You then got on top of him, removed his pants and simulated sex with him by rubbing your erect penis against his penis, then ejaculated on his stomach and asked him if he liked it.
[12] The second offence is count 4. This was the attempt to have sexual connection with A. A woke early in the morning and found you simulating sex. After some time you rolled him on his stomach, pulled his shorts down, removed your own pants, and then tried to insert your erect penis in his anus. In spite of his protests you pleaded with him three times to let you have anal sex with him. He refused and you then stormed out of the room. You did tell him later that you would not do it again and there is no charge that you did.
Victim B: counts 1 and 2
[13] There were two representative charges of doing an indecent act on B, one relating to the period when he was under the age of 12 and the other when he was under the age of 16. Over the full period in both charges he was aged between 11 and 14. This was between September 2007 and January 2011.
[14] On one occasion, B was lying on a bed, playing on your laptop. You came up behind him and straddled him. You then began to gyrate, rubbing your penis on B’s anus, over his clothing. B pushed you off.
[15] On another occasion you went to his home. While B was doing the dishes you reached over and grabbed his genitals and felt them. His mother, who was home, did not see this, though B confided in her after you left.
[16] His mother confronted you and your relationship soured. However, B continued to visit you at your house until around the start of 2011. You continued to fondle his genitals whenever you saw him and had the opportunity to do so. And I wish to make abundantly clear that the fact that he continued to visit your house is not in any way mitigation of anything or any basis for being critical of him. And I will come to the question of harm to the victims and to members of their families.
Victim C: count 6
[17] There was a representative charge of doing an indecent act on C over a period of some 19 months. On a number of occasions you grabbed his buttocks with this stopping only when he threatened to punch you or when he walked away. On at least one occasion you hugged him and began to feel his buttocks and did this in front of his friends. And that last fact is indicative of the nature of your offending in one respect.
Victim D: count 5
[18] There was a charge of indecently assaulting D on one occasion. D was playing on a Playstation. You walked behind him and grabbed him by the buttocks. He turned around to confront you, and as he did so you grabbed his genitals.
Victim E: counts 7,8 and 9
[19] There were three charges of doing an indecent act on E, when he was under the age of 16, with one of these a representative charge. I earlier mentioned that you befriended victims and groomed them, and these are aggravating features of the offences. In the case of victim E I mention specifically that you became his approved caregiver for Child Youth and Family Services – he was placed in your care at the end of 2011 and in 2012 you began offending against him.
[20] On one occasion, at home, you were both playing cards on the floor. Once the game had finished, you pushed E onto his back on the floor, straddled him and tried to remove his t-shirt. He managed to break free by pushing you off.
[21] When in your care, E had his own bedroom but you would often sleep with him. On one occasion, E woke in his bed to find you lying on top of him, hugging him. E was lying face down on his bed. E told you to get off, but you refused. This happened on a further six occasions. On another occasion, you put your hands down E’s pants, under his underwear and touched his genitals.
[22] Like the other victims, E would watch movies in the lounge. On one occasion, you lay on E’s bare stomach and began to lick his stomach. This continued until the movie finished.
[23] E was in your care for 319 days. During this time you offended against him nearly every second week.
Harm to the victims
[24] Victim impact statements have been read on behalf of four of the five victims. It is unnecessary for me to seek to summarise what has been read. And, as I indicated, in respect of three of the victims who are brothers, bravely read by their mother.
[25] The harm you have caused to these boys may last for the rest of their lives. Victims can learn to cope but the harm can last – or even get worse if they have difficulty in dealing with what is done to them, and that difficulty can emerge later.
[26] And the harm can often go beyond the immediate victims and clearly has in this case. Parents may have a lasting sense of guilt thinking that they have failed properly to protect their young child. And I am not referring here only to victims A, B and C. I am also referring to the others including a young boy put in your care because his family could not cope.
Personal circumstances
[27] You are now aged almost 35. You are single. You were married but the relationship ended within a year.
[28] Before and during this offending you were a successful businessman and a trusted member of your community and your church. You were a senior member of your local business association and a committee member of your local marae. You have no previous convictions of any kind.
[29] The pre-sentence report indicates that you have no insight into your offending. You consider yourself to be heterosexual with no issues having normal relationships with women. You consider the fact that all of your victims are boys to be mere coincidence. I acknowledge what Mr Fairley has said on your behalf Mr Taylor, in respect of sitting in a room with a probation officer. But with the greatest of respect to Mr Fairley I would not regard that as an intimidating situation, and I will come to some other matters.
[30] Although you stated you are willing to undertake a programme or treatment, and that the remand in custody has come as a “huge shock”, and that you realise the consequences of your actions, the probation officer says that you would not identify any behaviour that encourages your offending.
[31] You have written to the victims. I am unable to attach any weight to this. And it is something that I have had to reflect on carefully. You have written the
letters. I have read them of course. The reasons for my conclusion are these. There are three letters, rather than five, because three of the victims are brothers and you wrote a single letter to the three of them. The content of each letter is identical; it consists of a single sentence containing a formal apology and it is signed “regards”. The letter in my judgment, Mr Taylor, confirms the probation officer’s assessment. My task is not to judge you in the sense of judging problems that you may have and which hopefully can be dealt with. What I have to address is the question as to whether there is genuine remorse. And I will come back to that. But on the basis of those letters they did not persuade me.
[32] There is also a lengthy letter in support from a retired social worker who, since her retirement, has become a support person for foster parents facing allegations. It is fortunate that you have that support. But, again, I regret to say that the letter itself tends to support the proposition that you have a lack of insight into your criminal acts and a lack of empathy for your victims. And it is the last point that I have to give particular consideration to. It is a lengthy letter. It quotes fairly extensively from letters from you. There does not appear to be one mention of your victims or the harm caused to them.
Assessment of sentence
[33] I come to the assessment of the sentence. I need to fix a starting point for what is called the lead offence. The starting point is an assessment of the sentence that should be imposed having regard to the seriousness of the offence itself, without considering any factors relating to you personally and which might increase or decrease the sentence. The starting point does take account of aggravating and any mitigating features of the offence itself. The starting point for the lead offence then has to be increased to take account of the other offences because, in this case, all sentences will be concurrent – they will not be added to each other.
[34] The lead offence, in simple terms, is the most serious offence. Mr Fairley, on your behalf, and Ms Anderson, for the Crown, both submitted that the lead offence should be count 4, the attempted sexual violation of A, and I agree.
[35] Mr Fairley has, of course, made submissions on your behalf as to the relative seriousness of the offending in order to fix a starting point and on the increase for the other offences. This includes submissions on aggravating factors. I have received submissions from Ms Anderson dealing with the same matters. I have taken all of these submissions into account – both the written submissions and in particular, of course, the written submissions from Mr Fairley on your behalf and the further oral submissions I have heard this morning.
[36] There are the following aggravating circumstances, with these relating to all of the offences to a greater or lesser extent:
(a) There was considerable harm. And I have referred to this.
(b)Secondly, you abused positions of trust or authority or both. This arose from your befriending not only the victims but also their families in some cases; the abuse of your position in the local community; and the abuse of your position as a caregiver approved by a government organisation.
(c) All of the victims were vulnerable because of their ages and the wide disparity in age between you and them.
(d)There was premeditation because you engineered situations for some of the boys to sleep at your home or for you to be with them in other situations where you could offend. There was grooming by you. In the case of E this had gone to the extent of your actively seeking to be made an approved caregiver resulting in a young boy being put under your control.
[37] There is also a question whether there are mitigating circumstances relating to an offence. Mr Fairley submitted that this might be seen in relation to count 4 in that you did not carry on and actually violate A. I am satisfied that this does not mitigate that particular offence. Attempting to commit an offence is an offence in itself. And as I earlier noted, the maximum penalty for attempted sexual connection
with a young person is the same as the maximum penalty for the completed offence. In this case, in addition, the facts of the attempt came very close to completing the full offence.
[38] I have been referred to a number of cases. Mr Fairley referred to a Court of Appeal decision called R v AM,1 which is a leading case for sentences of rape and sexual violation. None of your offences is in these categories, with the most serious offence in your case being the attempted sexual connection with A. Nevertheless, the Court of Appeal case provides some assistance. Ms Anderson referred to some other cases and I have considered three others. It is unnecessary to outline these cases and I will simply note the names and add the citations in the transcript of what I am now saying. Ms Anderson referred to cases called: Johnson,2 Henderson3 and
Hearling,4 and also made reference – as had Mr Fairley – to R v AM.5 The additional
cases I looked at are called: Kain,6 O v R,7 and Thorpe.8 And it is these last three, perhaps, which are most helpful for comparative purposes.
[39] Having regard to the purposes and principles of sentencing set out in the Sentencing Act, and the matters I have discussed to this point, I consider that the starting point for the lead offence, which was count 4 in the final indictment, should be 4 to 5 years as submitted by the Crown. And as Mr Fairley also submitted, in essence, he really did not have any significant quarrel with that, although the specific submission by him on your behalf was a starting point of 4 years.
[40] The more difficult part of this assessment is the increase for all of the other offending. Looking at offences against individual victims could result in standalone sentences of several years’ imprisonment for some of them. But Parliament, through the Sentencing Act, does not permit separate sentences to be calculated for each offence and for all of these simply to be added together to produce a total sentence.
The Sentencing Act requires the Court to have regard to what is called the totality
1 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.
2 R v Johnson [2010] NZCA 168.
3 R v Henderson [2007] NZCA 524.
4 R v Hearling [2009] NZCA 298.
5 R v AM, above n 1.
6 R v Kain HC Whangarei CRI-2008-088-66, 1 August 2008.
7 O v R [2010] NZCA 609.
8 R v Thorpe [2012[ NZHC 229.
principle. And the Sentencing Act also requires me to take account of the fact that the particular offences by you, assessing them overall, are not the most serious of these types of offences.
[41] Ms Anderson acknowledged these points quite properly. And Ms Anderson, in the end, accepted that there could not be an increase of 4 to 5 years as she had originally submitted – that is to say, there could not be an increase of 4 to 5 years to the starting point of 4 to 5 years.
[42] Taking these principles of the Sentencing Act, and other principles and purposes of the Act, into account, I consider that the total sentence, before considering personal factors, should be imprisonment for 7 years.
Personal factors
[43] I come to personal factors. There are no aggravating factors personal to you that require an increase. The Crown does not submit otherwise.
[44] You are by law entitled to a reduction because of your guilty plea. That is usually brought into account at the end. Mr Fairley submitted that you are also entitled to credit for the fact that you have no previous offences and for remorse, and other matters which could be brought under the heading of remorse.
[45] Having regard to the probation officer’s assessment, coupled with the content of the letters you wrote to the victims, and the other matters I have earlier referred to, I certainly did earlier have doubts, Mr Taylor, as to the extent of your remorse. However, I have heard the submissions this morning from Mr Fairley and I have taken account of them. And no lawyer, with the experience that Mr Fairley has, would make such submissions without proper instructions and without proper thought. And I will attach some weight to that, but I have to say it is limited. But I am not ignoring it.
[46] You are entitled to some credit for the fact that you have no previous convictions, but that cannot be the sort of credit that is given to a reasonably mature person who commits a solitary offence having never committed an offence before.
Your offending did not come to light until 2012, but it had extended over a period of some 5 years against five different victims and there was a substantial number of individual offences in this period.
[47] You are nevertheless entitled to some credit although it must be modest. Although this would normally be brought into account at this point I consider the best way of dealing with this is to make an adjustment after dealing with the credit for the guilty pleas.
[48] The Crown agrees with Mr Fairley’s submission that the reduction for the guilty pleas should be 15%. I also agree. Amongst other things, and significantly in a case such as this, you have saved the victims and members of their families from giving evidence in a Court, which would be gruelling. A 15% reduction for the guilty pleas would amount to a reduction of just under 13 months. To allow for the fact that you had no previous convictions when you began this offending, and accepting Mr Fairley’s submissions as to your better understanding, and with the strength of the apology he has conveyed on your instructions, I will increase that reduction to 17 months. And that in the overall assessment, Mr Taylor, is not insignificant as it does amount to just over 20%.
Minimum period of imprisonment
[49] Finally, I need to consider whether I should impose a minimum term of imprisonment greater than the default period – if it can be called that – of one-third of your sentence under the Parole Act.9
[50] I am satisfied that the release after one-third of your sentence, although by no means certain, would be insufficient to hold you accountable for the harm you have done to deter you in the future and to protect the community.
[51] The Crown submitted that the minimum period might be up to two-thirds but did not set a base for that. Mr Fairley did not take significant issue with the
9 Parole Act 2002, s 84(1) (the default period).
submission that there be a minimum period but submitted that it would be more properly around half.
[52] I am satisfied, having reflected on it, that it should be one-half of the sentence for the lead offence.
Formal sentence
[53] You should now stand Mr Taylor
[54] You are sentenced to terms of imprisonment as follows:
(a) On count 4, being the attempted sexual connection, you are sentenced to imprisonment for 5 years and 7 months. There is a minimum period of imprisonment of 2 years 10 months.
(b) On count 1, 3 ½ years.
(c) On counts 2, 3 and 6, 3 years for each offence. (d) On counts 7, 8 and 9, 3 years for each offence. (e) On count 5, 1 year.
[55] I am required by legislation, given your convictions, to give you a warning under what is referred to as the three strikes law. This is a warning of the consequences of another serious violence offence which is defined in the Act. You will also be given a written notice outlining these consequences which lists the serious violent offences.
[56] This is the warning I am required to give. If you are convicted of any serious violent offences, other than murder, committed after this warning and if a 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 be sentenced to life imprisonment. That will be served without parole
unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[57] You should stand down.
Woodhouse J