Taylor v Police HC Hamilton CRI 2007-419-91

[2007] NZHC 2040

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-091

BEVIN GEORGE TAYLOR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2007 (Heard at Hamilton)

Appearances: AJ Hamblett for Appellant

JP Mackie for Respondent

Judgment:      23 August 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

Legal Services Agency, Arcadia Building Worley Place Hamilton

Almao Douch, PO Box 19173 Hamilton

AJ Hamblett, PO Box 15 Hamilton

TAYLOR V NEW ZEALAND POLICE HC HAM CRI 2007-419-091  23 August 2007

Introduction

[1]      On 21 June 2007 Bevin George Taylor pleaded guilty in the District Court at Hamilton to the following charges: three charges of male assaults female, one charge of driving while disqualified, one charge of being without reasonable excuse in an enclosed yard and two charges of wilful damage.  He was sentenced to two years’ imprisonment on the three male assaults female charges.  Leave to apply for home detention was declined.  He was convicted and disqualified from driving for one year on the driving charge, and on the remaining three charges he was convicted and discharged.

[2]      The  victim  in  relation  to  all  the  offending  is  Mr Taylor’s  partner.    The charges arose  while Mr Taylor  was physically expressing  his  anger  towards  his partner.  The first incident of smashing a phone took place on 18 May 2007, and the other incidents took place on 24 and 25 May 2007.

[3]      In the first incident, Mr Taylor had become angry while going through the victim’s mobile phone.  He had thrown the phone on the deck, causing it to smash.

[4]      The second round of incidents started on the morning of 24 May 2007 when Mr Taylor was at the victim’s address.   He became angry with her when a male cousin arrived.  He threw her onto her bed, getting on top of her and placing both hands around her neck and squeezing her forcefully.  He did this for approximately

25 seconds before releasing her.   The victim has filed an affidavit  in this Court saying that the duration of the squeezing was only two to three seconds.  However, the police summary was not challenged at the time of sentence and I do not consider there is any appropriate basis for putting the initial statement of the duration to one side.

[5]      Following this incident Mr Taylor walked around the house and picked up a large pot with a plant in it which he threw to the ground, causing it to smash.  Back in the house he grabbed the victim by her clothes and threw her against the wall so that she fell to the ground.

[6]      The next day he went around to the victim’s address again.  He became very angry with her and after some intimidating behaviour he went right up to her face and started shouting at her.  He told her she had to sit down and that she was not going anywhere.  When she started feeding her young child he came up to her and said “I hate you” and spat in her face.  He then went outside and got into the victim’s car, which he began to drive despite being a disqualified driver.  He did not drive far, coming back and parking the car in a neighbour’s driveway.

[7]      Mr Taylor has accepted fault throughout and entered a guilty plea at the first possible opportunity.  Mr Hamblett for Mr Taylor submits that there was a failure by the District Court Judge to take into account the guilty plea and submits that the sentence was manifestly excessive.   After analysing a number of decisions he submitted that the appropriate starting point for sentence was nine months’ imprisonment.   He accepts there should be some uplift  for Mr Taylor’s previous convictions, but that there should be a significant discount of up to one-third for the early guilty plea.

[8]      Mr Mackie for the Crown acknowledged from the outset that the sentence was severe.   He nevertheless made submissions in support of the sentence.   He submitted that if an alternative sentence were to be imposed, the starting point should be 12 months’ imprisonment with an uplift for the bad past record and a discount for the early guilty plea.

The decision

[9]      In his decision the learned Judge referred to the procedural history of the case and the fact that the pre-sentence report recommended imprisonment.  He noted that the offending took place while Mr Taylor was still subject to release conditions in relation to a one-year term of imprisonment imposed in December 2006.   He also noted  Mr Taylor’s  record  of  drug  abuse  and  the  fact  that  he  had  on  previous occasions said he would do something about this but failed to do so.  He was of the view that Mr Taylor needed to attend a residential drug programme.  In sentencing Mr Taylor on the male assaults female charges, he noted that the assaults on his partner took place on a number of occasions, at least one of which was directly in the

presence of his three-year-old daughter.  He made no reference to the guilty plea in the reasoning part of his decision, and no apparent reduction in sentence for it.

Approach of the Appellate Court

[10]     Section 121(3)(b)  of  the  Summary  Proceedings  Act 1957  gives  the  High

Court the power to quash or vary a sentence if:

a)        There was no jurisdiction to impose it;

b)       It was clearly excessive or inadequate or inappropriate;

c)       The Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court.

[11]     It is not a proper basis for intervention that a sentence is stern and at the higher end of an acceptable range.    The sentence must  be  manifestly excessive before the Court will reduce it.

The guilty plea

[12]     Under  s 9(2)(b)  of  the  Sentencing  Act 2002  it  is  stated  that  one  of  the mitigating factors that the Court must take into account is “whether and when the offender pleaded guilty”.   The learned Judge does not appear to have taken this matter into account.  He did refer to the fact of the entry of the guilty pleas in the opening paragraph of his decision as he set out the background, but made no further reference to it.  The way in which his decision is structured indicates that the guilty plea has not been taken into account as a factor.  There is no doubt that the plea of guilty in this case was a substantial mitigating factor.   It should have been given weight in the sentencing process and it was not.

The length of the sentence

[13]     Given this error, and the submission that the sentence is manifestly excessive, it is necessary to go through a sentencing exercise following the approach of R v Taueki [2005] 3 NZLR 372 (CA) to see what would have been an appropriate sentence range in these circumstances. I bear in mind that even if an error has been made, if the sentence is nevertheless within the appropriate range the appellate Court will not interfere.

[14]     The maximum sentence that can be imposed for the offence of male assaults female is two years’ imprisonment.   It is a more serious offence than a summary offence  assault  (six  months’  imprisonment  or  a  $4,000  fine),  and  Crimes  Act common assault (one year’s imprisonment), and is less serious than assault with intent to injure (three years’ imprisonment) and the more serious violent crimes such as those considered in R v Taueki.

[15]     I turn first to the offending.  I do not regard this offending as among the most serious of its category.  There was no punching or kicking or acts of cruelty.  By far the most serious of the three assaults was the squeezing of the victim’s neck.  This must have been a painful and frightening experience for the victim.   However, it does not appear to have put her in fear for her life or to indeed have stopped her breathing.  On the basis of the victim impact report and the police summary it did not leave any bruises or marks.  In the police summary it is referred to as squeezing, not strangling.  The other assaults involved grabbing and throwing the victim against the wall and the spitting in her face.

[16]     All three assaults have the mark of a man being out of control.  It is not an excuse or mitigating factor but it is to be noted that his behaviour is seen by those who know him, including the victim, as being a response to his consumption of methamphetamine.  The actions do not have the mark of what is sometimes referred to as “wife beating”, where a pattern of savage bullying can be seen.  The victim is now very supportive of Mr Taylor, and even in her initial victim impact report did not indicate any particular emotional harm or any fear of him.

[17]     Given all these factors, and concluding that a sentence of imprisonment is appropriate, a starting point for sentence well under the two year maximum would appear to be appropriate.  I take into account that there are three charges, but given that they took place over a 24-hour period they represent something of a continuum of culpability for the purposes of a sentencing exercise.

[18]     I compare this case to others that have been referred to by counsel.   I was referred to R v Coker CA421/04 21 April 2005, where the appellant punched and slapped the complainant on the head, cutting her in the face and causing bleeding of the nose and the lip.  On one occasion he punched her twice on the leg and slapped her face, and made the complainant slap herself so that she could not accuse him of causing the bruises.  These were much more serious assaults than took place here. There were more of them, they occurred over a longer period and they were more savage and damaging.   Taking into account the significant aggravating  factor of earlier convictions including assault  and  male assaults female assault,  a term of

18 months’ imprisonment was upheld.   The starting point for the offending alone was likely to have been somewhat lower than that.

[19]     In R v Crime Appeal CA391/93 18 October 1993 another 18 month sentence of imprisonment was upheld for a male assaults female offence.  Again, this was an occasion where the offending was very serious, including punching around the face and head, kicking to the body, back and buttocks, pulling of hair, causing extensive bruising, a swollen face, a black eye and bloodied nose.   The victim required hospitalisation  on  one occasion.    There  had  also  been  a  long  history of  minor violence.  The starting point for the offending must have been, in R v Taueki terms, again somewhat lower than 18 months’ imprisonment.

[20]     Finally,  I  was  referred  to  Yeo  v  Police  HC  AK  CRI  2006-404-283

14 September 2006, Asher J.   In that case the appropriate starting point on appeal was fixed at eight months’ imprisonment.   The assault in that case was of a much more similar order to this case.  The appellant had been driving his girlfriend when he grabbed her around the throat, holding her head down and pulling her hair.   At one stage he punched her in the face.  She received a bruise on her upper arm but required no medical attention.   In that case, a number of instances of community

based sentence being imposed  for  male assaults  female cases were noted.   The offending in Yeo v Police was therefore more commensurate in terms of seriousness with the offending in this case. It only involved one single incident, rather than three incidents, but involved a punch to the face, and there was some residual injury.

[21]     I place some weight on these three comparable cases, which tend to indicate that the starting point should have been under one year’s imprisonment.  Taking all these factors into account I consider that the appropriate starting point should have been approximately nine months’ imprisonment and that a lower starting point could indeed  have  been  justified.    There were no  particular  aggravating  or  mitigating factors relating  to  the  offending  not  already  contemplated  by the  nature of the charge, which generally involves a victim of some vulnerability.

[22]     I turn to aggravating and mitigating factors relating to Mr Taylor personally. A particular aggravating factor here is a bad past record of a miscellany of drugs, driving and violence offences.   None of them appears to have been of the most serious order, although they were serious enough to have already earned Mr Taylor some terms of imprisonment.   Most importantly for the purposes of this exercise, Mr Taylor was convicted of male assaults female in 2001 and sentenced to nine months’ supervision, and in 2002 he was sentenced again for male assaults female and given two months’ imprisonment.  Between 2002 and now he has continued to offend  in relation to  drugs and driving.   Inevitably the Court’s response to this history  of  offending  as  a  serious  aggravating  factor  must  be  severe.    Here  a substantial uplift for his bad record was warranted, as high as six months.  For the purposes of this exercise I fix the uplift at five months, which increases the starting point to 14 months.

[23]     The most significant mitigating factor is the entry of the early guilty plea. This entitles Mr Taylor to up to a one-third discount on the penalty.  The probation officer expresses understandable concern about Mr Taylor’s ability to respond to courses and penalties.  However, it is also clear from the pre-sentence report and the supporting material, that he does feel genuine remorse, and wishes to find a way to improve his life.

[24]     Bearing in mind these factors and the fact that the starting point I have fixed could have been a month lower, I consider that the appropriate final sentence would have been in the region of nine months’ imprisonment.

[25]     Applying this conclusion then to the sentence imposed by the learned District Court Judge, I conclude that the sentence imposed of two years’ imprisonment was manifestly excessive.  There was also a specific error in failing to consider the guilty plea as a mitigating factor.   I bear in mind, of course, the other offences and the totality principle, but I do not think that this leads to any variation in the sentence to be imposed.  The wilful damage charges were all part of the same incidents of male assaults female as was the trespass charge.  There was no challenge to the sentence on the driving charge.

[26]     The  sentence  of  two  years  for  the  male  assaults  female  charges  should therefore be substituted by one of nine months’ imprisonment.

Home detention

[27]     I refer briefly to home detention.  The learned District Court Judge addressed this issue and decided that given the breaches of community-based sentences in the past by Mr Taylor, the circumstances of the offending, together with Mr Taylor’s drug abuse problem, leave to apply for home detention would be declined.  It seems to me to have been a decision that was entirely open to him and the reduction of the sentence  that  is  consequent  on  this  appeal  does  not  affect  that  conclusion. Mr Taylor’s continual offending since 1999 indicates that the granting of leave for home detention is not appropriate.

Result

[28]     The appeal is allowed.

[29]     A  sentence  of nine  months’  imprisonment  on  each  of  the  male  assaults female charges is substituted for the sentence of two years’ imprisonment.   The sentences are concurrent.

[30]     The District Court Judge’s conclusion on leave to apply for home detention and his sentences in relation to the other charges remain.

………………………… Asher J