Taylor v R - [2012] NZCA 329

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/2012
[2012] NZCA 329

BETWEEN KIRSTEN FRANCIS TAYLOR
Appellant

AND THE QUEEN

Hearing: 3 July 2012

Court: Wild, Heath and Keane JJ

Counsel: J C Hannam for Appellant
M H Cooke for Respondent

Judgment: 25 July 2012 at 3 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

On 31 January 2012, after pleading on arraignment in the District Court at New Plymouth, Kirsten Taylor was sentenced to a term of imprisonment of four years, with a minimum non-parole period of two years.[1]
[1] R v Taylor DC New Plymouth CRI-2011-43-1464, 31 January 2012.
The charges to which he pleaded guilty arose out of events over a period between 7 March and 7 May 2011 and comprised three burglaries, one theft, and two instances of receiving. Judge Roberts also required payment of $1,750 reparation.
On this appeal Mr Taylor takes no issue with the five year starting point the Judge adopted for his lead offences, the three burglaries; a starting point which took into account his previous convictions, principally his 70 convictions for dishonesty including 21 convictions for burglary. He does not question the Judge's decision to impose the minimum non-parole period.
Mr Taylor's sole ground of appeal is that the two month discount the Judge allowed him for remorse was manifestly inadequate. He contends that it ought to have been some five—six months, reducing the end sentence to three years, eight months imprisonment.

Context

Mr Taylor committed the three burglaries with his girlfriend over four days. On the night of 4—5 May they broke into a house and stole a stereo, a DVD player, and a microwave oven. On 6—7 May, again overnight, they broke into a motel unit and took a flat screen television. That morning they broke into a computer retailer and stole two computers.
On 7 May 2011, in the early evening, they were stopped and arrested. In their car was a touch screen mobile phone stolen from Mr Taylor's mother's partner. The wheels on the car had been stolen in Hamilton in the month before. In the car was a list of six addresses, one of which was the burgled house. A search of the address where they had been living revealed the car's own mag wheels and a PlayStation 3. Other items were recovered from the home of the person to whom they had already sold some part of the property stolen.
Mr Taylor's pre-sentence report said that he had not long before been released from five years in custody and had experienced extreme difficulty. He did not know anybody. His mother was his sole source of support. He had reverted to what he knew. In the past he had offended out of boredom. He now offended out of need. He deeply regretted his actions. He showed genuine remorse. Then his report said this:
Mr Taylor takes full responsibility for the offending and has offered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v R

Details

AGLC: Taylor v R [2012] NZCA 329
Case: [2012] NZCA 329
Decision Date: 25 July 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kirsten Francis Taylor appealed against his sentence, arguing that the two-month discount for remorse was inadequate. Taylor was sentenced to four years imprisonment, with a minimum non-parole period of two years, following his guilty plea to three burglaries, one theft, and two instances of receiving, all committed between March 7 and May 7, 2011. The court was tasked with determining whether the two-month discount for remorse was manifestly inadequate, and whether it should have been five to six months instead, reducing the sentence to three years and eight months imprisonment.

The court considered the context of Taylor's offending, which involved three burglaries committed with his girlfriend over four days, as well as his pre-sentence report, which stated that he had not long before been released from five years in custody and had experienced extreme difficulty. The report also mentioned that Taylor had reverted to what he knew, offending out of need, and that he deeply regretted his actions and showed genuine remorse. The court also considered the Judge's decision to impose the four-year sentence, which was based on the system and purpose that Taylor had brought to his most recent offending, assisted by his girlfriend. The court found that the Judge was right to give priority to the system and purpose with which Taylor resumed offending so soon after his release and that he was right not to overrate Taylor's expression of remorse, however genuine.

The Court of Appeal dismissed Taylor's appeal, finding that the Judge made no error of principle in this respect or any other. The court held that Taylor's letters to the Judge and his victims, and his offer to meet them, were by themselves, at most, symbolic. His offer of reparation was more tangible but, as in the past, not one he was able to honour himself. Once again he relied on his mother, though she appears to have been hard pressed. Therefore, the appeal against sentence was dismissed.

Orders