Taylor v R

[2018] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-6

[2018] NZHC 688

BETWEEN

JANINE MARY TAYLOR

Appellant

AND

THE QUEEN

Respondent

Hearing:	20 March 2018
Counsel:	N H Wright for Appellant C C Gullidge for Crown
Judgment:	18 April 2018

JUDGMENT OF THOMAS J

Introduction

[1]    Janine Taylor was sentenced on 16 January 2018 in the Gisborne District Court1 to three months’ home detention following guilty pleas to charges of possession of methamphetamine for supply2 and conspiracy to supply methamphetamine (with George Te Aho and Samuel Sheridan).3 Ms Taylor now appeals her sentence on the grounds that refusing to discharge her without conviction was in error, given the minimal role she played in circumstances of fear of violence.

1      R v Taylor [2018] NZDC 656.

2      Misuse of Drugs Act 1975, ss 6(1)(5 and 6(2), maximum penalty life imprisonment.

3      Section 6(2A)(a), maximum penalty 14 years’ imprisonment.

TAYLOR v R [2018] NZHC 688 [18 April 2018]

Factual background

[2]     Ms Taylor and Mr Te Aho have had an on-off relationship for the past 12 years and have three daughters together. Mr Te Aho was arrested on 12 November 2016 on what the summary of facts describes as unrelated charges. Given comments in the psychologist’s report referred to later in this decision, it is likely the arrest was for domestic violence towards Ms Taylor. As will become apparent, this type of behaviour was not unrelated but highly relevant to Ms Taylor’s offending.

[3]    Mr Te Aho was remanded in custody. Phone calls between the two were recorded, averaging three a day between 24 November to 30 December 2016. In these calls, Mr Te Aho and Ms Taylor discussed matters including, with varying degrees of transparency, methamphetamine dealing. It is accepted the conversations were generally one way, involving Mr  Te  Aho  issuing  directions  and  instructions  to Ms Taylor, becoming insistent, demanding and threatening if Ms Taylor displayed reluctance to be involved.

[4]    In the conversations, Ms Taylor confirmed she had given bags, scales and a phone to Mr Sheridan,  a  co-offender.  Mr  Te  Aho  told  Ms Taylor  that  he  and Mr Sheridan were a team and Mr Sheridan would keep the money turning over for him and generate more  money. Recordings, primarily between Mr Te Aho and Mr Sheridan, discussed the supply to others of methamphetamine. Conversations between Mr Te Aho and Ms Taylor show Mr Te Aho keeping her informed of some matters and issuing instructions.

[5]    The  conspiracy  to  supply  charge  covers  the  period  24   November  to   30 December 2016. The conservative total  estimate  of  the  amount  Mr Te Aho,  Mr Sheridan and Ms Taylor conspired to supply over this time is approximately seven grams of methamphetamine.

[6]    The possession for supply charge, where Ms Taylor was charged jointly with Mr Te Aho, concerned Ms Taylor complying with a direction from Mr Te Aho to obtain approximately half a gram of methamphetamine from Mr Sheridan and give it to two other associates.

[7]    When spoken to by the police, Ms Taylor admitted the discussions were about methamphetamine and that she had been given cash by Mr Sheridan as a result of drug sales which she had then deposited into Mr Te Aho’s prison account. She provided assistance to the police in interpreting the recorded conversations and contacted the police when she discovered a backpack had been missed in an earlier search of her home.

[8]    Ms Taylor has no previous convictions. It appears Mr Te Aho has convictions for domestic violence, drugs and firearms offences.

Section 27 report

[9]     A report pursuant  to  s 27 of the Sentencing Act  2002 was obtained for   Ms Taylor. It highlighted, in a way consistent with tikanga Māori, Ms Taylor’s history of being a victim of abuse and her current journey towards reconnecting with te Ao Māori. The report canvassed the considerable steps taken by Ms Taylor to educate herself, deal with past abuse by undergoing counselling, obtain employment and support her family and the community. The writer was of the opinion Ms Taylor’s journey would be detrimentally interrupted by a sentence of imprisonment or home detention.

[10]The report writer said:

Janine has worked very hard through difficult times to educate herself [and] her children and has indirectly influenced other staff and children at [the school]. Her absolute desire is to maintain the strong cultural ties she has made [for] herself, her tamariki and mokopuna. Having a secure position [at the school] will support the goals she has for her whānau.

[11]   The report asked the Court to take into consideration a number of points in passing sentence, including:

·Janine   has   worked   and   studied   full    time    to    gain    her  BA Māori through very difficult circumstance and now has the opportunity to use her talents to help raise the standard of [the school]

…

·The adverse effects that home detention or a prison sentence will have on Janine and her children, financially, emotionally and psychologically.

·Janine be considered for community work hours and/or disqualified without conviction.

…

·Janine is seen as an individual Māori female who is now choosing not to be affiliated to the Mongrel Mob and any gang culture.

·Janine is making independent positive changes for herself and her whānau.

·Janine is a hardworking mother and grandmother who is dedicated to keeping her whānau and community well.

Psychologists’ reports

[12]   There were two reports from psychologists, the first in relation to Ms Taylor’s ACC assessment and counselling and the second pursuant to s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 regarding Ms Taylor’s fitness to stand trial.

[13]   The ACC psychologist’s report outlined Ms Taylor’s history and made assessments regarding her mental state. The psychologist said Ms Taylor has peri-traumatic and severe post-traumatic stress disorder, avoidance mechanisms, and suicidality, saying she could be estranged from those around her due to distress and worry. Ms Taylor tends to be preoccupied with a fear of abandonment in relationships. The psychologist noted an imminent threat to Ms Taylor’s safety from Mr Te Aho, of which police were informed.

[14]The s 38 report canvassed Ms Taylor’s history, saying:

There are several factors that have led to Ms Taylor’s current difficulties including her offending behaviour. From a young age Ms Taylor experienced physical, sexual and emotional abuse, and neglect. She was also exposed to substance abuse, mental illness, and had multiple moves between caregivers, some of who allegedly sexually abused her. Ms Taylor is highly likely to have had poor attachment, given the on-going abuse, which would have impacted adversely on her development of stable and secure attachment relationships with others. On-going abuse and perceived rejection by both her parents and wider family members is likely to have led to strong beliefs about people being untrustworthy, the need to protect herself, and that the world was an unsafe place. Ms Taylor may also have experienced confusion about relationships and boundaries, which increased her vulnerability. Consequently, Ms Taylor did not form the ability to effectively manage these or other negative situations she would encounter in the future.

Long-term spousal abuse appears to have further compounded Ms Taylor’s difficulties and contributed to her already low coping skills, confidence, and self-worth. It is possible that she has also become sensitised to abuse and violence as a result of long term exposure, perhaps also causing her to feel helpless. Ms Taylor reports that she has dealt with her difficulties by avoiding or minimising conflict and has a tendency to give in to others, particularly her ex-partner to ‘keep the peace’. She continues to struggle with setting appropriate boundaries at the cost of her own needs. Her ex-partner’s involvement with gangs has also led to her being involved in dangerous and risky situations where she has feared for her safety, including physical and sexual threats. This has also led to Ms Taylor consistently feeling hyper- vigilant, on guard, and concerned about her and her children’s safety and further impacted on her mood, anxiety and coping abilities. This, amidst a backdrop of long-term violence and control from her ex-partner in the mix of a history of unresolved abuse and trauma, is the context in which the current alleged charges have taken place.

[15]   In deference to Ms Taylor’s privacy, I have not set out in detail the evidence of the abuse suffered by her from a very young age. The reports make for harrowing reading.

Pre-sentence report

[16]   The pre-sentence report in respect of Ms Taylor was extremely favourable, the writer observing that Mr Te Aho is well known to Community Corrections for his propensity  for  violence  and  drug  involvement.  The  report  writer  referred  to  Ms Taylor’s post-traumatic stress disorder and counselling, noting her significant remorse and expression of shame for her decision to be involved with methamphetamine. Ms Taylor’s overall likelihood of reoffending was assessed as low. Community work was recommended.

Other material

[17]   Other material before the sentencing Judge included a four-page letter from Ms Taylor, and a number of character references attesting to Ms Taylor’s contribution to the community and what she had achieved despite hard times and significant personal sacrifice.

[18]   A letter from her counsellor confirmed the trauma experienced by Ms Taylor in her past and that she is working extremely hard at learning new coping strategies. Her counsellor said:

It is important to note that Janine has fully accepted that she has made mistakes and has at times even acted against her better judgement in terms of these pressures, but she is very committed and dedicated to making positive life changes and with a hope towards a more secure future for herself and her children and whanau. It is my belief that she can do this with continuing support and her commitment.

[19]   The Campus Director of the Eastern Institute of Technology (EIT) confirmed Ms Taylor’s qualifications, noting she holds a certificate and diploma in Māori Studies from Te Wananga o  Aotearoa  and  recently  completed  a  BA  in  Māori  through Te Whatukura at EIT. The writer said:

Janine has been committed to studying to improving her potential job prospects so she can better provide for her family in the future.  Janine has   5 children ranging in age from 7 to 22, and has, for the majority of the time, been their sole caregiver.

Janine is a quiet achiever, and has a lot of potential. She is respectful of others, [and] is committed to ongoing improvement and achievement.

Janine has aspirations to be an educator/teacher – a role which would suit her manner, style and enable her to share the skills she has learnt through her own study. A conviction would seriously compromise her ability to be employed in either sector as she would not qualify under the Vulnerable Childrens Act. A Police check is required by the employer and a disclosed conviction would count against her.

[20]   A letter from a Kaiako at a Wananga confirmed that, in order for Ms Taylor to teach at the Wananga, she cannot have a criminal record.

[21]   Finally, there was evidence that Ms Taylor was a founding member of Whānau Whanaui Ora, a collective group of kuia/nannies in the Tarawhiti district offering support to whānau/families in crisis affected by methamphetamine and other illicit drugs.

District Court decision

[22]   The Judge took a starting point of 24 months’ imprisonment, saying this was warranted because of the aggravating factor that Ms Taylor had received calls with instructions from Mr Te Aho knowing he was in prison.

[23]   He regarded a discount appropriate to recognise Ms Taylor’s reduced culpability on the basis she followed Mr Te Aho’s instructions in large part due to his

bullying attitude during their relationship. He noted the psychologist had not directly identified a link between Mr Te Aho’s violence and the offending but was nevertheless satisfied by a slight margin there was a causative nexus. He reduced the starting point by six months.

[24]   He then addressed personal mitigating factors and included a discount of five months for steps towards rehabilitation, and three months for personal circumstances, including her responsibilities as a mother and grandmother. A further month was deducted for remorse and the full 25 per cent discount for guilty plea applied.

[25]   The Judge then addressed the application for a discharge without conviction. He noted his concern that this kind of offending has considerable effects on the community and the aggravating factor that Ms Taylor knew Mr Te Aho was in prison. He analysed the consequences of a conviction, concentrating on employment matters. He concluded that the gravity of the offending outweighed the consequences of a conviction, noting anything less than a sentence of home detention or imprisonment would be manifestly inadequate.

[26]The final sentence was three months’ home detention.

Submissions

[27]Ms Wright for Ms Taylor submits the Judge erred by:

(a)concluding a discharge without conviction was unavailable for serious drug dealing offences;

(b)focusing on the starting point for offending of this type, rather than making a proper assessment of the gravity of Ms Taylor’s offending specifically; and

(c)focusing solely on employment consequences of a conviction, rather than also addressing the psychological impact.

[28]   Ms Taylor does not challenge the home detention sentence as such. Her real issue is with the failure to discharge her without conviction.

[29]   The Crown submits the Judge made no error as a discharge is available only where the consequences of a conviction would be out of all proportion to the offence, which is not apparent in the present case.

Law

[30]Section 107 of the Sentencing Act provides:

107     Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[31]   An appeal against a refusal to grant a discharge without conviction proceeds as both an appeal against sentence and an appeal against conviction.4

[32]   A discharge without conviction requires a proportionality test. It is not a matter of discretion but a matter of fact requiring judicial assessment.5 It is therefore subject to standard appellate principles when a factual matter is assessed.6

[33]   On the basis that it is a factual assessment, Adams on Criminal Law dismisses suggestions the test for a discharge is a stiff one, only available in exceptional or extreme circumstances, or used sparingly.7 Disproportionality is either made out or it is not.

Analysis

Sentence process

[34]   Although putting the cart before the horse, I begin by addressing the Judge’s sentencing decision. This was the approach taken by the sentencing Judge and was

4      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8].

5      H (CA680/11) v R [2012] NZCA 198 at [30]–[36].

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

7      Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at SA107.01.

the first error. Before deciding on sentence, the Judge should have addressed whether Ms Taylor should receive a conviction. The sentencing exercise involved an assessment of the gravity of the offending, which is the first step of any s 107 analysis.

[35]   The starting point of 24 months’ imprisonment was not necessarily inappropriate. In saying that, I do have reservations about the analysis of Ms Taylor’s actual offending, particularly because the facts were not set out in the Judge’s sentencing notes. I have concerns that the agreed summary of facts might not have been before the sentencing Judge; rather he considered the earlier summary of facts prepared by the police. I say that for two reasons. First, because of the way in which the Judge treated the telephone calls between Mr Te Aho and Ms Taylor. The agreed summary of facts makes it clear that Mr Aho  was persistent and threatening and   Ms Taylor’s participation in the conversations was relatively minimal. The second point concerns Ms Taylor’s role in the conspiracy. It is clear the principal players were Mr Te Aho and Mr Sheridan.

[36]   Ms Taylor’s relative culpability was recognised with specific discounts. The Judge allowed a 25 per cent reduction for the background of domestic violence and abuse which contributed to the offending. That could be seen as in line with the 30 per cent taken by Dobson J in R v Cole, cited by Ms Wright.8 I note, however, that in Cole, the defendant was adamant she would continue a relationship with her abusive partner and Dobson J was sceptical of the claimed extent to which she was compelled to act due to the threat of violence. Neither of those factors arise in the present case, which would point to the availability of a larger discount.

[37]   Other mitigating factors were taken into account, with discounts for factors including rehabilitation and previous good character.

[38]   In my assessment, the Judge was significantly swayed by Ms Taylor’s plight and indeed it would be almost impossible not to be. There could perhaps have been further reduction in her sentence to recognise her assistance to the police and her contribution to the community, for example her pivotal role in establishing Whānau

8      R v Cole [2012] NZHC 2482.

Whanaui Ora. Overall, however, his approach in respect of a sentence calculation could not be considered in error.

Availability of a discharge without conviction

[39]   Ms Wright points to cases where serious offending has resulted in a discharge without conviction, including for  supply  and/or  importing  Class  A  drugs.9 Section 6(4) of the Misuse of Drugs Act 1975 provides:

… the Judge or court shall impose a sentence of imprisonment (within the meaning of that Act) unless, having regard to the particular circumstances of the offence or of the offender, including the age of the offender if he [or she] is under 20 years of age, the Judge or court is of the opinion that the offender should not be so sentenced.

[40]   Ms Wright submits that, if this analysis had been undertaken, the Judge would not have concluded a discharge was unavailable. I do not accept Ms Wright’s argument that the Judge believed a discharge was unavailable. He considered the application for a discharge and did not dismiss it out of hand on the basis of s 6(4).

Analysis of the application

[41]   The correct approach to the consideration of an application for a discharge without conviction involves the relevant sections of the Sentencing Act, ss 106 and

107. The principles for discharges without conviction have been well established in

R v Hughes:10

[10]      … the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11]      The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles … . The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

9      Rodrigo v Police [2014] NZCA 68; R v Hemard HC Christchurch T30/03, 11 April 2003; and

Bullock v Police [2012] NZHC 1374.

10     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (citations omitted).

[42]   The Court of Appeal in A (CA747/10) v R set out a three-step approach to s 107 assessments:11

[22] Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:

(a)Identify the gravity of the offending by reference to the particular facts of the case;

(b)Identify the direct and indirect consequences of a conviction; and

(c)Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.

[43]   The fourth step under s 106, if the Court determines the consequences are out of all proportion to the gravity of the offence, is to consider whether it should exercise its discretion to grant a discharge without conviction. Rarely will a Court not exercise its discretion to grant a discharge without conviction when the criteria for a discharge under s 107 are satisfied.12

[44]   I accept the defence submission that there were problems with the decision in this case because the Judge did not explicitly adopt this approach.

[45]   The Judge made the following statements regarding gravity in relation to the application for a discharge (emphasis added):

[22]      I then go back to my contention with Mrs Wright about the basic starting point. She has now conceded 24 months. The notion you could walk out of this Court without a conviction with a starting point of 24 months for serious drug dealing is absurd.

[23]      In my view, the gravity of the offending is such that even when one considers all the reduced mitigating factors, the consequences of a conviction

– the risk a future employer will not give you a fair opportunity because of your convictions for drug dealing – is not disproportionate to the seriousness of this offending. This was drug dealing. The dominant purposes in sentencing are always deterrence and denunciation. That does not exclude other relevant principles. In your case, rehabilitation is an obvious and strong factor in your favour.

[46]Notwithstanding his later qualification, the Judge clearly had the gravity of the

type of offending in mind, rather than the gravity of this particular offence. He

11     A (CA747/10) v R [2011] NZCA 328 (citations omitted).

12     Police v Filipo [2016] NZHC 2573 at [53(4)].

dismissed the prospect of a discharge on the basis of the gravity of the type of offending as reflected in the starting point.

[47]   The Judge referred to the dominant purposes in sentencing of methamphetamine dealing being deterrence and denunciation. There is nothing in the Sentencing Act 2002 or Misuse of Drugs Act 1975 to suggest, however, that a discharge without conviction is simply not possible when it comes to drug offending. There is no doubt it will be a rare case where an offender in respect of a class A controlled drug will be discharged without conviction. Nonetheless, as noted in Adams, it is a factual assessment. For the reasons which follow, in my assessment conducted afresh given the Judge’s error in approach, Ms Taylor can be considered such a rare, indeed exceptional, case.

[48]   The approach to considering the gravity of the offence is to consider all the aggravating and mitigating factors relating to the offending and the offender.13 As I outlined above, I have some concerns that the Judge did not have the correct summary of facts. He was, however, appropriately generous in his discounts although, again as noted above, there was scope for some further discount. The point is that even the Judge’s final conclusion, a sentence of three months’ home detention, could properly have been somewhat reduced.

[49]    Not only was Ms Taylor’s part in the conspiracy minimal but, in respect of both offences, she was acting as a result of her partner’s domination of her, something which had been a consistent and controlling factor in her life for a long period. Given Ms Taylor’s long history of abuse suffered from the earliest age, her ability to resist her partner’s demands was severely compromised. The gravity of the offending, although serious in that it involved methamphetamine dealing, was, in all Ms Taylor’s circumstances, very much at the lower end of the scale.

[50]   The identified direct and indirect consequences need not be shown to inevitably or probably occur. Rather, what is required is a real and appreciable risk that such consequences would occur.14

13     A (CA747/2010), above n 11; and Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.

14     Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].

[51]   There can be no doubt that convictions for methamphetamine offending would preclude Ms Taylor from entering the teaching profession, as the Crown conceded. Mr Gullidge quite properly referred to the need for bodies such as the New Zealand Education Council to be informed of material information as to would-be teachers. The Court should not deprive regulatory bodies the ability to make suitability assessments and decline to register those who do not meet their standards. However, the Court is concerned with a prior question of whether that consequence justifies a discharge. This case can properly be considered an exceptional case where it does:15 a conviction will be an absolute bar to Ms Taylor’s prospects of becoming a teacher and that bar is out of all proportion to the gravity of her offending.

[52]   Although at 50 years old Ms Taylor’s position can be distinguished from other cases where discharges without conviction have been granted for drug offending,16 Ms Taylor’s situation can be considered just as compelling in a different way. She has suffered what the Crown agrees was an undeniably shocking and abusive background from a very young age. She continues to suffer from that to this day. Her background undeniably contributed to not only the situation in which she found herself but also the way in which she responded to Mr Te Aho’s demands. It is difficult to conceive of a more challenging life. What Ms Taylor has achieved in the circumstances is nothing short of remarkable.

[53]   If the convictions stand, the result will be that Ms Taylor has turned her life around to  achieve something which  will  be denied to  her.  Similar to  the case of  R v Rakich,17 a conviction would put an end to all she has achieved. In those circumstances, I am satisfied the consequences of a conviction would be out of all proportion to the gravity of the offending and I exercise my discretion to discharge Ms Taylor without conviction.

[54]   By now Ms Taylor will have served all of her sentence of three months’ home detention. In the usual course, a discharge without conviction would not be granted without something being undertaken to mark the offending, for instance in the case of

15     Roberts v Police (1989) 5 CRNZ 34 (HC) at 36.

16     For example R v Rakich [2014] NZHC 3287.

17 At [164].

Rakich the defendant had undertaken voluntary community work. In this case, not only has Ms Taylor already made significant contribution to the community through the Whānau Whanaui Ora but she has also served a sentence.

Result

[55]   For the reasons given, the convictions are quashed and Ms Taylor is discharged without conviction in respect of both charges.

Thomas J

Solicitors:

Crown Solicitor’s Office, Gisborne