Taylor v R
[2017] NZCA 53
•9 March 2017 at 10.30 am
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA420/2016 [2017] NZCA 53 |
| BETWEEN | AHU STANLEY TAYLOR |
| AND | THE QUEEN |
| Hearing: | 21 February 2017 |
Court: | French, Mallon and Duffy JJ |
Counsel: | M J Taylor-Cyphers for Appellant |
Judgment: | 9 March 2017 at 10.30 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against conviction is dismissed.
C The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by French J)
Mr Taylor was convicted at trial in the High Court of attempted murder. The trial judge Davidson J sentenced him to a term of imprisonment of 10 years and eight months with a minimum non-parole period of five years’ imprisonment. Mr Taylor was also ordered to pay reparation of $3,000.[1]
[1]R v Taylor [2016] NZHC 1620.
Mr Taylor now appeals against his sentence and conviction. The appeal was filed out of time, but the delay was not substantial and the Crown does not oppose an extension of time being granted. It is granted accordingly.
The evidence
The charge arose out of an unprovoked attack at a convenience store in Wanaka in the early hours of the morning. Mr Taylor was at the store with an associate Mr Rowles. For reasons that are not entirely clear, the two men approached another customer Mr Vincent who was unknown to them. Each of them punched Mr Vincent in the face.
Then ensued a prolonged and vicious beating which was captured on CCTV footage. Both men punched, kneed and kicked Mr Vincent. At one point, Mr Taylor held Mr Vincent in a headlock and punched him. While Mr Taylor maintained the headlock, Mr Rowles delivered a series of kicks and punches. As the attack continued, Mr Vincent was pulled or fell to the ground three times. On the third time, he did not recover and remained lying on the floor not moving.
For the next one minute and 39 seconds both Mr Taylor and Mr Rowles attacked Mr Vincent as he lay motionless on the floor. This included repetitive stomps on his face and head. Mr Taylor delivered 23 single-foot stomps to Mr Vincent’s head. On an additional three occasions, Mr Taylor placed his hands on a shop bench either side of him and lifted himself up so as to be able to stomp with both feet at the same time on Mr Vincent’s head.
In total, approximately 81 deliberate blows were made to Mr Vincent’s head or body.
As Mr Taylor left the scene, he threatened to put a bullet in the head of the shop assistant if the latter told the police anything. En route to his house, Mr Taylor discarded some of his personal items and then once home put his clothes and shoes in the washing machine and had a shower. When later arrested, Mr Taylor said “well he was a bit of a tough guy, I think we’ll call it self-defence. Nearly dead is nearly dead. He was a smart arse”.
Mr Taylor was charged with attempted murder and in the alternative a charge of intentionally causing grievous bodily harm. He pleaded guilty to the alternative charge, but not guilty to attempted murder.
Mr Rowles was not charged with attempted murder. He was charged only with grievous bodily harm with intent to cause grievous bodily harm. He pleaded guilty to that charge.
Mr Vincent sustained life-threatening injuries as a result of the attack. According to the medical evidence, his Glasgow Coma Score immediately after the attack was “as bad as a person can get” and “indicative of a very severe brain injury and deep coma”. After being airlifted to Dunedin hospital, Mr Vincent remained in an induced coma for 12 days with significant swelling and bleeding to the brain. He spent three weeks in the hospital’s Critical Care Unit with traumatic brain injury and related complications, followed by a prolonged period of intensive neurosurgical treatment and rehabilitation. In the opinion of a specialist called by the Crown, it is likely he will have residual disability.
Appeal against conviction
It is clear Mr Taylor feels aggrieved that he was charged with attempted murder and Mr Rowles was not. However, counsel for Mr Taylor recognised that this was a matter of prosecutorial discretion and not properly a ground of appeal against conviction. The concession was wisely made. There were in any event points of difference in the culpability of the two men that justified different charges. Although Mr Rowles may have delivered more blows including the last blow, he did at least try to pull Mr Taylor away on several occasions. Mr Rowles also remained at the scene until emergency services arrived. Of the two, Mr Taylor was more frenzied and, in the last phase of the attack used a higher level of violence.
The main ground of appeal relates to intent which was the critical issue at trial. In order to find Mr Taylor guilty of attempted murder, the jury was required to be sure that he intended to kill Mr Vincent.
Counsel for Mr Taylor acknowledged that the Judge had correctly directed the jury on intent,[2] but submitted there was insufficient evidence on which the jury could reasonably have found the requisite intent to kill. In support of that submission, counsel queried how the jury could determine with any certainty the point of time at which the intent to kill was formed. She also placed weight on the absence of any weapon as well as evidence of Mr Taylor kicking Mr Vincent in the ribs, submitting there was no logical nexus between targeting the ribs and an intent to kill. It was further argued that the jury was not entitled to rely on inferences from Mr Taylor’s post-incident conduct because his conduct was equally consistent with an intent to cause grievous bodily harm as it was with an intent to kill.
[2]It was suggested it might have been helpful had the Judge directed the jury in terms of English caselaw on intent, but counsel acknowledged that a failure to do so was not a ground of appeal. We are not persuaded a more elaborate direction based on concepts developed by the English Courts would have assisted the jury.
We do not accept those submissions. In order to determine intent, the jury was required to draw inferences from established facts. The Judge correctly directed the jury about inference reasoning and in our view the verdict was one that was reasonably open to the jury. In particular, we agree with the Crown’s submission that Mr Taylor’s actions during the attack, particularly the extreme violence used in the final phase supported the inference that in kicking and stomping on Mr Vincent’s head when he was motionless on the ground, Mr Taylor’s intent was to kill him. The length of the attack, the level of violence and the severity of the force used (as established by the injuries) all supported this inference. Significantly, the jury had the benefit of being able to view footage of the incident as it unfolded.
We also consider that Mr Taylor’s conduct after the action was relevant to the issue of intent in so far as it showed he was able to think clearly and must therefore have been aware of his actions and able to appreciate their consequences. This to negate suggestions that his thinking processes and hence intentions may have been clouded by drugs and or alcohol.
A second ground of appeal was that the jury were misled by the Crown’s closing. In closing, the Crown stated on three separate occasions that the only reason Mr Taylor would have continued the assault on Mr Vincent when he was motionless was that he intended to kill him. Counsel argued this was misleading because there were other equally consistent inferences the jury would have been entitled to draw.
We do not accept the statement has occasioned a miscarriage of justice or the risk of one. It would have been very clear to the jury that the statement was the Crown’s interpretation of events. The counter-argument — that Mr Taylor was locked into a course of conduct and that after Mr Vincent fell to the floor it was impossible to identify a single moment when what was a fight became something more than that — was put forcefully and well by defence counsel and was repeated again in the summing up. Further, the Judge specifically told the jury that what the lawyers said in their closing addresses was not evidence. He also told them “[d]on’t make the mistake of what you are told is the case, is the case on the evidence. It is a submission to you based on what counsel chose to put to you from what you have heard earlier in the week.”
We are satisfied that none of the grounds of appeal has merit. The appeal against conviction is dismissed.
Appeal against sentence
In sentencing Mr Taylor, Davidson J took as his starting point a term of imprisonment of 11 years and three months. The Judge then applied a minor adjustment upward (which he did not quantify) on account of previous criminal history before allowing a discount of eight per cent for remorse. This resulted in the end sentence of 10 years and eight months’ imprisonment.
On appeal, counsel for Mr Taylor submitted the sentence was manifestly excessive because the starting point was too high and because of disparity with the sentence imposed on Mr Rowles by this Court.[3] In the latter case, this Court considered the relevant authorities and held that a starting point of 10 years and six months’ imprisonment for Mr Rowles was high but within the available range.[4]
[3]Rowles v R [2016] NZCA 208.
[4]At [14] citing Tuau v R [2013] NZCA 623; Haimona v R [2011] NZCA 375; R v Connolly [2008] NZCA 550; and R v Tau’atevalu [2014] NZHC 277.
However, Rowles v R and virtually all of the other cases cited by counsel concern sentences imposed in respect of lesser charges than attempted murder.[5] The existence of a murderous intent clearly calls for a longer sentence. Taking into account the need to reflect Mr Taylor’s greater culpability for the extreme violence and the more serious offence, a starting point of 11 years and three months’ imprisonment was in our view appropriate.
[5]Rowles v R, ibid.
Contrary to a further submission made by Mr Taylor’s counsel, we also do not accept that Mr Taylor was entitled to receive a discount for his guilty plea to the lesser alternative charge. The guilty plea did not shorten or reduce the cost of proceedings in any meaningful way. In order to be able to establish intent, the Crown was still required to traverse the events of the evening and call medical evidence.
As regards comparison with the end sentence imposed on Mr Rowles (seven years and one month’s imprisonment) we acknowledge that was significantly less than the 10 years and eight months term imposed on Mr Taylor. However, the principal reason for that was the deduction Mr Rowles received for personal factors, in particular a guilty plea. For the reasons discussed above, we do not consider the Judge was required to give Mr Taylor a discount for his guilty plea. Mr Taylor’s real bone of contention is the decision to charge him and not Mr Rowles with a more serious offence. However, as already discussed, we consider that a distinction between the two is justifiable.
Finally counsel took issue with the imposition of a minimum period of imprisonment. However, in the circumstances of this case, we consider the imposition of a minimum period of imprisonment was entirely appropriate having regard to the criteria in s 86 of the Sentencing Act 2002. The length of the period imposed (slightly under 50 per cent of the end sentence) was also unremarkable and appropriate. We note that the same percentage (50 per cent) was also applied to Mr Rowles.
In our view there are no grounds for interfering with the sentence.
Outcome
The application for an extension of time to appeal is granted.
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Alistair D Paterson, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
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