Taylor v The the Queen - [2022] NZHC 912

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-91

[2022] NZHC 912

BETWEEN
DONALD LESLIE TAYLOR

Appellant

AND

THE QUEEN

Respondent

Hearing: 26 April 2022

Appearances:

A Shendi for Appellant

I L M Archibald for Respondent

Judgment:

3 May 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 May 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

TAYLOR v R [2022] NZHC 912 [3 May 2022]

Introduction

[1] Donald Taylor (the appellant) appeals against his sentence of 25 months’ imprisonment imposed by Judge P J Sinclair in the Auckland District Court on 9 March 2022.1 The sentence was imposed in relation to two charges of indecent assault of a female under the age of 12 years;2 and two charges of indecently assaulting a female aged between 12 and 16 years.3 In each case the charges were representative charges and covered offending extending over the period between 1 April 2012 and 18 September 2020.

[2] The appellant says that the Judge erred in her determination of the sentence by adopting a sentencing starting point that was too high and consequently imposed a sentence that was manifestly excessive. He contends that the appropriate and least restrictive sentence was one of home detention.

Background

[3] The two complainants are sisters. The appellant was in a relationship with their mother between 2011 and 2020 and resided with her and the two complainants. The eldest complainant (A) was born in October 2005, and the youngest (B) was born in December 2007. The appellant indecently assaulted each of the complainants approximately five to 10 times per year over an eight year period while he was living with their mother.

[4] When the appellant commenced living with the complainants’ mother in April 2012, A was six years old and B was four years old. While living at the first of three addresses that they occupied, the appellant indecently assaulted both complainants by touching them over their underwear or clothing and rubbing the area of their vaginas. Many of these incidents occurred while the complainants were in their beds asleep and resulted in them being woken up by the appellant’s actions. On one occasion the complainants were both in the lounge lying on a mattress on the floor and watching movies. A fell asleep under a blanket and was woken by the appellant crouching on

1      R v Taylor [2022] NZDC 4277 [District Court judgment].
2      Crimes Act 1961, s 132(3): carrying a maximum penalty of 10 years’ imprisonment.
3      Section 134(3): carrying a maximum penalty of seven years’ imprisonment.

his knees beside her. He lifted the blanket and reached under it to place his hand over her underwear and then rubbed her vagina. She reacted by kicking out at…

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 The the Queen

Details

AGLC: Taylor v The the Queen [2022] NZHC 912
Case: [2022] NZHC 912
Decision Date: 3 May 2022

CaseChat Overview and Summary

Donald Taylor appeals against his sentence of 25 months' imprisonment imposed by the Auckland District Court in relation to charges of indecent assault against two female complainants under the age of 12 years and between 12 and 16 years. The appellant argues that the sentencing starting point was too high and consequently imposed a sentence that was manifestly excessive, and that the appropriate and least restrictive sentence was one of home detention. The legal issues to be decided by the court were whether the starting point adopted by the Judge was too high and whether the appellant's offending warranted a sentence of imprisonment or if a sentence of home detention would be appropriate. The court found that while the starting point adopted by the Judge was stern, it was within range and did not constitute an error. The court also found that the appellant's willingness to undertake rehabilitative counselling and his remorse were factors that justified recognition by a discount from his sentence. However, the court found that a sentence of imprisonment was necessary and appropriate to meet the sentencing objectives of holding the appellant accountable for his offending and deterrence. The appeal was allowed, and the sentence of 25 months' imprisonment was quashed, replaced with a sentence of 21 months and two weeks' imprisonment.

Orders