THE QUEEN v MARK ANTHONY TAYLOR [2002] NZCA 239 (26 September 2002)

IN THE COURT OF APPEAL OF NEW ZEALANDCA227/02

THE QUEEN

V

MARK ANTHONY TAYLOR

Hearing:18 September 2002

Coram:McGrath J

Chisholm J

Chambers J

Appearances:J J McCall for Appellant

A Markham for Crown

Judgment:26 September2002

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JUDGMENT OF THE COURT DELIVERED BY CHISHOLM J

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[1] This is an appeal against a sentence of preventive detention imposed on the appellant in relation to one charge of rape and two charges of unlawful sexual connection to which the appellant had pleaded guilty.He has a previous conviction for rape and thereby qualified for preventive detention under both limbs of s75(1) of the Criminal Justice Act 1985.It is alleged that the sentence of preventive detention was manifestly excessive.

Background

[2] On 15 April 2002 the appellant travelled to a small coastal settlement in North Otago where he had arranged temporary work.He lived in a crib on the outskirts of the settlement which comprised a number of holiday cribs in close proximity to each other.

[3] After returning from a local hotel during the evening of 19 April 2002 the appellant injected himself with morphine at approximately 10.30pm and shortly thereafter made his way across the road to a crib occupied by a 56 year old woman living alone.He forced entry into this crib and upon being confronted by the complainant said that he wanted some petrol.The complainant told him where he could find the keys to her car and invited him to take her car.

[4] Despite the complainant's offer the appellant continued to advance upon his victim and ultimately threw her on her bed where he digitally penetrated her, raped her, and anally penetrated her.After he had unsuccessfully attempted to sexually violate her again he told his victim to perform oral sex on him.His victim's response that she was too old led to a torch being shone on her face after which she shone the torch on his face and discovered that he, like her, was of Maori descent.After the complainant spoke to him in Maori, asking him if he was, like her, of Ngai Tahu and referring to her own status as an older woman of a grandmother's generation, the appellant told her to get dressed and they went downstairs.Before the appellant left the complainant's house he told her he was staying across the road and he wrote his name and a contact telephone number on an envelope.He asked that the complainant give him a couple of days before she contacted the police.

[5] During the following week the appellant broke into several cribs and a motor vehicle.Various articles including a rifle and ammunition were stolen and he fired seven shots inside one of the cribs.Eventually he stole a motor vehicle and travelled to Christchurch where he was located on 28 April 2002. When spoken to he admitted most of the facts outlined and assisted the police in recovering the stolen firearm.This offending gave rise to seven charges of burglary, two of theft and one of unlawfully taking a motor vehicle, to which he pleaded guilty.

[6] At the time of the offending described above the appellant was on bail in respect of a charge of male assaults female.His partner of many years standing was his victim.The appellant is 40 years of age.He has a lengthy list of previous convictions including convictions for abduction and rape in 1993, which attracted concurrent sentences of seven years imprisonment, and two convictions for male assaults female.His list also includes two convictions for threatening to kill and a conviction for injuring with intent to cause grievous bodily harm.

Sentencing Decision

[7] The only redeeming feature that the sentencing Judge found in the sexual violation charges was that the appellant responded to the complainant when she spoke to him in the Maori language asking her to get dressed and then accompanying her downstairs.He also noted the appellant's "quite extraordinary conduct" in leaving his address and telephone number, that the appellant was co-operative when apprehended, assisted in the recovery of the rifle and that "ultimately and importantly" pleas of guilty were entered to all charges.It was also accepted that the appellant was genuinely remorseful.

[8] Having noted that the appellant had a longstanding alcohol and drug problem the sentencing Judge proceeded on the basis that the ultimate issue was whether the appellant should receive preventive detention.He noted that the psychiatric report before him contained a "guarded conclusion" which, on the Judge's interpretation, was "hardly an optimistic prognosis".The Judge concluded "by a significant margin" that there was no escape from a sentence of preventive detention.He considered that the appellant's present crimes against the background of his past offending permitted no other view than that the appellant posed an unacceptably high risk in the community, particularly to females.

[9] A sentence of preventive detention was imposed in relation to all the crimes of sexual violation.The appellant was sentenced to two years imprisonment for attempted sexual violation, 18 months for the burglaries, 12 months for theft and unlawfully taking a motor vehicle and 12 months for male assaults female.

Grounds of Appeal

[10] Mr McCall claimed that the sentencing Judge had placed undue weight on the psychiatric report which had expressly avoided answering whether there was a substantial risk of the appellant committing a specified offence on his release.It was claimed that the inability to answer that central issue undermined the weight that the Judge was entitled to place on the report.

[11] It was also argued that insufficient weight had been given to several factors including:acceptance of responsibility and remorse;empathy towards the victim; early guilty plea;the fact that the appellant had not been offered treatment to deal with his sexual behaviour and was willing to undertake such treatment;and absence of a final warning.It was submitted that in all the circumstances a finite sentence would have been more appropriate than a sentence of preventive detention.

Determination

[12] As the sentencing Judge observed, the appellant's current offending against the background of his past offending, which has been relatively regular since 1979, indicates that he represents an unacceptably high risk to the community.His history includes previous convictions for abduction, rape, and violence towards women.Although he claims to be remorseful, it is apparent from the psychiatric report that he was reluctant to discuss his past. Substance abuse has been a feature of his life since he was 13 years old.To date attempts to solve that problem have failed and we note that he injected himself with morphine before committing the sexual crimes on 19 April 2002. Two other matters emerging from the psychiatric report are alsoof concern.First,the appellant apparently acknowledged to the psychiatrist that he had kept the stolen firearm loaded and near him at all times and that he had implied that he would have put up resistance were the police to arrive and attempt to arrest him.Secondly, it seems that during the course of the interview the appellant made specific threats that he might harm prison staff and possibly an un-named associate.The psychiatrist took these threats sufficiently seriously to mention that they should be highlighted to prison authorities and the appropriate security measures taken.When these factors are coupled withthe latest offending and the appellant's attitude (expressed to the probation officer preparing the report on the male assaults female offence) that violence is not a problem area, the appellant must be regarded as extremely unpredictable.

[13] We reject Mr McCall's submission that the Judge placed too much weight on the psychiatric report.It identifies problem areas that will have to be addressed before the appellant could be safely released into the community. While the psychiatrist indicated that the appellant should be given the opportunity of receiving treatment to assess his ability to address his own history of abuse and is willing to receive this treatment, the protection of the public outweighs any possibility of him receiving that treatment in a non-custodial setting at this time.In response to Mr McCall's submission concerning the absence of a "final warning", there is no principle that would have obliged the Judge to take into account the absence of a final warning when the appellant was sentenced in 1993.

[14] On any assessment of the factors listed by this Court in R v Leitch [1998] 1 NZLR 420 at p429 a sentence of preventive detention was justified and a finite sentence of imprisonment could not achieve the necessary protective purpose.In particular a finite release date would not involve a screening to ensure that before he is released into the community the appellant had, or was able to, successfully overcome the characteristics which presently render him such a serious risk to the community.

Outcome

[15] The appeal is dismissed.

Solicitors:

Papprill Hadfield and Aldous, Christchurch for Appellant

Crown Law Office, Wellington