Taylor v R [2012] NZCA 329 (25 July 2012)

Last Updated: 1 August 2012

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.

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REASONS OF THE COURT

(Given by Keane J)

[1] 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]
[2] 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.
[3] 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.
[4] 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

[5] 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.
[6] 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.
[7] 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 to pay reparation in full to all the victims involved. He also states that he would like it to be known that he takes full responsibility for the planning and carrying out of the offences, stating that his partner at the time, ... , the co-offender, was not of a sound mind, and he led her to commit the offences. He stated that he persuaded her to co-offend and as she was heavily using methamphetamine she was not of a clear mind to judge.

[8] The Judge received from Mr Taylor a letter expressing his remorse. He received copies of letters of apology Mr Taylor had written to his victims and a letter from a local restorative justice trust stating that the meeting that Mr Taylor had hoped to have with his victims, especially his mother's partner, did not occur because they had declined. His mother's partner had said that Mr Taylor "needs to take responsibility for his actions and not to look to anyone to bail him out".
[9] This letter went on to say that Mr Taylor's mother, who had helped him financially in the past and still cared for him deeply, had issues of her own to face and was unable to assist him financially any longer.

Sentence

[10] On sentence Judge Roberts recognised the difficulty Mr Taylor must have experienced on his release from five years in custody. He accepted that Mr Taylor had shown genuine remorse. However, the Judge contrasted with that the further comment in Mr Taylor's pre-sentence report that his offending was increasing, not diminishing, and that he was at high risk of re-offending.
[11] Judge Roberts then pointed to the system and purpose that Mr Taylor had brought to his most recent offending, assisted by his girlfriend. He said this:

[17] You, of course, have a shocking history and you are approaching but 30 years of age. Experience has served you well. You plan your criminal activity. You identify your victims. You focus on high yield electrical equipment, immediate yield equipment, too, utilising windows of opportunity that present. No one is sacred when you offend. You offend against a man who might otherwise be termed family. You offend against people known to you.

[12] Judge Roberts also noted the reason why Mr Taylor's victims had not accepted his invitation to take part in a restorative justice conference. As to that he said:

[18] On the whole, your victims were not interested in restorative justice, something that you did seek to advance. Ideally, they would have you focus on reparation or reinstatement. Complete reparation or reinstatement, though, is but a vain hope.

[13] Despite that Judge Roberts did not rule out Mr Taylor's offer of reparation. In the past Mr Taylor's mother had paid reparation for him and the Judge had been told that she was to have been at Court that day to offer $2,000, but was unwell. As a result, Judge Roberts ordered Mr Taylor to pay $1,750 reparation, broadly half his victims' out of pocket expenses (their insured losses came to $11,283.80).
[14] From his five year starting point for the lead offences, the burglaries, as well as allowing Mr Taylor a 10 month discount for his plea, Judge Roberts allowed him a two month discount for remorse, and imposed the four year sentence under appeal.

Conclusions

[15] In contending that the discount for remorse was miniscule and manifestly inadequate, Mr Taylor contends that he did all that he could to make his expression of remorse real. He wrote to his victims and offered to meet them. That they did not want to meet him ought not to have detracted from his offer. He arranged, to the extent he could, for them to receive reparation. They have thus far received $750. He deserved, he contends, a discount of five—six months.
[16] We are unable to agree. The Judge was right to give priority to the system and purpose with which Mr Taylor resumed offending so soon after his release. He was right not to overrate Mr Taylor's expression of remorse, however genuine.[2] Mr 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.
[17] In the sentence he imposed the Judge made no error of principle in this respect or any other. Mr Taylor's appeal will be dismissed.

Solicitors:
Hannam & Co, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent

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[1] R v Taylor DC New Plymouth CRI-2011-43-1464, 31 January 2012.
[2] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].