Taylor v Police [2014] NZHC 1139 (27 May 2014)

Last Updated: 4 June 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-34 [2014] NZHC 1139

EVAN TAYLOR

v

_{NEW ZEALAND POLICE}

Hearing:	27 May 2014
Counsel:	S Bollard for Appellant J A Eng for Crown
Judgment:	27 May 2014

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] The appellant was sentenced on 31 March 2014 in the District Court to

28 months’ imprisonment on charges of threatening to kill, common assault and resisting police. As to the last two counts concurrent sentences of six months and two months’ imprisonment were imposed.

[2] The appellant appeals arguing that the sentence is manifestly excessive.

[3] In a succinct and, I think, uncontroversial recitation of the facts upon which the appellant was sentenced, the learned Judge recorded as follows – here I draw from her sentencing notes.

TAYLOR v NEW ZEALAND POLICE [2014] NZHC 1139 [27 May 2014]

Facts

[4] The victim was the appellant’s former partner. They had been together for about seven months. On 8 January, the victim was at home with her mother. When her mother left, the victim heard someone walking down the stairs next to the flat. She was afraid that it was the appellant but went to the door. She realised that it was indeed the appellant and tried to lock the door to prevent his entry but failed. The appellant pushed at the door and forced his way in. He pinned the victim against a bedroom door – that is between the door and a washing machine. She suffered minor injuries as a result.

[5] The appellant “screamed” at the victim that she was a “nark” for going to the police and he threatened her that she needed to get out of the Hutt Valley or he will kill her. The victim then screamed and tried to push the appellant away. She reached for the phone to call the police and the appellant left. She did indeed call the police and the appellant was arrested a short while later – although he had to be restrained which the police did by deploying a taser.

[6] The Judge records that the victim was already extremely afraid of the appellant and had obtained a protection order just two days before the attack. She felt the appellant was stalking her and seeking retribution for the steps she had taken in obtaining the protection order. The victim said that the appellant had in fact harassed her for months after separation and she remained afraid throughout.

[7] The appellant is 44 years old. He has an extensive history of convictions –

130 in all, according to the sentencing Judge, most of them arising from chronic drug addiction. The learned Judge recorded that at least 11 of those convictions relate to domestic violence. The appellant’s counsel challenges her assessment in that respect but nothing turns on that issue. The Judge recorded that three separate victims have now suffered at the hands of the appellant in relation to domestic violence offending. There have been two convictions for assault with a weapon, five for male assaults female, convictions for threatening to kill and a breach of protection order.

[8] In 2005, the appellant was sentenced to 10 months’ imprisonment on charges

of threatening to kill, breach of protection order and male assaults female – this in

relation to another partner. Breach of release conditions on that sentenced caused a further six month sentence.

[9] In 2009, there was a further short period of imprisonment for breach of protection order and assault – there had been five convictions for breach of protection order prior to that date.

[10] The learned Judge did record however that the appellant had shown current signs of a motivation to change. He wished to attend the Medium Intensity Rehabilitation Programme or other programmes on release.

[11] The sentencing calculation itself was set out at [14] of Her Honour’s

sentencing notes:

The starting point for the threatening to kill charge is three years. There is an uplift appropriate of six months for the assault and resisting police. That brings the starting point to 42 months’ imprisonment. You are entitled to

25 per cent credit for your early guilty plea, as well as credit for other mitigation. The end sentence in those circumstances is 28 months’

imprisonment. No release conditions can be applied given that it is longer than two years.

Arguments

[12] The appellant raises three points:

(a) the three year starting point is too high even if there was an uplift built into it on the basis of the appellant’s history;

(b) the six month uplift for totality was also too high; and

(c) the end sentence of 28 months is therefore manifestly excessive.

[13] The respondent argues that the sentence was at the upper end of the scale but not manifestly excessive. The respondent argued the starting point was high but justified. Mr Eng pointed to the fact that there was violence in the offending, that the appellant had been stalking the victim, there had been actual injury, an unlawful

entry into the complainant’s home and a protection order had been sought two days prior to the offending but not served.

[14] In relation to the six month uplift for previous convictions, the respondent argued that in fact an uplift of six to nine months was potentially available. This was because of the appellant’s extensive criminal history involving domestic violence offending sufficient to justify two jail terms in 2005 and 2009; one including a threatening to kill count and the domestic violence offending had related to three different victims.

Analysis

[15] There is no tariff case for threatening to kill. That is undoubtedly because the circumstances in which such threats are made will vary too widely.

[16] There are few cases where threatening to kill is the lead offence. There are many cases however where (as here) threatening to kill is part of a combination of offences centred around domestic conflict. These often involve assaults by males against females, sometimes with weapons, and breaches of protection orders. In this context, threatening to kill will usually be an ancillary rather than lead count.

[17] In Pathiranage v Police¹ – a domestic violence case involving counts of male assaults female, possession of a weapon and threatening to kill – Whata J had occasion to survey the recent cases fitting this broad category. He concluded that end sentences in this area tend to range from nine months to two years’ imprisonment although there are outliers above and below these marks that may be justified on their own particular facts. The upper end examples tend, on my read of the cases, to involve one or more of the following elements:

(a) serious violence;

_{(b) the use of a weapon;}

¹ Pathiranage v Police [2013] NZHC 229.

(c) repeated and potentially concerning breaches of protection order against the same victim; and/or

(d) a consistent history of domestic violence against the present or previous victims.

[18] In this case, the violence is modest and there is no weapon. There is none of the consistent breach of protection orders in relation to a single victim such as was found by Gendall J in the O’Connor case: evidence perhaps of a dangerous obsession in respect of O’Connor’s relationship (or former relationship) with the victim. There is an element of that in the present case (as there often will be in these cases) but is not of the order found by Gendall J in O’Connor.

[19] The learned Judge in this case did focus on the appellant’s previous convictions. As I have said, they included domestic violence offending including one threatening to kill, assaults and breaches of protection order in relation to two earlier victims. But she gave little credit for the five year gap since the last offending of this kind. That, it seems to me, ought to have been a matter of some significance. It separates this case from O’Connor where the Judge imposed a

‘condign’ sentence of two years four months.

[20] Overall, I consider that the final sentence was manifestly excessive because the starting point was too high. This was exacerbated by a totality uplift of a further six months to mark a moderate assault (admittedly in the victim’s home) and resisting arrest.

[21] I agree with counsel for the appellant that an appropriate – even stern – starting point for the threatening to kill count should have been 18 months. An uplift of six months for previous history is justifiable, even though the history is over five years old. That is primarily because, though old, it is troublingly similar to the current offending. But it could be no higher. A totality uplift is justified to reflect the assault and resisting police. Three months is appropriate in that matter. I would then give discounts for guilty plea (seven months) and remorse together with willingness to address the causes of the offending (two months) to bring about a final

sentence of 18 months’ imprisonment. There would also be release conditions requiring the appellant to complete the Medium Intensity Rehabilitation Programme

– that, in my view, being a crucial component of a just sentence in this case.

[22] The appeal is allowed, the sentence is quashed, and the sentence I have indicated is substituted.

Williams J