IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY
CRI-2015-025-876
[2016] NZHC 1620
THE CROWN
v
AHU STANLEY TAYLOR
Hearing:
15 July 2016
Appearances:
M J Thomas for the Crown
R Eagles for the Defendant
Sentenced:
15 July 2016
SENTENCING REMARKS AND SENTENCING
OF NICHOLAS DAVIDSON J
[1]
Mr Taylor you may remain seated until the end of these Remarks.
Charges for Sentence
[2]
Ahu Taylor, you are for sentence following your conviction for the attempted
murder of Mr Kahu Vincent following trial by jury. This charge carries a maximum
of 14 years imprisonment.1
[3]
You pleaded guilty to a charge of causing grievous bodily harm to
Mr Vincent, with intent to do so. That was laid in the alternative and you are
therefore not sentenced on that charge.
1
Crimes Act 1961, s 173(1).
R v AHU TAYLOR [2016] NZHC 1620 [15 July 2016] (Sentencing)
Facts
[4]
The background has been set out in the remarks of Justice Mander when
sentencing Mr Rowles for his part in the same incident, and also by the Court of
Appeal.
[5]
Mr Rowles was convicted on his plea of guilty, that with intent, he caused
grievous bodily harm to Mr Vincent. He did not face trial for attempted murder. With
modification to reflect my perspective of your actions, I adopt and expand some of
Justice Mander’s factual summary as follows.
[6]
The CCTV footage of the interior of the Night ‘n’ Day Convenience Store in
Wanaka shows your entering the store with Mr Rowles in the early hours of
9 May 2015.
[7]
The footage shows Mr Vincent in cheerful mood before you and Mr Rowles
entered the store. He greeted a number of other customers and interacted with them
in a physical and friendly way.
[8]
You came into the store and were engaged near the door while Mr Vincent
was at the far end talking with another customer.
[9]
Mr Rowles arrived and looked at his cell phone. Mr Vincent and he twice
interacted in the same friendly way. About the time of their second contact you
rolled onto your back when trying to get something from a lower shelf. Mr Vincent
was not involved. Still there was no sign of what was to come.
[10]
Mr Rowles then pointed to Mr Vincent. Whether he said anything is not
apparent. There followed a brutal and unrelenting assault on him, in which you and
Mr Rowles participated, lasting over four minutes. You landed the first heavy blow.
The three of you came together and Mr Rowles punched Mr Vincent while you were
holding him. He was bent over. Mr Rowles then began striking him, then kneed
him, while you held him. You and Mr Rowles then began to knee and kick him.
[11]
He fell to the floor, then got up and tried to stand his ground before
Mr Rowles attacked him violently and they went behind a counter while you stood
apart. You had put your hoodie up.
[12]
Mr Rowles held Mr Vincent while you punched his face and head. There was
a pause when Mr Rowles gestured to another customer to go away, but then the
attack continued. Mr Vincent was struck repeatedly.
[13]
He was dragged to the rear of the shop. He was entirely helpless in the face
of the combined attack and his intoxication. He was overwhelmed and he went to
ground.
[14]
The attack continued and Mr Rowles and you both repeatedly kicked and
stomped on Mr Vincent’s head.
[15]
The footage as it goes on is chilling. Mr Vincent was not just incapacitated
but was no longer moving as he lay on the shop floor.
He was in my view
unconscious or otherwise unable to react to the violence inflicted on him. He was
completely defenceless.
[16]
You not only kicked Mr Vincent in the head and upper body region, but in a
particularly frenzied part of your attack, you put your hands on shop fittings either
side of you, and propped in that way and also without that support, you repeatedly
struck with both feet or one foot to Mr Vincent’s head, more than 20 times.
[17]
Mr Rowles during the latter period tried to pull you away on several
occasions. You resisted that, or simply went back to the attack. Finally, Mr Rowles
did get you away, but then he delivered the last kick and stomp.
[18]
The footage in my view is clear that in this phase most of the strikes were to
the head. Your attack on Mr Vincent in this way, while he was defenceless and
unconscious or inert, continued for about one minute 20 seconds.
[19]
You were involved in the ways described throughout, but after Mr Vincent
went to ground your attack on him continued with such force so as to lead the Crown
to charge you with attempted murder.
[20]
I categorise your actions as extreme violence, to a defenceless and in due
course unconscious man. This was as savage a beating as one might imagine
without the use of a weapon.
The consequences
[21]
As Justice Mander said when sentencing Mr Rowles, the long term
ramifications for Mr Vincent remain uncertain, but he will not be the person he was.
He was airlifted to Dunedin Hospital then induced into a coma with significant
swelling and bleeding to the brain, and 12 days later was still in a coma. He
remained in the Critical Care Unit for three weeks with traumatic brain injury and
related complications.
[22]
A report describes his neurological deficits including cerebella dysfunction
affecting fine motor control and balance, cognitive dysfunction, fatigue and
headache.
[23]
His cognitive functioning is continuing to recover, but he remains very mildly
impaired globally and has some pronounced impairment in memory performance
and processing speed. He is still recovering.
[24]
He has made a determined effort to recover, and he does not embellish his
disabilities and dysfunction at all. Indeed, he takes an optimistic view of the position
of himself, as a partner, and a father, as part of his self therapy.
[25]
The effect on Mr Vincent and his family has been profound. He was so badly
injured that his family were grateful that he eventually awoke and was with them
again, but he has had to learn to walk, to speak, to eat, to shower and to ablute.
[26]
The impact on his family began with the stomach churning moment when the
Police arrived at their home. I am repeating only briefly what you have heard from
Ms Stevenson. His partner was told that Mr Vincent had been taken to Dunedin
Hospital in a critical condition, Status One, and they faced the bewilderment that
Mr Vincent was clinging to life because of a brutal and senseless attack on someone
they described as the most kind and caring person.
They were warned that
Mr Vincent would not look like himself and was on life support. When she saw him,
Mr Vincent’s partner was “utterly heartbroken”. They were to have celebrated their
10 year anniversary the next day.
[27]
As the days went by his partner says she tried to hold it together for the
children, but she was crying almost 24/7. During this time she faced the sudden and
extreme doubts about how they would live as a family. The children were shocked
by the sight of their father.
[28]
In that time of doubt, Mr Vincent’s partner faced the prospect that the
children’s father would not teach his children to ride a bike, to read to them, and kiss
them goodnight, and she asks “for what?”
[29]
But Mr Vincent pulled through. His partner stood beside him throughout and
devoted herself to his care as have other members of the family. They were however
deprived of their life as a family and doing normal family things, and in many ways
still are, since that fateful night.
[30]
Mr Vincent and his partner have had to face up to days ahead and where their
future leads. He finds it hard to express his feelings and emotions, becomes upset,
and he contrasts this with the “happy guy” who was not bothered by much before
this assault. He is not confident, he is not at ease in public, he becomes very tired
and as you heard, he cannot drive and he needs someone to do his food, shopping
and provide for him.
[31]
Fortunately, he has come a long way physically but still has a long way to go.
His mental state is much affected “and life now is not what it once was”. He has the
potential to return to work and indeed he has done so for very short periods of time.
[32]
As Mr Eagles realistically accepts, it is surprising the extent to which he has
been restored but again, as Justice Mander said, he has a long struggle ahead of him
with his family to put his life back together and to deal with likely but unknown
complications of his brain injury.
[33]
It seems secondary to mention the cost, but to a young family where two
incomes are important, so much time away from work and sudden financial cost
have seen many thousands of dollars racked up.
[34]
Mr Vincent says he lived a really active life but cannot do the things as he
used to. He says your attack on him which he too calls gutless has caused him so
much pain and suffering and to his family and friends, that it will make their lives
difficult for a long time.
[35]
I want to say something of the other victim impact statements.
[36]
His father was particularly affected when his son fought for his life in
intensive care in Dunedin, being told to say last goodbyes, and watching the pain of
Mr Vincent’s partner and his children. The community sang a video for Mr Vincent
and that induced the first positive sign of emotion from him.
[37]
His father-in-law says “we live in a world of choices and consequences.
Kahu chose to get something to eat before he came home, they chose to beat a man
to within an inch of his life”. This very accurately describes the random brutality of
your actions and those of Mr Rowles.
[38]
All these people stay strong for Mr Vincent, his partner and his children.
They all suffer the consequences of your attack.
[39]
Mr Vincent’s partner and Ms Stevenson describe your conduct as “gutless”,
and that is the same expression you employed when describing your own actions
having seen the CCTV footage. You have at least taken responsibility for your
actions by your plea to the charge of intentionally causing grievous bodily harm, but
not to attempted murder. You could not, when giving evidence at your trial, explain
what you did and why. You say that you remember nothing of the attack except:
…the main thing I remember [this is from the Transcript] the main thing I
remember is standing over Kahu and seeing how he, how he was lying on
the ground, and I just thought to myself, “What you have done?” but I don’t
remember any of the, the attack. I think it’s, was actually gutless,…
[40]
And this is you describing yourself.
Well, the family hears the
acknowledgment.
[41]
In writing to Mr Vincent and his family, you do not attempt to justify your
actions. I will return to your response, which is unequivocal and apologetic, and
I will also refer to the document that you put before me this morning which contains
what I consider relevant material as to how this sentence should proceed.
Mr Rowles and you
[42]
Mr Eagles has very carefully delineated your roles. I am careful not to
attribute to you alone specific injuries and consequences that may have been in part
caused by Mr Rowles. We simply do not know. Collectively, you and Mr Rowles
caused the injuries to Mr Vincent described, but your assault was the more violent
and sustained at the end when Mr Vincent lay motionless on the shop floor.
[43]
Your role is distinguished from his as you are being sentenced on a charge of
attempting to murder Mr Vincent, which you otherwise denied, not because you have
a full memory of events, but because as you said in evidence, you will never accept
that you tried to kill him.
[44]
You must however have been aware of the extreme violence to Mr Vincent by
Mr Rowles when you undertook your own severe beating of him.
Your pre-sentence report and personal circumstances.
[45]
The pre-sentence report refers to you at the time as 38 years old. You have
one conviction for violence in New Zealand in 2012 arising out of a domestic
incident, but have been convicted on violence charges in Australia, to which I will
refer.
[46]
The report says that this conviction and your conviction for violence in 2012
puts you at a high risk of causing harm to others, especially when in an intoxicated
state.
[47]
Your record in Australia is extensive. Relevant here, your first offence of
violence was assault occasioning actual bodily harm in 1995, for which you received
a sentence of supervision. You were convicted of malicious infliction of grievous
bodily harm, for which you were sentenced to imprisonment in 1997, and in 2008
you were convicted of assault causing actual bodily harm for which you were
imprisoned for six months, suspended. In 2012 you were sentenced in New Zealand
to 160 hours of community work for an assault on your partner.
[48]
It is nearly 20 years since your extreme violence in 1997 but the last 20 years
have been marked with these further incidents of violence.
[49]
I will turn to your background.
[50]
You were born in New Zealand but moved to Australia when you were about
six years of age. You came back to New Zealand only a few years ago and worked
as a chef. You have no family in New Zealand and want to return to Australia when
you complete your term of imprisonment.
[51]
There is no doubt, given the reports made, in particular by your mother, and
now in the letter that you have written to me today, that you experienced violence in
your childhood. The account of your childhood by yourself, by your mother and
your sister demonstrates graphically the violence to you, supplemented by a report
from your sister-in-law. The description of your later “life of fighting, illicit drug
use and alcohol abuse” fits with your record, and your involvement with an
Australian beach gang.
[52]
You lost a brother to illness and another in an accident. You have a son.
These losses and your natural sadness which you express in this letter to me today,
and having your own son, do not stand easily against your violence to this young
father, and his family.
[53]
Your sister describes your struggle to block out the memory of your
childhood. She describes you as a person of humour and good fun, but she too
recognises the adverse effect of alcohol on you.
[54]
You were composed at your trial, giving evidence you were articulate, your
letter to me is articulate. I consider you are an intelligent man with life skills. This
makes it even more difficult to understand that out of nowhere you engage in such
mindless, extreme and as you say, “gutless” violence. I have instinctive reservations
about what drugs you took that night and whether you knew what you took or not.
[55]
The Sentencing Act 2002 requires me to have regard to the need to hold you
accountable for the harm you have done and to promote a sense of responsibility or
an acknowledgement of that harm in you and I see in your correspondence to me that
you do accept the consequences which you will face by this sentence. I am required
to denounce your conduct and to deter you and others like you from committing such
offences in the future.
[56]
I have taken into account the gravity of the offending, its seriousness in
comparison to other types of offending, with reference to the maximum penalty
prescribed, the desirability of consistency with appropriate sentences, and to impose
the least restrictive outcome which the law requires.
[57]
Before I move to consideration of the structure of the sentence which is
prescribed by law, I want to simply refer very briefly to some of the other matters
which you have put before me today, because they are relevant not just to the
outcome of the sentencing, but to the way you respond, and to your future life in the
community.
[58]
You have explained in your letter to me today, the dilemma that you were
ready to plead to a grievous bodily harm with intent charge some time ago, and
indeed you did so at trial. But you could not accept that you intended to kill
Mr Vincent, hence you went to trial. The cost of that in terms of sentence as you
understand, is that you do not get the discount of 25 per cent as in Mr Rowles’ case
for a guilty plea. So it has a serious consequence in the outcome of sentencing.
[59]
Your letter, which I repeat is articulate, does not attempt to minimise your
accountability in any way at all. You make no excuses, you do not seek to use
psychiatric or psychological reports, you are simply taking this on the chin. But
what I take from it which is of concern to me in imposing sentence is not how it may
impact on the end sentence imposed shortly, but on what will come of your future
life in the community with the problems you describe in this letter. I refer to them
briefly.
[60]
With a background of having to flee a country to escape the person who
should have protected you in your childhood, your life seems to have devolved into
one of drug addiction and alcohol abuse and you have explained that this has taken
you to emergency care on eight occasions in your life, as you attempted to take your
own life.
[61]
You express a bitter disappointment in yourself. You describe yourself as an
addict who seems to relapse after months or at times years of sobriety, and you say
simply “I need help”.
[62]
I am going to read these words towards the end of your letter; “I am bitterly
disappointed in myself and I regret my actions every day.”
[63]
I bring these matters to account.
Starting point
[64]
Sentencing requires the starting point to reflect the gravity of your conduct,
and aggravating features before addressing mitigating factors, including the remorse
which you have expressed.
[65]
The aggravating factors include the extreme violence, which the Crown
correctly describes as gratuitous, unprovoked, and sustained. The serious injury that
resulted to Mr Vincent is aggravating, as a result of attacking his head, which must
have reflected in part your stomping with both feet, then one foot, when Mr Vincent
was unconscious or inert and already vulnerable through his intoxication, but even
more so under the combined assault,
once unconscious or inert, the assault
escalated.
[66]
Your offending falls within Band 3 as identified by the Court of Appeal in
R v Taueki.2 As such, the starting point is in the range of 9 – 14 years, and you heard
the Crown seek a starting point in the range of 12 – 14 years.
[67]
Taueki3 referred to cases where injuries would have an ongoing impact on a
victim’s enjoyment of life, when a starting point at the top end of Band 3 is called
for.4 That leaves the Crown to assert a starting point of 12 – 14 years and in doing
so Ms Thomas refers to the sentencing in August,5 Stewart6 and Connelly.7
[68]
August8 concerned a victim left in a permanently vegetative state from an
assault where the offender said that he was going to “bash someone”. After being
punched, he was kicked on his upper body and head, stomped on the head and he
lost consciousness. The attack continued. The offending took place over some
15 minutes and was described by the court as being as close to murder as was
possible.
The 14 years imprisonment starting point for intentionally causing
grievous bodily harm was within the range available, the violence being at the
“extreme end” of the spectrum as described by the court
[69]
In Stewart,9 an end sentence of 10 years was upheld for a charge of
intentionally causing grievous bodily harm. An 11 year starting point applied, after
conviction following trial. Mitigation largely related to previous good character and
2
3
4
5
6
7
8
9
R v Taueki [2005] 3 NZLR 372 (CA) at [41] (2).
Above n 2.
Above n 2.
August v R [2011] NZCA 91.
R v Stewart CA21/06, 31 August 2006.
R v Connelly [2008] NZCA 550.
August v R, above n 5.
R v Stewart, above n 6.
remorse. The victim was again left in a permanently vegetative state, surviving due
to his youth, and skilled surgery.
In Connelly,10 again for intent causing grievous bodily harm, a nine year
[70]
starting point was upheld, and a 10 year end sentence applied after the defendants
were convicted at trial. A lifeguard was beaten to the ground by drunken offenders
and multiple blows resulted in fractured vertebrae, with complications including
memory loss, speech and communication issues, and the victim unable to return to
work.
[71]
For attempted murder sentences, in R v Poole,11 the court said that the
sentencing levels and aggravating factors set out in Taueki12 have often been referred
to in sentencing for this charge of attempted murder, which carries the same
maximum penalty of 14 years as causing grievous bodily harm with intent. The
Court further held:
However, this Court has noted that slightly longer sentences are often
imposed for attempted murder, because it carries with it the more serious
finding of a murderous intent.
[72]
In R v Donnan,13 two co-offenders carried out violent assaults on teenagers
walking home. One offender repeatedly stabbed a victim, and in a second incident
the two offenders beating the victim, beat the victim with a wheel brace. Both were
convicted of wounding with intent to cause grievous bodily harm and one was
convicted of attempted murder. For attempted murder the offender was sentenced to
nine years imprisonment, based on a vicious premeditated assault involving violence
to the victim’s head. A starting point of nine years was uplifted to 10 years to reflect
the totality of the offending, before being reduced to nine years to reflect previous
good character.
[73]
In R v Daniels,14 the offending involved attempted murder and wounding
with intent to cause grievous bodily harm in the context of gun violence. Three
10
11
12
13
14
R v Connelly, above n 7.
R v Poole [2014] NZHC 1126 at [45].
R v Taueki, above n 2.
R v Donnan HC Auckland CRI-2006-044-8749, 22 August 2008.
R v Daniels HC Tauranga CRI-2003-047-415, 30 September 2004.
offenders were sentenced as secondary parties to each offence. End sentences of
12 years imprisonment were imposed for the attempted murder charges with 10 year
concurrent sentences for wounding with intent.
[74]
In R v Falani,15 the offender attacked with a knife causing serious injuries.
The attack came from behind and the attack was prolonged. The victim nearly died
and there was extreme and prolonged violence, the victim was vulnerable given the
anger of the attack and violence to the head, including slashing of the carotid.
A starting point of 10 years became the end sentence, with no relevant mitigating
factors.
[75]
In R v Walker,16 the defendant was charged with attempted murder of a
woman who was stabbed 15 times after she refused to comply with his wishes.
There was premeditation, a violent assault with a weapon that caused extensive and
lasting injuries to the victim and even though it did not target the head, the victim
was particularly vulnerable. A starting point of 10 years was adopted, uplifted by six
months to reflect previous violence convictions and a discount of 10 per cent given
for the defendant’s psychological condition.
[76]
The Crown seeks a starting point of 12 – 14 years imprisonment saying this
offending is more serious than Connelly17 and the most serious possible without a
weapon. It has the added element of intent to kill. Mr Vincent’s head was repeatedly
stomped on and kicked while he was unconscious or inert.
[77]
The injuries are not as serious as those sustained in August18 and Stewart19
and in particular there are no fractures. Mr Vincent is slowly recovering some
function, but the violence is arguably more serious because there were here two
attackers working together, and in sequence.
15
16
17
18
19
R v Falani [2014] NZHC 1879.
R v Walker [2015] NZHC 3214.
R v Connelly, above n 7.
August v R, above n 5.
R v Stewart, above n 6.
[78]
The Crown submits an uplift for murderous intent is warranted and refers to
R v Pengelly20 where a one year uplift was imposed on an offender who slit a
victim’s throat after having beaten him up. Therefore, the Crown points to a starting
point at the high end of the range, 13 – 14 years imprisonment.
[79]
For you, Mr Eagles I will say has advanced both at trial and in sentencing,
entirely appropriate, measured and realistic submissions.
[80]
In Poole,21 a range of violent offending by three offenders included a charge
of attempted murder. The defendant returned to the house of the initial victim and
shot at point blank range through a ranch slider door. The violence thus included the
use of a lethal weapon, premeditation, retribution or vigilante action, an attack to the
head, and moderate injuries. A starting point for the attempted murder charge of
11 years six months was adopted.
[81]
In R v Ae,22 the defendant was convicted on a charge of attempted murder of
his wife, a premeditated assault on a vulnerable person with a weapon causing
serious injuries, including the head. A starting point of nine years six months
imprisonment was applied for the attempted murder charge, reduced by 10 per cent
for previous good character, with a significant reduction for the guilty plea.
[82]
Mr Eagles submits that the Court of Appeal regarded the starting point in
Mr Rowles’ sentencing which you have asked me to bring to account carefully to
recognise his involvement, which I will, as within the range available to the Judge.
So to repeat, Mr Eagles submits that the Court of Appeal regarded the starting point
in Mr Rowles’ offending of 10½ years as “high”, but within the range available to
the Judge. Mr Eagles submits that I am able to take a different view and I should
adopt a starting point which is “fair and justifiable”, rather than “high”, and I should
adopt a 10 year starting point instead of 10½ years. He says that it is relevant that
the most serious and violent part of your assault occurred over a short part of the
overall attack by you and Mr Rowles.
20
21
22
R v Pengelly [2013] NZHC 527 at [35].
R v Poole, above n 11.
R v Ae [2016] NZHC 965.
[83]
You face this sentencing. You face the charge Mr Taylor because of what you
did in the last phase of the attack.
[84]
Mr Eagles also refers to Connelly,23 and also to Tuau v R,24 Haimona v R,25
and R v Tau’atevalu26. He distinguishes Connelly27 on the basis there were two
attackers and simultaneous attacks, whereas he describes the assault on Mr Vincent
as “sequential”. It was at times combined. At times sequential. It is your extreme
violence, to repeat, at the end which led to the charge of attempted murder.
[85]
The injuries in Haimona28 were horrendous and lifelong, and there were two
offenders, equally involved. A starting point of nine years imprisonment based the
sentence, which Mr Eagles says does not sit easily with the 10½ year starting point
for Mr Rowles.
[86]
For attempted murder with such extreme violence, without a weapon,
I consider the starting point can be no less, and should be no less than that in
Mr Rowles’ case of 10½ years described for grievous bodily harm with intent as
‘high’ by the Court of Appeal. With the aggravating factors described and with the
additional element of the intent to kill I consider the starting point for gravity should
be 11years 3 months. This makes it more serious than Connelly,29 a grievous bodily
harm case, but this is justified given the intent to kill. You have a record of violence
but it is 20 years since the most serious, of what are all serious incidents. But this is
of an entirely different degree. I will make a minor upwards adjustment for your
record before moving to the end sentence, but in the end I do not apply an
arithmetical calculation to this.
[87]
23
24
25
26
27
28
29
I come to the mitigating factors.
R v Connelly, above n 7.
Tuau v R [2013] NZCA 623.
Haimona v R [2011] NZCA 375.
R v Tau’atevalu [2014] NZHC 2770.
R v Connelly, above n 7.
Haimona v R, above n 26.
Above n 7.
[88]
The mitigating factors are really isolated to your remorse. You are prepared
to participate in restorative justice, but that is not presently sought by Mr Vincent or
his family.
[89]
You did suffer extreme disadvantage in your childhood, but you are a man
who has natural ability and some presence about you. You are intelligent and you
have skills. You faced reality before the court with your acknowledgment of
“gutlessness”. Your history of violence has never reached the level shown in this
case, and that is a matter of the greatest concern to me as the sentencing judge here.
[90]
A connection between your childhood and your behaviour is clearly made by
those who have written in support of you, including your closest family members.
Your offending is not excused by this, nor does it mitigate what you did, but it may
explain in part the extreme violence to someone you did not know, without cause.
[91]
Having regard to the way in which the assault unfolded, I repeat, I have some
reservations about the extent to which you were impaired that evening and why. You
acknowledged use of drugs and alcohol that night. One of the police officers who
spoke with you before this incident, only very shortly before, considered you and
Mr Rowles were intoxicated. But that too does not explain what followed. You sent
a rational text to a friend, very shortly after this attack. You hid your helmet after the
attack.
[92]
Yours was a very deliberate attack over a sustained period of time. The way
in which you put up your hoodie before the assault was elevated to such extreme
levels, reflected the malice and the intent in what followed.
[93]
The mitigating factors of consequence are the offer of financial recompense,
and your expressed remorse.
The offer of recompense is referred to in the
pre-sentence report and Mr Eagles says he has paid in some $3,000 to the court
today, which is before me now, to pay for emotional harm and reparation, and
I order that sum be applied to the benefit of the family.
[94]
You say you will pay a further $7,000 over time, and only time and intent will
determine whether you meet that indication. I accept that it is meant with sincerity
and I can only hope that you will in fact fulfil what you say you would like to do in
due course.
[95]
This is scant recompense but still goes some way towards assisting this
stricken family, and the Court of Appeal recognised this factor with Mr Rowles, as
must I.
[96]
Your remorse attracts most attention, with the usual scepticism that
statements of remorse are so often designed to mitigate a sentence, with questionable
underlying intent. Mr Vincent and his partner and family will have read your letter
to them and will make of it what they will.
It is, however, as with your
acknowledgement of ‘gutlessness’, realistic. Because you identify what you call the
“hate, disgust or other emotion” caused by you, which you say is exceeded in your
judgment of yourself. You say you cannot find adequate words to express your
apology, nor do you seek forgiveness, as you realistically cannot expect that. You
cannot give a reason why this happened, you say, as it makes in your words,
“no sense, none of it”. You are well aware of the feelings that will be held against
you, but you hope one day to face up to Mr Vincent and his partner and family direct
and to feel what you know must be their attitude towards you.
[97]
You have a son, and you say you therefore understand something of what
they have been and are going through. You conclude by saying “I am truly sorry”.
[98]
Mr Taylor, if you truly judge yourself in the way you have described, you will
find out why you acted in this way and you will deal to it. And for the sake of the
community and yourself, I hope your expressed intent to do so is fulfilled.
[99]
The remorse exhibited by Mr Rowles was recognised by the Court of Appeal
as based on an apology, regarded as genuine, with an offer to participate in
restorative justice. Cash by way of reparation was offered and accepted. The Court
said this warranted a discount of eight per cent for remorse alone, consistent with the
range in similar cases of Clark v R,30 Watene v R,31 Poi v R32 and Kavenga v Police.33
[100] Applying an eight per cent discount for these factors would produce an end
sentence of under 11 years. However, I return to a submission made by Mr Eagles
on your behalf.
[101] The sentencing calculation to this point reflects a starting point given the
aggravating features, not as high as the Crown seeks, but does not adjust for a guilty
plea which in Mr Rowles case was some 25 per cent. You did acknowledge grievous
bodily harm with intent. The impact on the end sentence in this case is stark. You
did not plead guilty on the basis that while you did not remember the incident, you
say you would simply not attempt to kill another person and you went to trial. This
means you do not get the discount for a guilty plea, and this substantially explains
the difference between Mr Rowles’ sentence and the sentence which I must impose.
[102] However, this was a joint attack, you have been convicted on a more serious
charge than that of Mr Rowles. When I examine the sentence against that imposed
on him, I consider there is a need to reflect the joint involvement and the quite
separate and sustained element of extreme violence by you towards the end.
[103] Mr Eagles is quite right that specific injuries cannot be attributed to any
element of the assault by you and Mr Rowles in particular as Mr Rowles too kicked
Mr Vincent to the head, and indeed his was the last kick.
[104] You both treated Mr Vincent as if he was of no worth at all, and in your case,
that his life was of no worth. The sentence reflects this and all other considerations.
He is a father, a partner, a family man, a good member of the community.
30
31
32
33
Clark v R [2013] NZCA 63.
Watene v R [2014] NZCA 381.
Poi v R [2015] NZCA 300.
Kavenga v Police [2015] NZHC 2599.
Sentence
[105] Mr Taylor, I ask you to stand.
[106] To recognise the involvement of Mr Rowles, I have reached the view that an
end sentence of 10 years eight months imprisonment is appropriate. This brings to
account your remorse and the payment you offer. Had you pleaded guilty, or the
Crown had accepted your plea to causing grievous bodily harm, you would still have
been sentenced to a longer term than Mr Rowles, reflecting the different gravity of
offending.
The minimum period of imprisonment
[107] Section 86 of the Sentencing Act empowers the court to set a minimum
period of imprisonment in relation to the particular sentence.34
[108] I am of the opinion that a minimum period of imprisonment longer than the
period otherwise applicable under the Parole Act is required to serve sentencing
purposes, to reflect the seriousness of this offending and as Ms Thomas has
submitted, to protect the public. I therefore set a minimum period of imprisonment
of five years.35
[His Honour asked counsel if they had anything else to add. They did not]
[109] Mr Taylor you may stand down.
……………………………………….
Nicholas Davidson J
Solicitors:
Crown Solicitor, Preston Russell Law, Invercargill
Eagles Eagles & Redpath, Invercargill
34
35
Sentencing Act 2002, s 86(1).
Section 86(2).