w w w . L a w y e r S e r v i c e s . i n



Brian Frank Taylor & Others v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA Nos. 608, 636 & 665 of 2016

    Decided On, 14 December 2017

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE FRENCH & THE HONOURABLE MR. JUSTICE COOPER

    For the Appearing Parties: P.T. Eastwood, B.F. Taylor, R.B. Keam, C.M. Taylor, K.H. Maxwell, L.R. Taylor, K.S. Grau, M.L. Wong, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by Ks P)

[1] Ena Dung, a woman of 76 years, died as the result of the most dreadful neglect. At the time of her death she boarded with her daughter, the appellant Cindy Taylor, and the other appellants, Luana and Brian Taylor.[1] Cindy Taylor was directly responsible for Ms Dung’s care.

[2] The circumstances in which Ms Dung died were described in Wylie J’s sentencing notes:[2]

[12] On 16 January 2015, shortly after 9.00pm, a 111 call was made … to the emergency services. … [T]he operator [was told] Ms Dung had passed away. Ambulance officers attended and Ms Dung’s body was discovered.

[13] The ambulance officers described an extremely strong smell of urine and ammonia when they entered the house which got worse as they approached Ms Dung’s bedroom. They found Ms Dung lying on a green plastic sheet, in her own urine and faeces. She was described as looking like a 'scarecrow'. She had skin tears on her arms. She was emaciated, and naked from the waist down. When a police officer used scissors to remove her top, it was noted her clothing had almost fused to her skin through the open sores on her upper body. She had multiple pressure sores and at least one necrotic ulcer on the lower part of her body. There was evidence of arthropod activity along both of her legs.

[14] The photographs of Ms Dung’s body taken at the time, which were produced in evidence at the trial, were harrowing. The police were notified due to the state in which the body was found.

[15] Later post mortem examination revealed that, at some point, at least weeks but perhaps months earlier, Ms Dung had suffered 14 fractures to her ribs and sternum. The cause of those injuries was not clarified at trial and none of [the appellants] were charged with causing them. The medical evidence was that they may have occurred as a result of multiple falls. It was clear that the injuries would have been extremely painful for Ms Dung. They interfered with her breathing. They effectively prevented her from moving. She needed significant assistance but little or no help was given to her. Rather, she was simply put to bed. She was not provided with pain relief.

[16] The evidence at trial suggested Ms Dung’s health had declined significantly over the period of 10 – 20 days before she eventually died. Over this period Ms Dung was incapable of feeding herself, of moving, or of supporting herself in any way. She was completely dependent on the care of others in the household, in particular from [Cindy] Taylor.

[17] At some stage Ms Dung had started to urinate and defecate in her bed. This was not the result of incontinence. Primarily it was because she could not move. A green plastic sheet, which had been purchased by [Brian] Taylor, was put beneath her. She continued to urinate and defecate on this plastic sheet, and as a result, her bodily wastes pooled around her. She suffered chemical burning to her buttocks, pelvis and upper thighs from contact with her own urine and faeces over a prolonged period.

[18] Ms Dung had developed multiple pressure sores from not being rotated or turned. Over the period of some seven to 10 days prior to her death, one of these sores had become a necrotic ulcer. In one place, the ulceration was so severe that it had penetrated to the bone. One ulcer had turned gangrenous.

[19] Ms Dung had also developed broncho-pneumonia.

[20] Ms Dung at some stage had stopped eating and drinking. The evidence suggested that she may have gone for a period of some 10 to 15 days without food and for a period of some four to five days without water. Her body weighed only 29 kilograms at the time of her death.

[21] Ms Dung was 76 years old. She died of dehydration and malnutrition. Her fractured ribs and sternum were considered to be contributing factors leading to her death. There was nothing to suggest that Ms Dung was not otherwise in good health. The expert opinion was that she would have lived if she had been provided with sustenance, good nursing care, pain relief, good skin care, proper hygiene and the like.

[3] Cindy Taylor was found guilty of manslaughter by failing to provide Ms Dung with the necessaries of life.[3] She was sentenced to 12 years’ imprisonment on that charge. She was sentenced also to a further 15 months’ imprisonment for dishonesty offending to be served cumulatively. She had not advised superannuation authorities of the deaths of either her uncle or mother, whose accounts continued to receive superannuation payments. Cindy Taylor was in possession of EFTPOS cards that could be used to access the accounts into which those payments were made. She withdrew some $36,891. The offending concerning the uncle began approximately 18 months before the manslaughter offending. This further sentence is not challenged on appeal.

[4] Luana and Brian Taylor were found guilty of failing to protect a vulnerable adult, knowing that she was at risk of death or grievous bodily harm as a result of the omission of Cindy Taylor to care for her.[4] Luana Taylor was sentenced to six years and three months’ imprisonment, and Brian Taylor to six years’ imprisonment. The Judge considered that Luana Taylor was more culpable because she was the controlling influence in the house and because she attempted to conceal the offending in a phone call to a registered nurse on the Ministry of Health’s Healthline service on 15 January 2015, the day before the call to emergency services was made.

[5] All defendants appeal their sentences. Brian Taylor had also advanced a conviction appeal, but abandoned it on the morning of the appeal hearing.[5]

Cindy Taylor’s appeal

[6] Cindy Taylor had direct day-to-day responsibility for her mother. Ms Dung at some point largely withdrew from the world and the only contact she had for many months prior to her death was with the appellants. Cindy Taylor worked in Auckland for a carpark company. She worked long hours. She looked after her mother when she got home. She cooked and cleaned for her, and for Luana and Brian Taylor. At some point she effectively elected to discontinue looking after her mother.

Manslaughter by neglect - starting point in this case

[7] The Judge held that Cindy Taylor’s culpability was 'very high'.6 He said, 'your offending is a serious example of its kind, warranting a high starting point'.7 Her gross neglect and breach of accepted standards of human decency had resulted in her mother’s death. The Judge identified six aggravating features. First, Ms Dung’s vulnerability. That resulted from the appellants’ neglect, because Ms Dung was otherwise in good health. As the Judge put it:[8]

Gradually she became more and more vulnerable as her condition deteriorated, not because she was suffering from poor health, but because you were failing to look after her properly. Ultimately she had no means of helping herself, or even of obtaining help from others. She was bedridden. She could not move. She was in significant pain. Her survival became entirely dependent on those in the household and in particular, on you, [Cindy] Taylor.

[8] Secondly, gross breach of trust.[9 ]Thirdly, the extent of harm suffered by the victim, which could not have been more serious. As the Judge put it, 'it is difficult to imagine a death in worse or more degrading circumstances.'[10] Fourthly, the cruelty and callousness of the offending that included the fact that Ms Dung had fractured 14 of her ribs and her sternum, and would have been in severe pain for some weeks prior to her death.[11] Despite Cindy Taylor knowing that her mother was in extreme pain, she neither sought medical assistance nor offered her any form of pain relief. Ms Dung did not suffer from dementia; she was simply immobile. Despite that, she was left to urinate and defecate in her own bed, which must have caused her significant shame and anxiety. Incontinence pads could have been obtained, but were not. The Judge said: [12]

[i]n my view Ms Dung’s basic human dignity was ignored. [Cindy] Taylor your neglect and failure to protect your mother was cruel and callous in the extreme.

[9] Fifthly, the extent of neglect, which the Judge described as occurring over a 'prolonged period, at least two weeks, but probably longer'.[13] Sixthly, there was the important fact that Cindy Taylor was functioning fully in her own life, and was not incapable of looking after her mother.[14] Cindy Taylor was intelligent, holding down employment, and had accepted extra working hours at the very time her mother’s condition was getting worse.

[10] In sentencing Cindy Taylor, the Judge noted the absence of a directly relevant New Zealand precedent. He did however consider a number of overseas cases, to which we will refer again later.[15] In one of those cases it was submitted that the sentencing range for manslaughter by neglect in Canada was five to eight years’ imprisonment, whereas in England it was higher at nine to 15 years.[16] Wylie J found most assistance from three New Zealand cases - R v Filimoehala, R v Harris and R v Kuka - in which relatives failed to intervene after the assault of a child (or, in one case, an adult mentally-ill relative) who had been seriously assaulted by other family members, and starting points between eight and 10 years’ imprisonment were applied.[17] We discuss these authorities later in this judgment at [18]–[20].

[11] The Judge considered the culpability of Cindy Taylor to be greater in this case because she was directly responsible for her mother’s death, unlike the offenders in those three cases. A starting point of 12 years’ imprisonment was appropriate given the gross neglect and high level of culpability. It was, the Judge said 'a very serious example of this kind, and it warrants a strong deterrent sentence'.[18]

[12] Mr Keam before this Court submitted the 12-year starting point was manifestly excessive and that a starting point of eight years’ imprisonment would have been appropriate. He submitted cases involving the neglect of young or disabled children resulting in death should be viewed cautiously. There was, he submitted, a significant degree of difference in the carer vulnerability between an elderly adult, able to make decisions for themselves at some stage, compared with young or disabled children who were never in that position. He also submitted that the cases referred to earlier - R v Filimoehala, R v Harris and R v Kuka - involved serious assault by third parties and that placed those cases in a significantly more serious class than the present case of neglect.

[13] Mr Keam placed particular reliance on a Canadian decision, R v Noseworthy.[19] In that case, a first instance decision of a trial judge in the Ontario Superior Court of Justice, an adult son had failed to care for (and had assaulted) his elderly mother who suffered from dementia and incontinence for a period of nine months prior to her death. She lived in 'filth and deplorable personal hygiene'.[20] The Judge said it was 'the most horrific and unimaginable record of abuse and neglect that I have experienced as a trial judge'.[21] The neglect (and assaults) contributed to her death by exacerbating her existing heart disease, in particular by starvation. A sentence of seven years’ imprisonment was imposed in that case.

[14] We do not consider the starting point here was manifestly excessive for the crime concerned. We make four points.

[15] First, we do not accept that a distinction should necessarily be drawn between cases involving vulnerable elderly persons and vulnerable children. Section 195A draws no such distinction. A vulnerable adult is defined in the Crimes Act as a person 'unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person'.[22] Ms Dung was such a person. It could not be suggested that she had consented to the neglectful care which resulted in her own death. She was elderly, immobile, in serious pain and cut off from any external assistance beyond the appellants.

[16] Secondly, we do not find the decisions of courts in other jurisdictions of great assistance. Sentencing regimes in other countries are prone to differ from those in New Zealand. Each country has its own scheme, defined by a sentencing council, series of decisions or both, from which a broad and consistent sentencing scheme emerges. But that consistency tends to be national rather than international.[23]

[17] The case particularly relied on by Mr Keam was the Canadian decision in R v Noseworthy. The sentence of seven years’ imprisonment was an end point, not the starting point. There are some distinguishing aspects of that case. Mr Noseworthy pleaded guilty at once. He was given credit for good character. He exhibited remorse. It was apparent that he was himself a somewhat challenged and reclusive individual. All of these considerations might together have justified discount of 40 per cent or thereabouts, so that the starting point was effectively in the region of 11 years and eight months’ imprisonment. To the extent R v Noseworthy is relevant, it assists the Crown more than it does Cindy Taylor.

[18] Thirdly, this case involves significantly greater culpability than in R v Kuka, R v Harris and R v Hamer - the latter being another case Wylie J relied upon in his sentencing decision.[24] Those cases all involved death as a direct consequence of external events (family member assaults or misadventure) and as an indirect consequence of the offender simply standing by and failing to obtain medical care for the victim. In this case Ms Dung was an otherwise healthy woman. Her death was directly due to the neglect of Cindy Taylor.

[19] In R v Kuka, one of the cases involving Nia Glassie, the appellant was Nia’s mother. She was a bystander to protracted violence effected on her small daughter by other family members as a result of which Nia died. The starting point adopted by the Judge was nine and a half years’ imprisonment, upheld on appeal.[25] In R v Harris, a High Court decision, a mother failed to intervene when her seven-monthold child was assaulted by her partner over several weeks. In the last three days of the baby’s life, in particular, the mother knew the child would die if she failed to act. But she did fail to act. An eight-to-10-year starting point was considered appropriate by the trial judge.[26] In R v Hamer the appellant was a methadone user and qualified nurse who was aware that the victim had overdosed on methadone. Despite that he did nothing and did not call the ambulance for 17 and a half hours. He knew that the longer he waited the more likely it was that the victim would die. A starting point of 10 years’ imprisonment was adopted.[27] This Court said that sentence was near the top of the available range. We, however, regard the aggravating circumstances in this case as significantly greater than those in R v Hamer, calling for a substantially greater sentence.

[20] R v Filimoehala was somewhat different to those three cases. The offending was described by this Court as 'prolonged brutal and callous behaviour by the appellants towards a defenceless mentally-ill young woman who had come under the care of Mr and Mrs Filimoehala and was living in their home'.28 A combination of injury (as a result of assaults) and debilitation (including untreated peritonitis) caused the death of the victim. Mrs Filimoehala received a sentence of 13 years’ imprisonment for manslaughter by unlawful act (assaults) and Mr Filimoehala received a sentence of 10 years’ imprisonment for manslaughter for omitting to discharge their legal duty to provide the victim with medical care. Those sentences were upheld by this Court. It follows, in our view, that where the defendant is herself the direct cause of the death of the victim, rather than a third party with a legal duty to intervene who fails to respond to a situation caused by others, a starting point significantly in excess of nine to 10 years’ imprisonment is likely to be required.

[21] Fourthly, we accept that where manslaughter arises from a combination of unlawful assault as well as neglect that will in principle command a greater sentence than death caused by neglect alone. The sentence given to Mrs Filimoehala demonstrates that.[29] The fact of assault is an additional aggravating factor in the manslaughter sentencing exercise. But the point cannot be taken too far. As the England Court of Appeal said in R v Watts:[30]

[counsel for the appellant] accepts that cases dealing with manslaughter by prolonged physical assault can attract sentences of up to ten years’ imprisonment. He sought to draw a distinction between violence and what happened in this case. We find it difficult to make any such distinction. The prolonged history of starvation, dehydration and cruel neglect are appalling. It is difficult to think of a more serious case of manslaughter by neglect than this one.

[22] The same approach is appropriate in the present case. The abhorrent conditions in which Ms Dung was kept without pain relief, medical care or the most basic sanitation are comparable to physical assaults. This was as bad a case of sheer neglect causing death as could be imagined. A starting point of 12 years’ imprisonment was within the range available to the Judge, albeit at the upper end of that range.

Good-character discount

[23] The Judge noted that Cindy Taylor had no previous convictions and that her risk of reoffending was low.31 He said that normally she would receive some limited credit for her previous good character. But in this case he did not give such credit. He said:[32]

However here you breached a relationship of trust, and in such circumstances, a good character discount is not easy to justify. I also note that you were involved in dishonesty offending in relation to your uncle’s superannuation payments at the time of your offending against your mother. In my view, a good character discount is not justified in your case, and I decline to reduce your sentence to allow for it.

As a result, Cindy Taylor received no discount at all (the Judge having declined a discount for remorse - a point not contested on appeal). Mr Keam submitted that it was unduly harsh to give no credit for Cindy Taylor’s previous good character. The offending (including the dishonesty offending) occurred only after she moved in with the other appellants, at their request. Prior to that there was no indication of anything other than good character. A discount of up to 10 per cent, Mr Keam submitted, would have been in the interests of justice in the circumstances.

[24] Section 9(2)(g) of the Sentencing Act 2002 makes any evidence of the defendant’s previous good character a mandatory sentencing consideration, by way of mitigation. The essential rationale for a good character discount is a dual one. First, a defendant without prior convictions (and otherwise generally of good character) deserves some leniency for an offence that represents an isolated lapse from grace. Indeed, that singular fall is a punishment in itself.[33] Secondly, a greater capacity for rehabilitation (and reduced probability of reoffending) may be inferred from good character (positive community engagement and the absence of prior convictions). The presence of remorse buttresses both considerations, although it attracts a discrete discount. Conversely the absence of remorse impairs the prospect of a good character discount, for obvious reasons.[34] Professor Andrew Ashworth discussed the philosophical foundation of the discount or credit in his book Sentencing and Criminal Justice:[35]

Ordinary people do have occasional aberrations. Human weakness is not so unusual, especially in a context of peer pressure or multiple social disadvantages. The sentence system should recognize not only this, but also the capacity of people to respond to formal censure, and to ensure that their future conduct conforms to the law. This is embodied in the idea of giving someone a ‘second chance’. So the justification for the discount for first offenders rests partly on recognition of human fallibility, and partly on respect for people’s ability to respond to the censure expressed in the sentence. The justification for the gradual loss of that mitigation on second and third convictions is that the ‘second chance’ has been given and not taken …

[25] An absence of previous convictions is, of itself, evidence of prior good character and worthy of some recognition.36 Conversely the existence of prior convictions generally excludes application of the discount: the offending is not an isolated lapse and the prospects of rehabilitation are diminished by contrary experience. The absence of intervening offending after long distant convictions may in some cases restore a defendant to a reasonable expectation of a good character discount.[37]

[26] Where an offender accumulates a series of offences, for which they are to be sentenced, the position is more difficult. If the defendant had no prior convictions, it might be thought the first offence in time may deserve some discount. But the subsequent accumulation of offending gives the lie to the propositions that the offender is generally of good character, and the first offence is an isolated fall from grace. It may also call in question the reality of prospective rehabilitation. A judge is entitled in those circumstances to refuse to give a good character discount.

[27] In R v Zhang the respondent was convicted and sentenced for 39 charges ranging from kidnapping, demanding with menaces, aggravated robbery, threating to kill, assault with a weapon and indecent assault, all the offending being against foreign students in New Zealand. The charges arose from four discrete events. The respondent had no previous convictions but this Court declined to give a discount:[38]

This was not the more common case of a first offender being sentenced for a single offence. Any concession to be gained by reason of a previously unblemished record should have been and was dispelled by the prolonged and premediated nature of the offending in this case.

[28] In Edri v R the appellant had been convicted of one charge each of rape and indecent assault. [39] At the time of offending he had no previous convictions. But, in the four years between that offending and sentence he accumulated four convictions for unrelated offences of driving while his licence was suspended, causing loss by deception and taking or using a document for pecuniary advantage. The sentencing Judge declined an additional allowance for good character. On appeal, this Court noted the rationale, set out above at [24], that a good character discount reflects the punishment involved in falling from grace and the recognition of a greater potential for rehabilitation. While noting the appellant’s other offending was unrelated, this Court said it would be 'artificial and wrong to disregard the subsequent offending' when assessing good character.[40] No discount was therefore warranted. But a different approach was taken in Hinton v R.41 There the defendant was sentenced to six years’ imprisonment on five historic charges of indecent assault and one of sexual violation by unlawful sexual connection. Those matters occurred 11 or 12 years apart. A discount of one year was given on appeal for previous good character up until the time of the first offence. No such discount was given in respect of the later indecent assaults, despite the defendant having no prior convictions when he committed them.

[29] The approaches taken in these cases are not necessarily easy to reconcile. In Hinton v R the Court viewed 'good character' as applicable up until the commission of the first offence, despite the commission of the later offences. In Edri v R, where the defendant accumulated later unrelated offences, those trumped good character even in relation to the original offending. We consider there is room for some sentencing discretion in the decision whether to still extend a good character discount for the first offence in the face of subsequently accumulated offending. There will be some cases, perhaps rare cases, where that is appropriate. For instance, where the later offending is very minor in nature or where it is distant in time from the first offence. We do not suggest this is a complete catalogue of exception.

[30] The application of these principles to the sentencing of Cindy Taylor creates no difficulty, however. In our view the Judge was right to deny Cindy Taylor a discount for good character on the manslaughter charge. First, for the 18 months prior to that offending she had been committing serial dishonesty offending in relation to her uncle’s superannuation payments. Secondly, the manslaughter of her mother was followed by renewed dishonesty offending in continuing to claim her mother’s superannuation payments following her death. By no means could a discount for good character reflect a realistic and justifiable perception that here was an isolated lapse in grace by a person of otherwise good character who had good prospects of rehabilitation.

[31] It is conceivable that the sentencing of Cindy Taylor on the first dishonesty offending, involving her uncle’s superannuation, might have attracted a discount. But that is irrelevant for the present purposes. First, there is no appeal in relation to that sentence. Secondly, it is almost certainly excluded by the subsequent serious offending involving manslaughter. Thirdly, it would involve a credit of such temporal insignificance as to amount to mere tinkering with the sentence.

Conclusion

[32] We are not persuaded the sentence of Cindy Taylor was manifestly excessive.

Luana and Brian Taylor’s appeals

[33] Luana Taylor was, the Judge found, the controlling influence in the house.[42] For instance, Cindy Taylor paid all her wages to Luana Taylor along with the illgotten superannuation payments for the uncle and Ms Dung. That, along with the attempt by Luana Taylor to conceal the offending, was the reason the Judge cited for disparity in sentencing between Luana Taylor and her husband Brian Taylor.

[34] Mr Taylor initially appealed his conviction also. The morning of the hearing he formally abandoned that appeal. It had been premised in an allegation that his trial counsel had not advised him to give evidence (and he had been led to believe counsel could in effect give the evidence to the Court). Those allegations were comprehensively refuted by counsel in her affidavit in reply. It also exhibited a written letter of instruction recording that counsel had advised him to give evidence. The conviction appeal, sensibly, was abandoned. Rather ironically, counsel for Mr Taylor on the appeal sought to rely on trial counsel’s affidavit in advancing his sentence appeal.[43]

Duration of offending

[35] Ms Maxwell, who appeared for Luana Taylor, submitted that the Judge had erred in describing the offending as occurring over a period of months and that there was a prolonged breach. What the Judge said was:[44]

I also reject the submission made on your behalf [Luana] Taylor that the duration of offending was only over a 10-14 day period. The medical evidence was that Ms Dung’s weight went down over a period of months.

The Judge described the offending as a 'prolonged breach of duty'.[45]

[36] We accept that the Judge may have erred in placing reliance on Ms Dung’s weight loss as indicative of neglect for more than 10–14 days. The last weight measurement of Ms Dung prior to her death was six years earlier, when she was 52.2 kilograms. She weighed only 29 kilograms when she died. That is a difference of 23.2 kilograms. The evidence of the pathologist was that if she had stopped eating she could have lost 15 kilograms in just two weeks. However, we do not think that this makes a material difference to the Judge’s reasoning in sentencing any of the appellants. It was apparent from the circumstances of the scene of the crime that there had been prolonged and almost complete neglect of Ms Dung for a period of at least two weeks, and probably more. For instance, the plastic tarpaulin obtained to protect the mattress on Ms Dung’s bed had been acquired by Brian Taylor in December 2014, and the mattress was stained on both sides. Even if the offending was limited to 10–14 days duration, that is properly described as prolonged. In that respect, for instance, it is distinguishable from the mere 17 and a half hours’ neglect leading to death in R v Hamer.[46]

[37] There is nothing, therefore, in this point.

Starting point

[38] The Judge described the offending by Luana and Brian Taylor as 'egregious'.[47] He held that they had deliberately closed their eyes to what was occurring.[48] It was inherent in the offence for which they were convicted that they were aware that Ms Dung was at risk of death. They turned a blind eye to that, and she died. That was a major aggravating feature of their offending, a point Luana and Brian Taylor do not contest on appeal. Despite the arrangement made that Cindy Taylor care for her mother, they must have known that Ms Dung needed care and assistance. They must have been able to smell the stench coming from her room and Brian Taylor had bought air fresheners and insecticides for Cindy Taylor to use. As the Judge said, that clearly suggested they were aware of the smell and insect activity in the room.[49] Luana and Brian Taylor, the Judge found, were aware that Ms Dung was not eating properly. Brian Taylor bought the green plastic tarpaulin some weeks before Ms Dung’s death to save the mattress from staining. As the Judge put it:

[t]here were very many indicators of risk to Ms Dung. You ignored all of them. You both turned a blind eye to Ms Dung’s deteriorating condition and suffering.[50]

[39] There was also the extent of their indifference. Neither had an excuse for not stepping in. The Judge expressed doubt about the alleged disability of Luana Taylor and found that was not an excuse in any event. There was nothing to stop them from summoning medical assistance. They were not financially constrained: Luana Taylor had secured the payment to herself of all of Cindy Taylor’s wages and any other monies Cindy Taylor received.

[40] Counsel for Luana and Brian Taylor placed particular reliance on the High Court decision in Heppell v R, a case under s 195 where the defendants had failed to care for the elderly mother of one of them.[51] That also involved an elderly woman (then 91 years of age) living in appalling neglect with an adult child. There are a number of points of distinction with the present case, however, most notably that the victim there did not die as a result of her mistreatment. In addition, the victim was not malnourished and it would appear implicit in the finding that the offenders were not themselves fully functioning adults. The Judge adopted a starting point of four years’ imprisonment, which was further reduced for remorse, previous good character and early guilty pleas. Perhaps surprisingly the Heppells appealed to the High Court. Their appeal was dismissed by Gilbert J. There was no Crown appeal against sentence.

[41] In our view the present case is substantially worse than Heppell v R. The primary distinguishing feature, as we have noted, is the death of the victim as a direct result of the neglect which Luana and Brian Taylor were aware of and did nothing to avert. This is not, it may be noted, a case where a family member is aware of suffering but is unable or reluctant to intervene and gain assistance because of the overshadowing power of another member of the family.

[42] In our view a starting point of six years (as against a maximum of 10) is within range and not manifestly excessive.

[43] In the case of Luana Taylor, we agree that the effort to conceal the offending and her effective position of authority within the household justify an increase in that sentencing starting point to six and a half years. Ms Maxwell did not argue otherwise.

[44] Counsel for Brian Taylor submitted that the Judge overstated his client’s culpability. Luana Taylor was the dominant personality in the household. Brian Taylor was not Ms Dung’s primary caregiver, and was often absent from the house.

[45] We do not accept that submission. The Judge saw and heard the evidence at trial. The same considerations that apply to Luana Taylor apply to Brian Taylor. He was evidently able-bodied and had associated advantages therewith. He was responsible for the acquisition of air fresheners and insecticides. He acquired the green plastic tarpaulin to protect the mattress. Also, the Judge noted, he did nothing to summon assistance for Ms Dung, was not financially constrained from assisting and simply deliberately closed his eyes to what was occurring. Given Luana Taylor’s more dominant position and dishonesty, the distinction and culpability was reflected in the six-month difference between starting points. That was, in our view, entirely appropriate. The Judge did not overstate Brian Taylor’s culpability. The sentence of six years’ imprisonment was available and appropriate.

Conclusion

[46] It follows that Luana’s

Please Login To View The Full Judgment!

and Brian Taylor’s sentence appeals fail also. Their sentences were not manifestly excessive. Result [47] The appeals against sentence are dismissed. ----------------------------------------------------------- [1] Luana and Brian Taylor are a married couple. Cindy Taylor is not a blood relative but at some point adopted their surname by deed poll. [2] R v Taylor [2016] NZHC 2846. [3] Crimes Act 1961, s 150A, 151, 160(b), 171 and 177. [4] Crimes Act 1961, s 195A. [5] See [34] of this judgment. [6] R v Taylor, above n 2, at [72]. [7] At [72]. [8] At [73(a)]. [9] At [73(b)]. [10] At [73(c)]. [11] At [73(d)]. [12] At [73(d)(iv)]. [13] At [73(e)]. [14] At [73(f)]. [15] See [13], [17] and [21] of this judgment. [16] R v Taylor, above n 2, at [77]. [17] R v Filimoehala CA367/99, 16 December 1999; R v Harris HC Wellington CRI-2004-078-1816, 26 August 2005; and R v Kuka [2009] NZCA 572. [18] R v Taylor, above n 2, at [82]. [19] R v Noseworthy (2007) Carswell Ont 9604 (ONSC). [20] At [6]. [21] At [3]. [22] Section 2(1), definition of 'vulnerable adult'. [23] See for example R v Taueki [2005] 3 NZLR 372 (CA) at [18]; and R v AM [2010] NZCA 114, [2010] 2 NZLR 750 at [31]. [24] R v Taylor, above n 2, at [81] citing R v Hamer [2005] 2 NZLR 81 (CA). [25] R v Kuka, above n 17. [26] R v Harris, above n 17, at [19]. [27] R v Hamer, above n 24, at [69]. [28] R v Filimoehala, above n 17, at [5]. [29] See also R v Witika [1993] 2 NZLR 424 (CA) where sentences of 16 years’ imprisonment were upheld. [30] R v Watts [2001] EWCA Crim 1427, [2002] 1 Cr App R (S) 56 at [34]. In that case a mother with a severe personality disorder had utterly neglected her nine-month-old son, who then died of severe malnutrition and dehydration. A life sentence was reduced on appeal to ten years’ imprisonment. It is particularly relevant that the appellant there had entered a plea of guilty. [31] R v Taylor, above n 2, at [85]. [32] At [85] (footnote omitted). [33] R v Findlay [2007] NZCA 553 at [89]–[91]. [34] At [101]. [35] Andrew Ashworth Sentencing and Criminal Justice (6th ed, Cambridge University Press, Cambridge, 2015) at 211–212. [36] See for example R v Hockley [2009] NZCA 74 at [30]; Manawaiti v R [2013] NZCA 88 at [13] and [20]; and Quinlan v R [2013] NZCA 634 at [37]. [37] See for example R v Williams CA190/90, 16 October 1990 at 3: this Court stated that the respondent’s previous convictions were 'so long ago that they must be disregarded'. And in Manawaiti v R the appellant had two traffic related convictions, but these did not appear to intrude upon the Court’s assessment of his character: Manawaiti v R, above n 36, at [13] and [37]. [38] R v Zhang (2004) 20 CRNZ 915 (CA) at [26] approved in R v Shone [2009] NZCA 183 at [25]. [39] Edri v R [2013] NZCA 264. [40] At [33]. [41] Hinton v R [2016] NZCA 269 at [102]. [42] R v Taylor, above n 2, at [111(d)(iv)]. [43] It referred to the likelihood of Mr Taylor electing not to give evidence in accordance with the wishes of his wife. [44] R v Taylor, above n 2, at [110]. [45] At [115]. [46] R v Hamer, above n 24. [47] R v Taylor, above n 2, at [110]. [48] At [110]. [49] At [111]. [50] At [111]. [51] Heppell v R [2017] NZHC 64.
O R







Judgements of Similar Parties

31-08-2020 James Leonard Toia Versus The Queen Court of Appeal of New Zealand
30-06-2020 Van Dung Nguyen Versus The Queen High Court of Australia
05-06-2020 Steven Robertson Versus The Queen Court of Appeal of New Zealand
02-06-2020 Wai Yew Chai Versus The Queen Court of Appeal of New Zealand
26-05-2020 Michaela Patricia Irwin Versus The Queen Court of Appeal of New Zealand
19-05-2020 Melissa Mary Haereroa Versus The Queen Court of Appeal of New Zealand
13-05-2020 James William Manuoa Te Hiko Versus The Queen Court of Appeal of New Zealand
11-05-2020 Phillip Richard Joe Versus The Queen Court of Appeal of New Zealand
08-05-2020 Malagi Vela Versus The Queen Court of Appeal of New Zealand
07-05-2020 Sammy Ayoun Soud Versus The Queen Court of Appeal of New Zealand
30-04-2020 Marshall James Dennis Joyce Versus The Queen Court of Appeal of New Zealand
28-04-2020 Kane Joseph Manoah Versus The Queen Court of Appeal of New Zealand
22-04-2020 Deo Narayan Versus The Queen Court of Appeal of New Zealand
07-04-2020 George Pell Versus The Queen High Court of Australia
03-04-2020 James Andrew Mills Versus The Queen Court of Appeal of New Zealand
24-03-2020 Jacob Lowenstein Versus The Queen Court of Appeal of New Zealand
23-03-2020 Te Iwi Ngaro Rameka Versus The Queen Court of Appeal of New Zealand
19-03-2020 Richard Tuwhakakorongo Te Roroa Te Kani Versus The Queen Court of Appeal of New Zealand
18-03-2020 William Rodney Swan Versus The Queen High Court of Australia
11-03-2020 Kelvin Clive Wood Versus The Queen Court of Appeal of New Zealand
02-03-2020 The Principal Commissioner of Customs, Chennai-VII Commissionerate, Chennai V/S M/s. Sea Queen Shipping Services (P) Ltd., Adyar, Chennai High Court of Judicature at Madras
02-03-2020 Leanne Maree Crighton Versus The Queen Court of Appeal of New Zealand
20-02-2020 Jimmy Peter Akuhata Versus The Queen Court of Appeal of New Zealand
05-02-2020 Zeki Ray Kadir Versus The Queen High Court of Australia
06-09-2019 Papa Manu Versus The Queen Court of Appeal of New Zealand
15-08-2019 Shane Arron Hunter Versus The Queen Court of Appeal of New Zealand
07-08-2019 Wen Xu Versus The Queen Court of Appeal of New Zealand
31-07-2019 Her Majesty The Queen Versus R.V. Supreme Court of Canada
29-07-2019 Shayal Upashna Sami Versus The Queen Court of Appeal of New Zealand
11-07-2019 Keith Bartram Versus The Queen Court of Appeal of New Zealand
10-07-2019 Gang Chen & Another Versus The Queen Court of Appeal of New Zealand
09-07-2019 Zen Pulemoana Versus The Queen Court of Appeal of New Zealand
08-07-2019 Kovinantie Fukofuka Versus The Queen Court of Appeal of New Zealand
05-07-2019 Majesty The Queen Versus Albert Penunsi Supreme Court of Canada
01-07-2019 Danial John Keeley Versus The Queen Court of Appeal of New Zealand
28-06-2019 Patrick John Goldfinch Versus Her Majesty The Queen Supreme Court of Canada
13-06-2019 QI XIE Versus The Queen Court of Appeal of New Zealand
11-06-2019 Kevin Martin Matthews Versus The Queen Court of Appeal of New Zealand
04-06-2019 Ngakiri Williams Versus The Queen Court of Appeal of New Zealand
31-05-2019 Tom Le Versus Her Majesty The Queen Supreme Court of Canada
24-05-2019 Bradley David Barton Versus Her Majesty The Queen Supreme Court of Canada
10-05-2019 Ram Parshotam Mittal & Others Versus Hotel Queen Road Pvt. Ltd. & Others Supreme Court of India
07-05-2019 Jason Phillip Dehaar Versus The Queen Court of Appeal of New Zealand
18-04-2019 Sean Patrick Mills Versus Her Majesty The Queen Supreme Court of Canada
12-04-2019 Rajeshwar Singh Versus The Queen Court of Appeal of New Zealand
10-04-2019 The Queen Versus Dylan Cossey Court of Appeal of New Zealand
09-04-2019 Tuatahi Te Parau Gotz Versus The Queen Court of Appeal of New Zealand
28-03-2019 Corey Lee James Myers Versus Her Majesty The Queen Supreme Court of Canada
22-03-2019 Shaun Thomas Bishop Butler Versus The Queen Court of Appeal of New Zealand
12-03-2019 Christian Lee Hone Hobson Versus The Queen Court of Appeal of New Zealand
28-02-2019 Stead Nuku Versus The Queen Court of Appeal of New Zealand
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
08-11-2018 Virgil Balajadia & Another Versus The Queen Court of Appeal of New Zealand
31-10-2018 Jesse-James Winter & Another Versus The Queen Court of Appeal of New Zealand
18-10-2018 John Garry Davidoff Versus The Queen Court of Appeal of New Zealand
11-10-2018 Iraia Aranga Ngamotu Burton Versus The Queen Court of Appeal of New Zealand
10-10-2018 Eric Walter Smith Versus The Queen Court of Appeal of New Zealand
05-10-2018 William Arthur Parkin Versus The Queen Court of Appeal of New Zealand
18-09-2018 Kelly William Stewart Versus The Queen Court of Appeal of New Zealand
11-09-2018 NZME Publishing Limited & Others Versus The Queen & Another Court of Appeal of New Zealand
10-09-2018 Shannon Taimania Heemi Versus The Queen Court of Appeal of New Zealand
06-09-2018 Heather Gleason-Beard Versus The Queen Court of Appeal of New Zealand
23-08-2018 Laurence Tyson Te Ruki & Another Versus The Queen Court of Appeal of New Zealand
10-08-2018 Rodney George Martel & Others Versus The Queen Court of Appeal of New Zealand
20-07-2018 Her Majesty The Queen & Others Versus Derek Brassington & Others Supreme Court of Canada
13-07-2018 Her Majesty The Queen in Right of British Columbia Versus Philip Morris International, Inc. & Others Supreme Court of Canada
09-07-2018 Michael Robert Pollard Versus The Queen Court of Appeal of New Zealand
06-07-2018 William Hines Versus The Queen Court of Appeal of New Zealand
02-07-2018 Benjamin Shepherd Versus The Queen Court of Appeal of New Zealand
29-06-2018 Richard Alan Suter Versus Her Majesty The Queen Supreme Court of Canada
22-06-2018 David Shaun Galloway Versus The Queen Court of Appeal of New Zealand
20-06-2018 Paul Ian Lane Versus The Queen High Court of Australia
13-06-2018 Jeffrey G. Ewert Versus Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution & the Warden of Mission Institution) & Others Supreme Court of Canada
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
25-05-2018 Wing Wha Wong Versus Her Majesty The Queen & Others Supreme Court of Canada
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
09-05-2018 John Collins Versus The Queen High Court of Australia
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
19-04-2018 Her Majesty The Queen Versus Gerard Comeau & Others Supreme Court of Canada
13-04-2018 Marie-Eve Magoon & Another Versus Her Majesty The Queen Supreme Court of Canada
26-03-2018 Isaac Cruz Eru Broughton Versus The Queen Court of Appeal of New Zealand
23-03-2018 Bruce Carson Versus Her Majesty The Queen Supreme Court of Canada
23-03-2018 Zhuoling Gao & Others Versus The Queen Court of Appeal of New Zealand
21-03-2018 Ronald Michael Craig Versus The Queen High Court of Australia
21-03-2018 Hone Rankin Daniels Versus The Queen Court of Appeal of New Zealand
15-03-2018 Matthew John Young Versus The Queen Court of Appeal of New Zealand
09-02-2018 Canadian Broadcasting Corporation Versus Her Majesty The Queen & Others Supreme Court of Canada
02-02-2018 Williams Lake Indian Band Versus Her Majesty The Queen in Right of Canada as Represented by the Minister of Aboriginal Affairs & Northern Development Canada & Others Supreme Court of Canada
21-12-2017 Donald Joseph Boutilier Versus Her Majesty The Queen & Others Supreme Court of Canada