The Queen v Cindy Taylor Luana Taylor Brian Taylor

• Jurisdiction: New Zealand
• Judgment Date: 28 November 2016
• Neutral Citation: [2016] NZHC 2846
• Date: 28 November 2016
• Docket Number: CRI-2015-092-009276
• Court: High Court

The Queen

and

Cindy Taylor Luana Taylor Brian Taylor

[2016] NZHC 2846

CRI-2015-092-009276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Sentencing for manslaughter, by failing to provide the necessaries of life, thereby causing death. This was an offence pursuant to s150A Crimes Act 1961 (“CA”)(misconduct of human remains), s151 CA (duty to provide necessaries and protect from injury), s160(2)(b) CA (culpable homicide — by an omission without lawful excuse to perform or observe any legal duty), s171 CA (manslaughter) and s177 CA (punishment of manslaughter). The defendant was also convicted under s228(1)(b) CA (dishonestly taking or using document) after she withdrew superannuation funds deposited into her uncle and mother's bank accounts after their deaths — two other offenders were sentenced under s195A CA (ill-treatment or neglect of child or vulnerable adult) — the deceased was 76 years old who had died of dehydration and malnutrition

Counsel:

N E Walker and J M Pridgeon for Crown

P Kaye and R Keam for C Taylor

M Mortimer and R McCausland for L Taylor

L Freyer and T Fitzgibbon for B Taylor

JUDGMENT OF THE COURT

Introduction

1 Ms Taylor and Mr and Mrs Taylor, you appear today for sentencing today, having been found guilty of various charges by a jury on 5 August 2016. You may remain seated, until I ask you to stand.

2 Ms Taylor, you were found guilty of manslaughter, by failing to provide your mother, Ena Lai Dung, with the necessaries of life, thereby causing her death. This is an offence pursuant to ss 150A, 151, 160(2)(b), 171 and 177 of the Crimes Act 1961. It is punishable by a maximum penalty of life imprisonment. You were also found guilty of two charges of dishonest use of documents, namely eftpos cards, belonging respectively to your deceased uncle, William Joe, and your mother. Both of these charges were representative charges. Each was an offence pursuant to s 228(1)(b) of the Crimes Act, and each carries a maximum penalty of seven years' imprisonment.

3 Mr and Mrs Taylor, both of you were found guilty of failing to protect a vulnerable adult, namely Ms Dung. This is an offence pursuant to s 195A of the Crimes Act, and it is punishable by a maximum penalty of 10 years' imprisonment.

4 You were all initially due to be sentenced on 21 September 2016. However, application was made by your counsel, Mrs Taylor, for an adjournment. She advised that a psychologist had been instructed to prepare a report in relation to you. I accepted that you should be given the opportunity to put before me all relevant information. At the conclusion of the trial I made it clear that a sentence of imprisonment was inevitable for you, Ms Taylor, and all but inevitable for you, Mr and Mrs Taylor. No doubt as a result, the adjournment request was not opposed by other counsel. Because one or more counsel, and/or I, were not available earlier, it was necessary to delay the sentencing until today.

5 A psychologist's report has been received, albeit very belatedly, from a Dr Sakdalan. I refer to it shortly.

Relevant facts

6 The deceased and her husband initially lived in Whakatane, with you, Ms Taylor. Although you have since taken the name Taylor by deed poll, you are the natural daughter of the deceased and her husband.

7 When the Dungs were living in Whakatane, they came to know you, Mr and Mr Taylor, and you became long-term friends.

8 In about 2007, Ms Dung and her husband moved to Taupo, and then, in late 2011 or early 2012, they moved to Auckland into a house occupied by you, Mr and Mrs Taylor, in Manurewa. Ms Dung's brother, William Joe, also lived in your house.

9 At a relatively early stage, Ms Dung and her husband separated and he moved out. William Joe died in June 2013, and Ms Taylor, you subsequently moved into the house. It seems that you wanted to reconcile with your mother, having earlier become estranged from her. It was intended that you would look after your mother and an agreement in this regard was entered into with Mr and Mrs Taylor.

10 Ms Dung continued to reside in the house at Manurewa. She had no substantive contact with anybody other than the three of you. The evidence at trial from a neighbour suggested that Ms Dung was “quite normal” in mid 2013. However when the same neighbour saw her again in September or October 2014, she was observed to be (in his words), “really skinny” with legs like “toothpicks”. At much the same time the neighbour observed you, Ms Taylor, emotionally and physically abusing your mother. She was sitting on the backdoor steps at the time. You were standing over her, pulling her hair forcefully to make her look at you, and yelling abuse at her.

11 Ms Taylor, by December 2014, you were working for a carparking company. You were regarded as a good employee. You worked long hours, and you willingly did night shifts. You had a long commute to get to work. You had little free time. Nevertheless you were also responsible for looking after your mother when you got home. You also did chores for Mr and Mrs Taylor, for example cleaning the house and running errands.

12 On 16 January 2015, shortly after 9.00 pm, a 111 call was made by you, Mrs Taylor, to the emergency services. You told the operator that you believed 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 you 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 you, Ms 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 you, Mr 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.

22 Ms Taylor, you were responsible for the care of your mother in the period leading up to her death. You did not provide her with even the most basic care or assistance. You failed to provide her with the necessaries of life and, in particular, with adequate nourishment, hydration, medical care, and hygiene. You failed to summon assistance for her or to arrange for medical attention or hospitalisation.

23 Mr and Mrs Taylor, you were aware of Ms Dung's deteriorating condition, and of Ms Taylor's failure to look after her mother. The house was small – approximately 95 square metres. You slept either in the master bedroom, which was next to Ms Dung's room, or in the lounge, which was only a short distance away down a hallway. You shared the same toilet and laundry facilities as Ms Dung. You observed food being taken to her room. You must have observed that it was often returned uneaten. You both knew about Ms Dung's loss of weight. You cannot have been unaware of the stench of urine, defecation and rotting flesh coming from Ms Dung's room. You knew that there were flies and maggots in her room, and that Ms Taylor was using cleaning...