Taylor v R [2012] NZCA 332 (27 July 2012)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Taylor v R [2012] NZCA 332 (27 July 2012)

Last Updated: 1 August 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/2011 [2012] NZCA 332

BETWEEN ARTHUR WILLIAM TAYLOR Appellant

AND THE QUEEN Respondent

Hearing: 16 July 2012

Court: Harrison, Potter and MacKenzie JJ

Counsel: Appellant in person S B Edwards for Respondent

Judgment: 27 July 2012 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

2. The appeal against sentence is allowed. The sentence of seven years imprisonment with a minimum term of non-parole of three and a half years cumulative upon the appellant’s current term of imprisonment is quashed. A sentence of five and a half years imprisonment with a minimum term of non-parole of two years and nine months cumulative upon the appellant’s current term of imprisonment is substituted.
   

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Arthur William Taylor was found guilty on one charge of conspiring to supply methamphetamine following a trial before a Judge and jury in the High Court at Auckland in February 2011. He was acquitted on three additional charges of offering to supply methamphetamine. The trial Judge, Wylie J, sentenced him to a term of seven years imprisonment cumulative upon an existing term of 12 years, with a minimum term of non-parole of three and a half years.[1]
[2] Mr Taylor appeals against his conviction on the grounds that the jury’s verdict was unreasonable or that there was a miscarriage of justice. He appeals against his sentence on the ground that it was excessive and a minimum term should not have been imposed.
[3] We record that in memoranda filed with the Court before the hearing of his appeal, and again at the commencement of the hearing itself, Mr Taylor complained that the prison authorities had deprived him of adequate facilities to properly prepare his argument on appeal and, as a result, he had been unable to provide a written synopsis of submissions. However, Mr Taylor had earlier filed a well particularised notice of appeal, and he was able to advance and develop his grounds fully and articulately in argument before us. We were satisfied that Mr Taylor was not at all disadvantaged in presenting his appeal by any difficulties he may have encountered with the prison authorities.

Facts

[4] At the time of the alleged offending Mr Taylor was a serving prisoner at Paremoremo Prison, near Auckland. Over a continuous 32 hour period in early June 2007 the police intercepted a number of communications between Mr Taylor and two other men, Messrs Ulaiasi Pulete and Wayne Clarke, in the form of calls and texts to and from a mobile telephone which was illegally in Mr Taylor’s possession. The police were acting pursuant to a warrant earlier issued by the High Court under the Misuse of Drugs Amendment Act 1978.
[5] Wylie J summarised the evidence relating to the intercepted communications in this way when sentencing Messrs Taylor and Pulete on 19 May 2011:

[7] The conversations commenced at 4.15 pm on 2 June 2007, and ended shortly after midnight on 3 June 2007. Mr Taylor initially contacted Mr Clarke, telling him to “get his wallet out”, and saying that he had access to quantities of what everybody was looking for. He indicated that the product had to be picked up from Auckland. In a later text message, Mr Taylor stated that he had been back in touch with his old contacts. Mr Clarke then sent a text message to Mr Taylor asking how much he wanted for “a hundred of them”. Mr Taylor replied that the smallest amount was a “round one” and that the price was “12k”. Mr Taylor made it clear that he was talking about “dry ones”.

[8] A short time later, at approximately 11.35 am on 3 June 2007, Mr Clarke rang Mr Taylor. There was a brief discussion between them. Mr Clarke thought that Mr Taylor was offering him one thing – perhaps ecstasy tablets – whereas Mr Taylor was offering him another thing – methamphetamine. Both discussed the confusion, and Mr Taylor made it clear that he was offering “round things – you know the white things”. There were references by Mr Taylor to “big ones”, and to “O’s”. Mr Taylor then said, “They are O’s of you know what, O’s of P". He confirmed the price at “12k”.

[9] A little later at 3.18 pm, on 3 June 2007, there was a further conversation between Mr Clarke and Mr Taylor. Mr Clarke indicated that he had some people who were after “one of those things, maybe two”. Mr Taylor asked Mr Clarke to let him know what they wanted, and he again confirmed the price. He explained that delivery would be made in Auckland. Later in the conversation, Mr Clarke asked Mr Taylor to “keep three aside”. Mr Taylor agreed.

[10] Immediately thereafter, Mr Taylor sent a text message to Mr Pulete, telling him that he had somebody who wanted at least “two and probably three of those” within a day. Mr Pulete replied that “that was good news”, and confirmed that he had three “sitting there right now”. He thanked Mr Taylor and Mr Taylor replied thanking him. There were subsequent text messages about timing, delivery, payment, and quality involving Mr Taylor, Mr Pulete and Mr Clarke. It is clear that Mr Pulete was familiar with the product, but he was not in direct contact with Mr Clarke. Mr Clarke’s questions about quality were relayed by Mr Taylor to Mr Pulete. Mr Pulete gave the necessary answers to Mr Taylor who in turn relayed those answers to Mr Clarke.

[11] In any event, the supply did not proceed because Mr Clarke’s end customer or customers were unable to raise sufficient funds to complete the purchase. Both Mr Taylor and Mr Pulete nevertheless hoped that any supply would be ongoing. Mr Pulete advised that he would be “regular” in the future if he was “instructed”.

[12] It is clear from the conversations that the quantity of methamphetamine the subject of the conspiracy to supply was three ounces – valued at $12,000 an ounce. It is also clear that both Mr Taylor and Mr Pulete played significant roles in the conspiracy. Mr Taylor’s role was to facilitate and negotiate the sale. Mr Pulete was to provide the methamphetamine to be supplied.

Conviction

Unreasonable verdict

(a) Discharge of co-accused

[6] Mr Taylor submits that the jury’s verdict was unreasonable on two discrete grounds. First, he says it unreasonably found him guilty on a charge of conspiring with a Wayne Clarke when the person whom the Crown relied on throughout as the Wayne Clarke who allegedly participated in the intercepted communications was acquitted at trial pursuant to s 347 of the Crimes Act 1961.
[7] We can address this point shortly. The indictment originally charged Messrs Taylor, Pulete and Clarke with conspiring to supply methamphetamine. The Crown’s case was that the Wayne Clarke identified in the intercepted communications was a person who was then a serving inmate at Rimutaka Prison. He was the person charged and who appeared at trial. However, at the end of its case the Crown accepted that it did not have a sufficient evidential basis for this allegation.
[8] Wylie J discharged Mr Clarke on the conspiracy count accordingly. With leave, and without opposition from Mr Taylor, who represented himself at the trial, the Crown filed an amended indictment. Messrs Taylor and Pulete were then charged with conspiring “together with a person known as Wayne Clarke” to supply the drug.
[9] In law a conspiracy is an agreement between two or more people to commit an offence and to assist each other in its implementation or to put their common design into effect, and is complete once the agreement is reached. Thus it was sufficient for the Crown to establish the existence of such an agreement between Messrs Taylor and Pulete in order to prove the guilt of either or both. The amended charge, however, included the element of an agreement with a third party, being “a person known as Wayne Clarke”. It was irrelevant to proof of the case against Mr Taylor that the Mr Clarke was not the person originally charged with and on trial for the same offence. Proof of the identity of the third party was not a necessary element of the offence. The jury only had to be satisfied that Messrs Taylor and Pulete conspired with a “person known as Wayne Clarke”.
[10] Wylie J directed the jury that the Crown was required to prove that each of Messrs Taylor and Pulete agreed with the other and with the person referred to as Mr Clarke to commit an offence. Arguably the terms of this direction were more favourable to Mr Taylor than the law requires, in directing that proof was necessary that the agreement was of a tripartite nature, and it is significant that Mr Taylor did not object to or query the direction. To the contrary, when asked by the Judge at the conclusion of the summing up whether he wished anything to be added or corrected, Mr Taylor replied in the negative and added his opinion that the summing up was “exceptionally comprehensive and very fair”.
[11] In these circumstances it cannot be said that the jury’s verdict on the conspiracy charge was unreasonable and we are independently satisfied that the Crown’s case had a strong factual foundation given the existence, contents of and parties to the intercepted communications.

(b) Inconsistent verdicts

[12] Second, Mr Taylor submits that the jury’s verdict on the conspiracy charge is unsupportable because it is inconsistent with its verdicts of not guilty on the three other charges alleging that Messrs Taylor and Pulete offered on or about 27 or 31 May 2007 to supply methamphetamine to three different men.
[13] To succeed on this ground Mr Taylor must establish that the four jury verdicts – one of guilty of conspiracy and three of not guilty of offering to supply methamphetamine – could not stand together, in the sense that no reasonable jury which had applied its collective mind properly to the facts could have arrived at those verdicts.[2]
[14] Mr Taylor has failed to satisfy us that the verdicts were inconsistent. The elements of the two categories of charges were distinct and discrete. As noted, the crime of conspiracy is proved by an agreement between two or more people to commit an offence and to assist each other in its implementation and is complete once agreement is reached. By contrast, on the charges of offering to supply methamphetamine, the Crown was required to prove three different elements: the existence of an offer by Mr Taylor to supply a substance to an identified person; that the substance was methamphetamine; and that Mr Taylor intended that his words be understood as a genuine offer. The Crown was not required to prove the existence of an agreement between Mr Taylor and another, as it would for the offence of conspiracy.
[15] The jury’s verdicts simply reflect that it was not satisfied that the Crown had proved beyond reasonable doubt all three elements of any of the charges of offering to supply methamphetamine. The different verdicts do not show that they could not stand together. This ground of appeal must also fail.

Miscarriage of justice

[16] Alternatively, Mr Taylor submits that there was a miscarriage of justice on three separate grounds.

(a) Delay in laying charges

[17] First, Mr Taylor says that Wylie J erred in dismissing his application made before trial challenging the admissibility of evidence, and applying for a stay of proceedings and for an order for discharge pursuant to s 347. At the conclusion of argument on 4 February 2011, Wylie J advised that he had decided to dismiss Mr Taylor’s applications. He was not, however, able to deliver his reasons for another three months, until 6 May 2011.
[18] Mr Taylor was critical of this delay in giving reasons. Wylie J recorded that he had been committed to another trial in the intervening three months. While we fully accept and understand the Judge’s position, it would have been preferable if he had recited his reasons in brief or summary form before or immediately upon conclusion of the trial. Trial Judges are not expected to commit their reasons for determining trial applications to a judgment type structure if time does not permit. This Court understands the pressures under which trial Judges operate, particularly in a case such as this where numerous directions and rulings were required. We would add that Wylie J’s bench notes and minutes issued progressively during the trial were exemplary both in their accuracy and content, and have provided a complete picture of the trial’s progress.
[19] The essence of Mr Taylor’s argument is that the evidence obtained under the relevant warrant should have been ruled inadmissible and the prosecution stayed because the police consciously decided to wait for a period of about 15 months between obtaining the necessary evidence against him and laying charges. In argument before us, Mr Taylor expanded upon this ground to focus on evidence given on a voir dire hearing before Wylie J by Detective Senior Sergeant Gregory Turner when the trial opened on 1 February 2011. Mr Turner is in charge of the Western Bay of Plenty CIB, based in Tauranga.
[20] By way of brief background to considering this submission, we note that Lang J issued the interception warrant under the Misuse of Drugs Amendment Act on 16 May 2007. The police were then investigating the disappearance of Grant Adams of Tauranga, a known drug addict and dealer. Mr Taylor was one of the three persons identified in the warrant. Over the next 30 days the police obtained the evidence which formed the subject of the charges against Mr Taylor of conspiracy and offering to supply methamphetamine. The police did not apply to renew this warrant.
[21] On 13 June 2007 Harrison J issued an interception warrant under s 312CB of the Crimes Act. By this stage the police had commenced a homicide inquiry into Mr Adams’ disappearance. Mr Taylor was not one of the nominated parties and the supporting affidavit did not refer to Mr Taylor or any evidence obtained under the earlier warrant. On 27 June 2007 Mr Ashby was arrested and charged with Mr Adams’ murder and with some methamphetamine charges.
[22] On 9 May 2008 Winkelmann J issued a further warrant under the Misuse of Drugs Amendment Act. Messrs Taylor and Pulete were two of the three nominated parties. The warrant was renewed on 27 June 2008 and again in July 2008. It is common ground that the police did not obtain any further evidence of offending by Mr Taylor when acting under the authority of these warrants.
[23] On 17 September 2008 the police charged Mr Taylor with conspiracy and possession for supply.
[24] In support of his submission of conscious and unnecessary delay, Mr Taylor relies on Detective Senior Sergeant Turner’s evidence. In cross-examination by Mr Taylor the officer said he made a decision in about June 2007, after the first interception warrant had expired, not to charge Mr Taylor even though the police had obtained all the evidence which formed the subject of the charges actually laid in September 2008. Mr Turner had earlier explained that, to the extent that execution of the warrant had disclosed offending outside the Bay of Plenty, he had decided not to follow it up himself. Instead, he passed the information to Detective Inspector Bruce Goode, who was responsible for investigating offending within the Auckland region where Mr Taylor was serving a sentence at Paremoremo Prison.
[25] Detective Sergeant Michael Paki also gave evidence at the voir dire hearing. At the relevant time he was based on the North Shore and responsible for the enquiry into the offending disclosed by the intercepted communications in June 2007. His involvement did not start until late 2007 or early 2008 when a new unit was established for the purposes of examining the intercepted material. Once that exercise had been completed, the police at North Shore decided further inquiries were necessary. On that basis they obtained the three successive warrants under the Misuse of Drugs Amendment Act in May, June and July 2008 to monitor Mr Taylor’s telephone communications. The investigation came to an end on 2 September 2008, and shortly afterwards Mr Taylor was charged.
[26] In his reasons for dismissing Mr Taylor’s application,[3] Wylie J carefully reviewed the factual background to determine whether the 15 month delay between June 2007, when the evidence of Mr Taylor’s offending was available, and September 2008, when he was charged, was undue. In reliance on earlier authority in the High Court, the Judge inquired whether in the circumstances this period jeopardised Mr Taylor’s right to a fair trial, bearing in mind that Mr Taylor bore the onus of showing that he would probably suffer prejudice from any delay to the extent that a fair trial was now impossible. After examining the evidence, the Judge concluded that the relevant 15 month period did not constitute a delay which caused any prejudice to Mr Taylor.[4]
[27] Mr Taylor has not persuaded us that Wylie J erred. There was nothing inordinate or unreasonable about the administrative delays which occurred when the police passed responsibility for the investigation from one regional unit to another. The process may have taken longer than if the inquiry had been handled throughout by the same police unit but that is not a ground for complaint. Mr Taylor acknowledged before us that operational factors can operate to justify a period of delay. We are satisfied that this delay, such as it was, is explicable on that basis. And we record, for the purposes of completeness, that Mr Taylor volunteered his acceptance that no principle of issue estoppel could arise in criminal law from Mr Turner’s decision in June 2007 not to charge Mr Taylor at that stage.
[28] Moreover, Mr Taylor has failed to persuade us that he suffered any prejudice from the delay to the extent that a fair trial was not possible. He did not attempt to advance an argument to this effect. His challenge must fail accordingly.
[29] In this respect Mr Taylor also raised but did not develop an argument that the police had breached s 28 of the Misuse of Drugs Amendment Act as follows:

28 Report to be made to Judge on use of warrant or permit

(1) As soon as practicable after an interception warrant or an emergency permit has expired, the member of the Police who applied for it, or (if he is unable to act) another commissioned officer of Police, shall make a written report to the Judge who granted the warrant or permit, or (if he is unable to act) to another Judge, on the manner in which the power conferred by the warrant or permit has been exercised and the results obtained by the exercise of that power.

...

(3) Without limiting the generality of subsection (1) of this section, every report made for the purposes of that subsection shall contain the following information:

(a) Where the interception device was placed:

(b) The number of interceptions made by means of the interception device:

(c) Whether any relevant evidence was obtained by means of the interception device:

(d) Whether any relevant evidence has been, or is intended to be, used in any criminal proceedings:

(e) Whether any records of a private communication intercepted pursuant to the warrant or permit have been destroyed in accordance with section 21 or section 22 of this Act, and, if not, why they have not been destroyed:

(f) Whether the interception device has been retrieved, and, if not, why it has not been retrieved.

...

[30] On this issue, Wylie J inquired whether there was a failure to file a proper or adequate report and if so whether that failure rendered any evidence obtained inadmissible.[5] It was common ground that, in February 2011, the police had not filed a report under s 28. In the High Court, and again before us, Mr Taylor submitted that the police should have filed a report as soon as possible after the first interception warrant had expired in June 2007.
[31] In T v R[6] this Court held that the requirement to file a report as soon as practicable after the interception warrant has expired is not of a purely temporal nature. In some cases, the requirement to report might not arise until after the criminal proceedings have concluded. Moreover, even if the police failed to discharge the statutory obligation, the failure does not of itself render the evidence inadmissible.
[32] Wylie J was not satisfied that the police had breached their obligations under s 28, and nor are we.[7] In our judgment s 28 is not designed to bear upon or affect issues of admissibility of evidence at trial but to satisfy the Judge who granted the warrant that the police have acted lawfully within the terms of their power. As we have observed, Mr Taylor has not suggested that when executing the first interception warrant the police acted unlawfully or in excess of their powers. He does not suggest that the warrant was invalidly granted or that the information was improperly obtained from the intercepted communications. This ground of appeal must also fail.

(b) Newspaper article

[33] Second, Mr Taylor submits that Wylie J erred in allowing the trial to continue after an article was published in “The Weekender” edition of the Truth newspaper on 4 February 2011, immediately before the jury was empanelled. Mr Taylor submits that the article published extremely prejudicial material about him, describing him as a “high profile career criminal” and “a notorious prison escapee with an extensive criminal history which includes drug and armed robbery convictions”.
[34] Mr Taylor raised the same objection before Wylie J. In his ruling no 3 issued on 4 February 2011, the Judge dismissed Mr Taylor’s application to adjourn or stay the trial.[8] He noted that it would be necessary to give the jury firm directions that at the time of the alleged offending both Messrs Taylor and Pulete were serving prisoners in custody at Paremoremo, New Zealand’s highest security prison.[9] He expressed his intention to request members of the panel to advise if they had read any recent publicity about the background to the trial and, once the jury was empanelled, to direct it to avoid media publications and not make its own internet enquiries. It transpired that one person whose name was called from the wider jury panel advised the Judge that he was aware of adverse publicity about Mr Taylor. The Judge excused that person.
[35] We are satisfied that the steps taken by Wylie J were both appropriate and effective to avoid any possible prejudice caused to Mr Taylor by publication of the article. Moreover, we note Mr Taylor’s participation in both the content and timing of the article. He had earlier written a letter to “The Weekender”, complaining about the police use of informants to provide evidence in serious drug cases, advising that some charges had been dropped and expressing his confidence that his application to exclude certain evidence would be successful. Extracts from his letter were reproduced prominently in the article.
[36] Mr Taylor’s decision to write to “The Weekender” before his trial was unusual. He is not unfamiliar with the legal system or the risks inherent in media publication of material before trial. We can only infer that he wrote to the newspaper with the intention that his letter be published, accompanied if necessary by editorial comment. It follows that we are satisfied he played a significant part in generating publication of what he terms a prejudicial article just before his trial.

(c) Amended indictment

[37] Third, Mr Taylor’s notice of appeal asserted that Wylie J wrongly allowed the Crown to file an amended indictment following Mr Clarke’s discharge under s 347 and failed to properly or adequately direct the jury on the consequences. Quite properly, Mr Taylor did not attempt to develop that ground in argument. He did not oppose the Crown’s application for amendment at trial, and nor did he have sufficient grounds to do so. Similarly, Mr Taylor raised no objection with the trial Judge after the summing up. As we have noted, to the contrary he was most complimentary (and properly) of its fairness and content. This ground of appeal must also be dismissed.
[38] It follows that Mr Taylor’s appeal against conviction fails.

Sentence

[39] Mr Taylor submits that the sentence imposed by Wylie J of seven years imprisonment following his conviction on one charge of conspiring to supply methamphetamine was excessive. He also submits that a minimum term was unnecessary.
[40] Wylie J structured his sentence in this way. First, based upon the sentencing bands for discrete methamphetamine dealing offences identified by this Court in R v Fatu,[10] he was satisfied that a sentence in the range of three to nine years imprisonment was appropriate. The relevant band, band 2, applies where the amount of methamphetamine involved is between five and 250 grams. The Judge found that the amount of methamphetamine involved in this offending was 84 grams or three ounces. On this basis he was satisfied that conviction on a charge of supplying this amount would have warranted a starting point of four and a half to five years imprisonment. However, in accordance with authority in this Court, he reduced that starting point to four years to recognise that the offence was one of conspiracy to supply, noting that the relevant criminality was close to fruition.
[41] Second, the Judge increased the starting point by two years, to take into account the aggravating feature of Mr Taylor’s commission of the offences while a serving prisoner. In the Judge’s view, his offending mocked the deterrent sentences already imposed, negatively impacted on community perceptions of custodial sentences, indicated a total disregard for the original sentences and indicated a high risk of reoffending.
[42] Third, the Judge added a further year on account of the further aggravating feature of what he described as Mr Taylor’s “appalling criminal record”. He placed weight particularly upon his previous drug related convictions – for cultivating cannabis in 1993, for which he received a sentence of two years imprisonment, and for dealing in cannabis, cannabis oil and morphine in 2007, for which he received a sentence of four years imprisonment.
[43] Mr Taylor submits that the sentence imposed of seven years imprisonment breached the totality principle. He says that it was excessive when added to and cumulative upon his existing sentence of 12 years imprisonment, making a total of 19 years. At the time he was sentenced his statutory release date was 13 April 2017. It will now be deferred until 13 April 2022.
[44] In answer to this submission Ms Edwards for the Crown relied on this Court’s decision in R v Connelly.[11] In that case the Court, while recognising the principle of increasing a starting point to take account of offences committed while serving a term of imprisonment, was concerned with the totality principle in the sense identified by Mr Taylor of adding a new sentence to an existing term of imprisonment where the offending had occurred within the prison. However, Connelly does not assist us because we are not persuaded by Mr Taylor’s argument in reliance on the totality principle.
[45] In our judgment, the sentence was excessive for a different reason. The starting point adopted by the Judge of four years imprisonment was at the high end of the scale. Mr Taylor properly makes the point that the police found no drugs or money, and did not uncover any further evidence of offending under the warrants issued in 2008. While the Judge correctly found that Mr Taylor played a significant role in the conspiracy as the facilitator and negotiator of sales, we are mindful that he was convicted primarily on the evidence of a limited number of telephone calls and text messages on a charge of conspiracy to supply which did not proceed past the communications stage.
[46] Wylie J was right in principle to increase the base starting point to take account both that the offending occurred while Mr Taylor was in prison and his previous drug related convictions. However, the aggregate of the uplift must bear some reasonable relationship or proportionality to the starting point which is the otherwise appropriate sentence for the circumstances of the offending. In this case, the total uplift of three years equalled 75 per cent of the starting point. In aggregate, that was excessive. In our judgment, a total increase of 18 months or 40 per cent of the base starting point was appropriate to take proper account of the aggravating features while remaining proportionate to that starting point. The end sentence should have been five and a half years imprisonment.
[47] Mr Taylor separately appealed against the imposition of a minimum term. However, he did not pursue an argument in support and we are satisfied that it was appropriate for Wylie J to impose a minimum term here. Nevertheless, given the reduction in the final sentence, the minimum term must be reduced accordingly to two years and nine months.

Result

[48] Mr Taylor’s appeal against conviction is dismissed.
[49] Mr Taylor’s appeal against sentence is allowed. The sentence of seven years imprisonment together with a minimum term of non-parole of three and a half years cumulative upon Mr Taylor’s current term of imprisonment is quashed. A sentence of five and a half years imprisonment with a minimum term of non-parole of two years and nine months cumulative upon Mr Taylor’s current term of imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Taylor HC Auckland CRI-2010-404-355, 19 May 2011.
[2] R v H [2000] 2 NZLR 581 (CA) at [22]; and M (CA427/2011) v R [2012] NZCA 270 at [97].
[3] R v Taylor HC Auckland CRI-2010-404-355, 6 May 2011.
[4] At [55]–[59].
[5] At [39].
[6] T v R [2011] NZCA 2.
[7] At [45].
[8] R v Taylor HC Auckland CRI-2010-404-355, 4 February 2011.
[9] At [9].
[10] R v Fatu [2006] 2 NZLR 72.
[11] R v Connelly [2010] NZCA 52.